[Federal Register: March 12, 1999 (Volume 64, Number 48)]
[Rules and Regulations]
[Page 12555-12604]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12mr99-15]
[[pp. 12555-12604]] Assistance to States for the Education of Children With
Disabilities and the Early Intervention Program for Infants and
Toddlers With Disabilities
[[Continued from page 12554]]
[[Page 12555]]
being implemented for the child by that date, with the IEP specifying
the special education and related services that are needed in order to
ensure that the child receives FAPE, including any extended school year
services, if appropriate. (Section 612(a)(9) of the Act). If a child
with a disability is determined eligible to receive Part B services,
the public agency must convene a meeting and develop an IEP by the
child's third birthday, and must in developing the IEP determine when
services will be initiated. For 2-year olds served under Part C, the
public agency must meet with the Part C lead agency and the family to
discuss the child's transition to Part B services at least 90 days
(and, at the discretion of the parties, up to 6 months) before the
child turns 3. (See section 637 (a)(8)) of the Act). In order to ensure
a smooth transition for children served under Part C who turn 3 during
the summer months, a lead agency under Part C may use Part C funds to
provide FAPE to children from their third birthday to the beginning of
the following school year. (See section 638 of the Act).
Children with disabilities who have their third birthday during the
summer months are not automatically entitled to receive special
education and related services during the summer, and the public agency
must provide such services during the summer only if the IEP team
determines that the child needs extended school year services at that
time in order to receive FAPE. The substance of Note 1 should be
incorporated into the text of the regulation, because it sets forth
long-standing requirements that are based on the statute (see analysis
of ``General Comments'' relating to the use of notes under this part).
Changes: The substance of Note 1 has been added to the text of the
regulations, and the note has been deleted.
Comment: Some commenters expressed support for Note 2 (regarding
the determination of eligibility for children advancing from grade to
grade), and recommended that the substance of the note be incorporated
into the text of the regulations. A few of the commenters suggested
deleting the second sentence of Note 2 (relating to the IEP team)
before making the note a regulation. Other commenters recommended that
Note 2 be deleted, as it confuses the IEP team with the team that
determines eligibility.
Discussion: The revised IEP requirements at Sec. 300.347 require
public agencies to provide special education and related services to
enable students with disabilities to progress in the general
curriculum, thus making clear that a child is not ineligible to receive
special education and related services just because the child is, with
the support of those individually designed services, progressing in the
general curriculum from grade-to-grade. The group determining the
eligibility of a child who has a disability and who is progressing from
grade-to-grade must make an individualized determination as to whether,
notwithstanding the child's progress from grade-to-grade, he or she
needs special education and related services. The substance of Note 2,
as revised, should be incorporated into the text of the regulation,
because it sets forth long-standing requirements that are based on the
statute (see analysis of ``General Comments'' relating to the use of
notes under this part).
Changes: Section 300.121 has been revised to incorporate the
substance of Note 2, and the note deleted.
Comment: None.
Discussion: To ensure that children with disabilities have
available FAPE, consistent with the requirements of this part, it is
important for the Department to be able to verify that each State's
policies are consistent with their responsibilities regarding important
aspects of their obligation to make FAPE available. Therefore,
Sec. 300.121(b) should be revised to provide that each State's policy
regarding the right to FAPE of all children with disabilities must be
consistent with the requirements of Secs. 300.300-300.313.
Changes: Section 300.121(b) has been revised to provide that the
States' policies concerning the provision of FAPE must be consistent
with the requirements of Secs. 300.300-300.313.
Exception to FAPE for Certain Ages (Sec. 300.122)
Comment: Some commenters expressed support for Sec. 300.122(a)(2),
which sets forth an exception to the FAPE requirement for certain youth
who are incarcerated in adult correctional facilities, and Note 2 which
includes clarifying language from the House Committee Report. A few
commenters wanted the regulation to clarify the responsibility of a
State where reasonable efforts to obtain prior records from the last
reported educational placement have been made, but no records are
available. The commenter also requested adding a note to clarify that,
even if State law does not require the provision of FAPE to students
with disabilities, ages 18 through 21, who, in the last educational
placement prior to their incarceration in an adult correctional
facility were not identified as a child with a disability and did not
have an IEP under Part B of the Act, the State may choose to serve some
individuals who fit within that exception and include those individuals
within its Part B child count.
Discussion: Before determining that an individual is not eligible
under this part to receive Part B services, the State must make
reasonable efforts to obtain and review whatever information is needed
to determine that the incarcerated individual had not been identified
as a child with a disability and did not have an IEP in his or her last
educational placement prior to incarceration in an adult correctional
facility. The steps a State takes to obtain such information may
include a review of records, and interviewing the incarcerated
individual and his or her parents.
A State may include in its Part B child count an eligible
incarcerated student with a disability to whom it provides FAPE, even
if the State is permitted under Sec. 300.122(a)(2) and State law to
exclude that individual from eligibility. It is not necessary to
provide additional clarification regarding these issues in the
regulations.
Proposed Note 2 quoted from the House Committee Report on Pub. L.
105-17 which, with respect to paragraph (a)(2) of this section
(relating to certain students with disabilities in adult prisons),
stated that:
The bill provides that a State may also opt not to serve
individuals who, in the educational placement prior to their
incarceration in adult correctional facilities, were not actually
identified as a child with a disability under section 602(3) or did
not have an IEP under Part B of the Act. The Committee means to* *
*make clear that services need not be provided to all children who
were at one time determined to be eligible under Part B of the Act.
The Committee does not intend to permit the exclusion from services
under part B of children who had been identified as children with
disabilities and had received services under an IEP, but who had
left school prior to their incarceration. In other words, if a child
had an IEP in his or her last educational placement, the child has
an IEP for purposes of this provision. The Committee added language
to make clear that children with disabilities aged 18 through 21,
who did not have an IEP in their last educational setting but who
had actually been identified should not be excluded from services.
(H. R. Rep. No. 105-95, p. 91 (1997))
The concepts in this note are important in the implementation of
this program. Appropriate substantive portions of the note should be
clarified and included in the regulations. Consistent with the decision
to not include notes in these final regulations, the note should be
removed.
[[Page 12556]]
Changes: Section 300.122(a)(2) has been revised by adding
appropriate substantive portions of Note 2 to the text of the
regulation, to specify situations in which the exception to FAPE for
students with disabilities in adult prisons does not apply.
Comment: Some commenters expressed support for Sec. 300.122(a)(3)
(which provides that the obligation to make FAPE available does not
apply to students with disabilities who have graduated from high school
with a regular high school diploma), and Note 1 (which clarifies that
graduation with a regular high school diploma is a change of placement
requiring notice and reevaluation), and recommended that the substance
of the note be included in the text of the regulation. Other commenters
requested that Sec. 300.122(a)(3) and Note 1 be deleted because there
is no statutory basis for these regulatory interpretations. Several
commenters stated that, in most States, graduation is dependent on a
student's having met specific standards (State, local, or both).
A few commenters stated that some States have developed procedures
for disabled students to graduate with a diploma based on the IEP, and
recommended that the term ``regular'' be deleted from
Sec. 300.122(a)(3). Other commenters recommended deleting the language
about graduating with a regular high school diploma, and added that
many States have, with public input, established multiple graduation
diplomas and certificates. Other commenters recommended deleting the
provision, and added that some States are shifting from diplomas to
certificates of mastery based on what students know. A few commenters
stated that receipt of a diploma or age 21 is the only reason for
termination of eligibility, and, therefore, the requirement is
redundant and should be deleted.
Many commenters recommended deleting Note 1, stating that
graduation is not a change of placement, and that reevaluation is not
necessary and should not be required. These commenters stated the basis
for their recommendation by adding that: (1) With the addition of the
new IEP requirements such as benchmarks, reporting to parents, and
examination of transition needs at age 14, the reevaluation requirement
becomes redundant; (2) if the parents and student are provided notice
of the impending graduation and the IEP team concurs, the additional
step of reviewing current data and determining the nature and scope of
a reevaluation is unnecessary and will consume staff time and
resources; and (3) if parents believe their child should not graduate,
they have procedural avenues available to contest the graduation.
A few commenters stated that Sec. 300.122(a)(3) should not be
interpreted as prohibiting a State from using Part B funds to serve
students aged 18 through 21 who have attained a regular diploma but who
are still in the State-mandated age range.
Discussion: Because the rights afforded children with disabilities
under IDEA are important, the termination of a child's eligibility
under Part B is equally important. When public agencies make the
determination as to whether the Part B eligibility of a student with a
disability should be terminated because the student has met the
requirements for a regular high school diploma or that the student's
eligibility should continue until he or she is no longer within the
State-mandated age of eligibility, it is important to ensure that the
student's rights under the Act are not denied.
As the comment notes, a number of the new IEP requirements focus
increased attention on how children with disabilities can achieve to
the same level as nondisabled children. In implementing these new
requirements, it is important that the parents, participating in
decisions made in developing their child's IEP--including decisions
about their child's educational program (e.g., the types of courses the
child will take) and the child's participation in State and district-
wide high stakes assessments--understand the implications of those
decisions for their child's future eligibility for graduation with a
regular diploma.
The commenters persuasively point out that, there is a less
burdensome way to protect the interests of students with disabilities
under the Act whose eligibility for services is ending because of
graduation with a regular diploma or because they are no longer age
eligible. If an eligibility change is the result of the student's aging
out or receipt of a regular high school diploma, the statutory
requirement for reevaluation before a change in a student's eligibility
under section 614(c)(5) should not be read to apply.
Graduation with a regular high school diploma ends a student's
eligibility for Part B services, and is, therefore, a change in
placement requiring notice under Sec. 300.503 a reasonable time before
the public agency proposes to graduate the student. The new
requirements for transition planning and for reporting to parents
regarding the progress of their child, together with the notice to them
regarding proposed graduation, are sufficient to ensure that parents
are appropriately informed to protect the rights of their child. The
parents would have the option, as with any public agency proposal to
change the educational program or placement of a child with a
disability, to seek to resolve a disagreement with the proposal to
graduate the student through all appropriate means, including mediation
and due process hearing proceedings.
Exiting or graduating a student with a disability with a credential
that is different from the diploma granted to students who do not have
disabilities does not end an individual's eligibility for Part B
services, and is not a change in placement requiring notice under
Sec. 300.503. The second paragraph of proposed Note 1 clarified that if
a high school awards a student with a disability a certificate of
attendance or other certificate of graduation instead of a regular high
school diploma, the student would still be entitled to FAPE until the
student reaches the age at which eligibility ceases under the age
requirements within the State or has earned a regular high school
diploma. This clarification is consistent with the statute and final
regulations. However, consistent with the decision to not include notes
in the final regulations, the note should be deleted.
An SEA or LEA may elect to use Part B funds for services for a
student with a disability who has graduated with a regular high school
diploma but who is still within the State-mandated age range for Part B
eligibility, but may not include the student in its Part B child count.
For children aged 19 through 21, eligibility for services is a matter
of State discretion.
Changes: Section 300.122(a)(3) has been revised to make clear that
graduation from high school with a regular diploma is a change in
placement requiring notice in accordance with Sec. 300.503. Section
300.534(c), also has been revised to clarify that a reevaluation is not
required before the termination of a student's Part B eligibility due
to graduation with a regular high school diploma, or ceasing to be age-
eligible under State law. Note 1 has been removed.
Child Find (Sec. 300.125)
Comment: A few commenters expressed support for the statutory
provision reflected in Sec. 300.125(c), which states that nothing in
the Act requires that children be classified by their disability. Some
commenters believed that Sec. 300.125(c) is inconsistent with
Sec. 300.125(b)(3), which requires a
[[Page 12557]]
description of the policies and procedures that the State will use to
obtain the number of children by disability category, and Sec. 300.751,
which requires the reporting of data by disability category.
Some commenters recommended that Note 2 (which states that the
services and placement needed by each child with a disability must be
based upon the child's unique needs and may not be determined or
limited based upon a category of disability) be incorporated into the
regulations. Other commenters recommended deleting the phrase ``and may
not be determined or limited based upon a category of disability,'' so
as not to conflict with Sec. 300.346(a)(2)(iii) (consideration of
special factors relating to children who are blind or visually
impaired). Other commenters stated that Note 2 should be deleted
because it deals with services and placements, rather than child find.
A few commenters requested that the regulations clarify the child
find requirements for children birth through age 3, because the
requirements under Parts B and C are different, and it is not clear
which must be followed. One commenter recommended that Note 3 (which
describes the link between child find under Parts B and C) be
incorporated into the regulations because it promotes interagency
coordination. Other commenters stated that Note 3 is unnecessary and
should be deleted because the text of Sec. 300.125 sufficiently covers
the statutory requirement.
Some commenters expressed support for Note 4 (relating to highly
mobile children, such as the homeless and migrant children). A few
commenters requested more guidance related to a State's obligation to
migrant children. Other commenters stated that States are already doing
their best to find these children, but added that it is (1) virtually
impossible to meet fully an obligation to ensure that all of these
children are found, and (2) extremely difficult to obtain accurate data
on these populations.
Discussion: Section 300.125(c), which clarifies that the Act does
not require public agencies to label children by disability, is not
inconsistent with the data reporting requirements in
Secs. 300.125(b)(3) and 300.751. The statement in Note 2--that the
services and placement needed by each child with a disability may not
be determined or limited based upon a category of disability--is
crucial in implementing both the child find and FAPE requirements.
Thus, the substance of the note has been included in this discussion,
and has been incorporated in the text of the regulations at
Sec. 300.300(a)(3)(ii). Specifying that services and placement not be
determined or limited based on category of disability is not
incompatible with the special considerations related to children who
are blind and visually impaired.
It is clear, without the need for further clarification in the
regulations, that the child find and evaluation procedures under Part C
must be followed when the purpose is to locate, identify and evaluate
infants and toddlers with disabilities who may be eligible for early
intervention services under that Part, and that the child find and
evaluation procedures under Part B must be followed when the purpose is
to locate, identify and evaluate children with disabilities who may be
eligible for special education and related services under that part.
Note 3 provided needed clarification of long-standing statutory
requirements, under Parts B and C regarding the respective
responsibilities of the SEA and Part C lead agency for child find
activities. In States in which the SEA and Part C lead agency are
different, each agency remains responsible for ensuring that the child
find responsibilities under its program are met, even if the agencies,
through an interagency agreement, delegate to one agency the primary
role in child find for the birth through two population. When
different, the SEA and Part C lead agency are encouraged to cooperate
to avoid duplication and ensure comprehensive child find efforts for
the birth through two population. The substance of the note should be
incorporated into the text of the regulation.
Although it is difficult to locate, identify, and evaluate highly
mobile children with disabilities, it is important to stress that the
States' child find responsibilities under Sec. 300.125 apply equally to
such children and that the substance of Note 4 should be added to the
text of Sec. 300.125(a).
Changes: The substance of Notes 1, 3, and 4 has been added to the
text of the Sec. 300.125; the substance of Note 2 has been added to the
text of Sec. 300.300(a)(3)(ii); and the four notes have been deleted.
Procedures for Evaluation and Determination of Eligibility
(Sec. 300.126)
Comment: A few commenters requested that the regulation specify
best practices for evaluation and the determination of eligibility.
Discussion: The use of best practices in all educational programs
and activities in order to help ensure that all children, including
children with disabilities, are prepared to meet high standards is, of
course, strongly encouraged, and the Department funds many programs to
identify and disseminate best practices. Section 300.126, however,
addresses the eligibility requirements relating to evaluation and the
determination of eligibility that States must meet, rather than best
practices.
Changes: None.
Confidentiality of Personally Identifiable Information (Sec. 300.127)
Comment: None.
Discussion: In the NPRM, Sec. 300.127 included a note that
contained a reference to the Family Education Rights and Privacy Act
(FERPA) in 34 CFR Part 99. There is a clear relationship between the
confidentiality requirements in IDEA and those in FERPA. The
regulations in Secs. 300.560--300.577 are drawn directly from the FERPA
regulations.
Changes: Consistent with the decision to eliminate notes from the
final regulations, the note following this section has been removed.
Least Restrictive Environment (Sec. 300.130)
Comment: A few commenters requested that ``State-approved private
schools and facilities'' be added to the list of placement options
included in the continuum, as set forth in the note following
Sec. 300.130.
A few commenters were concerned that the proposed regulations did
not include the State eligibility requirement, set forth in the prior
regulations at Sec. 300.132(b), that each State include in its State
plan the number of children within each disability category who are
participating in regular education programs, and the number of children
with disabilities who are in separate classes or separate school
facilities or otherwise removed from the regular education environment.
A few commenters stated that the note and Sec. 300.551 should be
deleted; they assert that there is no requirement in the statute for a
continuum, and that the note and the regulation are inconsistent with
the statute's strengthened requirement that children with disabilities
be integrated.
Discussion: As described in Sec. 300.551(b)(1), the continuum
includes the placement option of ``special schools.'' The requested
revision regarding State-approved private schools and facilities is,
therefore, not necessary. State-approved private schools and facilities
are already covered by the continuum.
[[Page 12558]]
The requirement in the prior regulations at Sec. 300.132(b), that
each State include in its State plan the number of children within each
disability category who are participating in regular education
programs, and the number of children with disabilities who are in
separate classes or separate school facilities or otherwise removed
from the regular education environment, was based upon an express
provision in the prior statute at section 612(5)(B) that was removed
from the statute by the IDEA Amendments of 1997. Those amendments also
eliminated the requirement that each State submit a State plan, instead
requiring that each State demonstrate eligibility under Part B by
having specified policies and procedures on file with the Secretary.
The Department will, however, continue to collect data regarding
placement in the LRE under section 618 of the Act.
The statute, at section 607(b), prohibits the Secretary from
implementing or publishing regulations implementing IDEA that would
procedurally or substantively lessen the protections provided to
children with disabilities, as set forth in the Part B regulations as
in effect on July 20, 1983, including those relating to placement in
the least restrictive environment, except to the extent that the
revised regulation reflects the clear and unequivocal intent of the
Congress in legislation. The provisions of Sec. 300.551 in the NPRM
were included in the regulations as in effect on July 20, 1983.
Therefore, those provisions must, consistent with section 607(b) of the
Act, be retained in the regulations. In fact, the Senate and House
Committee Reports on Pub. L. 105-17 support the continuing importance
of the continuum provision:
The committee supports the longstanding policy of a continuum of
alternative placements designed to meet the unique needs of each
child with a disability. Placement options available include
instruction in regular classes, special classes, special schools,
home instruction, and instruction in hospitals and institutions. For
disabled children placed in regular classes, supplementary aids and
services and resource room services or itinerant instruction must
also be offered as needed. (S. Rep. No. 105-17, p. 11; H. R. Rep.
No. 105-95, p. 91 (1997))
The substance of the note is helpful in implementing the LRE
requirements, and should be included in the text of the regulations.
Changes: Consistent with the decision to delete notes from the
final regulations, the note following Sec. 300.130 in the NPRM has been
removed. The substance of the note has been incorporated into paragraph
(a) of this section.
Comment: A number of commenters expressed concerns about the
provisions of Sec. 300.130(b), regarding the steps that a State must
take if it distributes State funds on the basis of the type of setting
in which a child is served. Some commenters were concerned that this
provision not be implemented in a way that would negatively impact
State funding formulas for State schools for the deaf. Other commenters
requested that the regulations provide clear guidance as to what a
State must do to determine whether its funding mechanism is resulting
in placements that violate the least restrictive environment
requirements of the Act.
A few commenters asked that the regulations make clear that
individual needs, rather than a State's finding mechanism must drive
placement decisions, but that a State is not required to change the way
in which it distributes State funds to public agencies unless the
funding mechanism results in placement decisions that violate Part B's
LRE requirements. Other commenters requested that the regulations be
revised to require that a State's assurance under Sec. 300.130(b)(2)
must specify the steps the State will take by a date certain (no later
than the end of the following fiscal year) to revise its funding
mechanism.
Discussion: The provisions of Sec. 300.130(b) are unchanged from
section 612(a)(5)(B) of the Act. A State is not required to revise a
funding mechanism by which the State distributes State funds on the
basis of the type of setting in which a child is served, unless it is
determined that the State does not have policies and procedures to
ensure that the funding mechanism does not result in placements that
violate the LRE requirements of Secs. 300.550-300.556. The Senate and
House Committee Reports on Pub. L. 105-17 emphasize the importance of
section 615(a)(5)(B), stating that:
The bill amends the provisions on least restrictive environment
* * * to ensure that the state's funding formula does not result in
placements that violate the requirement.
The committee supports the long standing policy that to the
maximum extent appropriate, children with disabilities are educated
with children who are nondisabled and that special separate
schooling, or other removal of children with disabilities from the
regular educational environment occurs only when the nature or
severity of the disability is such that education in regular classes
with the use of supplementary aids and services cannot be achieved
satisfactorily. (S. Rep. No. 105-17, p. 11; H. R. Rep. No. 105-95,
p. 91 (1997)) Further clarification in the regulation is not needed.
Changes: None.
Transition of Children From Part C to Preschool Programs (Sec. 300.132)
Comment: A few commenters expressed concern regarding the cost of
home visits, especially in large geographic areas, that would be needed
to implement the transition requirements of Sec. 300.132.
Discussion: The provisions of Sec. 300.132 are drawn from the
statutory requirements at section 612(a)(9), and do not set forth any
additional requirements. While Sec. 300.132(c) requires that each LEA
participate in transition planning conferences arranged by the
designated lead agency under section 637(a)(8) (which requires the lead
agency to convene such a conference), Sec. 300.132 does not require any
home visits. Therefore, no revision is necessary.
Changes: None.
Comment: A few commenters requested that the regulation be revised
to make clear that the pendency provisions of Sec. 300.514 apply to
children transitioning from early intervention services under Part C to
preschool special education and related services under Part B.
Discussion: The pendency provision at Sec. 300.514(a) does not
apply when a child is transitioning from a program developed under Part
C to provide appropriate early intervention services into a program
developed under Part B to provide FAPE. Under Sec. 300.514(b), if the
complaint requesting due process involves the child's initial admission
to public school, the public agency responsible for providing FAPE to
the child must place that child, with the consent of the parent, into a
public preschool program if the public agency offers preschool services
directly or through contract or other arrangement to nondisabled
preschool-aged children until the completion of authorized review
proceedings.
Changes: None.
Comment: One commenter expressed concern that Sec. 300.132(b)
suggests that a program of special education and related services be in
place for each child with a disability on his or her third birthday,
even if the birthday occurs during the summer and the child does not
need extended school year services.
Discussion: Section 612(a)(9) of the Act requires that, by the
third birthday of a child with a disability participating in early
intervention programs assisted under Part C who will participate in
preschool programs assisted under Part B, an IEP or, if consistent with
Sec. 300.342(c) and section 636(d) of the
[[Page 12559]]
Act, an IFSP, has been developed and must be implemented for the child.
This means that if a child with a disability is determined eligible to
receive Part B services, the public agency must convene a meeting and
develop an IEP by the child's third birthday, and must, in developing
the IEP, determine when services will be initiated. Children with
disabilities who have their third birthday during the summer months are
not automatically entitled to receive special education and related
services during the summer, and the public agency must provide such
services during the summer only if the IEP team determines that the
child needs extended school year services during the summer in order to
receive FAPE.
Changes: The regulation has been revised to clarify that decisions
about summer services for children who turn three in the summer are
made by the IEP team.
Comment: A few commenters requested that the regulation be revised
to clarify that representation of an LEA in the transition planning
process would most appropriately include all members of the IEP team,
in order to further ``smooth'' the transition process and ensure
appropriate attention to the child's needs.
Discussion: Section 612(a)(9) of the Act leaves to each LEA the
responsibility to determine who will most appropriately represent the
agency in transition planning conferences. The requested revision goes
beyond the requirements of the Act.
Changes: None.
Comment: A few commenters requested that a definition of the term
``effective'' be included in the regulations.
Discussion: It is not necessary to provide a definition of the term
``effective,'' and doing so would restrict the flexibility needed to
implement the Act for a very heterogeneous group of children.
Changes: None.
Comment: A few commenters requested that the regulations be revised
to require that: (1) the transition planning conference be incorporated
into the required timelines under Part B of the Act for determining
eligibility and developing an IEP; and (2) LEAs acknowledge and
consider existing documentation related to eligibility and service
planning prior to conducting an individual evaluation of a child
referred from the Part C system.
Discussion: The Part C regulations require, at Sec. 303.148(b)(2),
that the lead agency convene, with family approval, a transition
planning conference at least 90 days, and at the discretion of the
parties, up to 6 months before the third birthday of a toddler
receiving early intervention services. The Part B regulations require
that an IEP be developed and implemented for children with disabilities
by their third birthday. It is inappropriate to specify further
timelines in Sec. 300.132. Section 300.533 permits an LEA, if
appropriate, to review existing data regarding a child with a
disability (including a child who has been referred by the lead agency)
as part of an initial evaluation.
Changes: None.
Comment: A few commenters requested that the regulation be revised
to emphasize the responsibility of the lead agency to ensure that the
LEA receive advance notice of any transition planning conference at
which the participation of the LEA is required.
Discussion: The Part C regulations require at Sec. 303.148(b) that
the lead agency notify the local educational agency in which a child
with a disability resides when the child is approaching the age of
three, and convene, with family approval, a transition planning
conference which includes the lead agency, the family and the LEA at
least 90 days, and at the discretion of the parties, up to 6 months
before the child's third birthday. Implicit in these requirements is
the requirement that the lead agency inform the LEA early enough so
that the LEA can arrange to participate in the conference. Additional
clarification in the Part B regulations is not necessary.
Changes: None.
Private Schools (Sec. 300.133)
Comment: A few commenters requested that the regulations be revised
to require each State to include, as part of the policies and
procedures that it must have on file with the Secretary in order to
establish eligibility under Part B of the Act, the policies and
procedures that the State has established to comply with the provisions
of Sec. 300.454(b), which requires that each LEA consult with
representatives of private school children with disabilities in making
determinations regarding the provision of special education and related
services to children with disabilities who have been placed by their
parents in private schools.
Discussion: Section 300.133 specifically requires that each State
``have on file with the Secretary policies and procedures that ensure
that the requirements of Secs. 300.400-300.403 and Secs. 300.450-
300.462 are met.'' Thus, the regulation already requires that the
procedures required by Sec. 300.454(b) be included in the policies and
procedures that each State must have on file to establish eligibility.
Changes: None.
Comprehensive System of Personnel Development (Sec. 300.135)
Comment: A few commenters requested that the regulation be revised
to require that each State, in developing its comprehensive system of
personnel development, consider the need for bilingual special
education and assistive technology instructors. Other commenters
requested that the regulations be revised to require that special
education, regular education, and related services personnel be trained
regarding the use of home instruction and the circumstances under which
such instruction is appropriate. Other commenters requested that the
regulation be revised to require that each State have on file with the
Secretary policies and procedures on the equitable participation of
private school personnel in staff development, inservice, etc.
Discussion: The CSPD provisions in Secs. 300.380-300.382 require
each State to develop and implement a CSPD to ensure ``an adequate
supply of qualified special education, regular education, and related
services personnel'' (Sec. 300.380(a)(2)), and that ``all personnel who
work with children with disabilities * * * have the skills and
knowledge necessary to meet the needs of children with disabilities''
(Sec. 300.382). This would include, for example, consideration of the
needs of personnel serving limited English proficient students and
students who need assistive technology services and devices. The Act
and regulations leave to each State the flexibility to determine the
specific personnel development needs in the State.
Matters related to the participation of private school staff in
inservice training and other personnel development activities are
decisions left to the discretion of each State and LEA, and, therefore,
should not be addressed under this part.
Changes: None.
Comment: None.
Discussion: The Senate and House committee reports on Pub. L. 105-
17, in reference to the CSPD requirements of this section state that:
Section 612, as [in] current law, requires that a State have in
effect a Comprehensive System of Personnel Development (CSPD) that
is designed to ensure an adequate supply of qualified personnel,
including the establishment of procedures for acquiring and
disseminating significant knowledge derived from educational
research and for adopting, where appropriate, promising
[[Page 12560]]
practices, materials, and technology. (S. Rep. No. 105-17, p. ; H.
R. Rep. No. 105-95, p. 93 (1997))
The States will be able to use the information provided to meet the
requirement in Sec. 300.135(a)(2) as a part of their State Improvement
Plan under section 653 of the Act, if they choose to do so.
Changes: Consistent with the decision to not include notes in the
final regulations, the note following this section has been deleted.
Personnel Standards (Sec. 300.136)
Comment: Commenters made a number of suggestions regarding general
modifications to this section. Some commenters expressed concern that
in no case should children with disabilities receive services from
individuals who do not meet the highest requirements applicable to
their professions. Commenters recommended clarification requiring LEAs
to ensure that all personnel are adequately trained to meet all the
requirements of the IDEA, with emphasis on any requirement on which the
LEA has been found by the SEA to be out of compliance, such as the
failure to provide necessary assistive technology devices and services.
Some commenters recommended that the definition of ``appropriate
professional requirements in the State'' in Sec. 300.136(a)(1) be
amended to include an explicit reference to ``professionally-
recognized'' entry level requirements. Other commenters requested
additional clarification regarding the term ``highest requirements in
the State.'' Those commenters who interpreted the term as imposing the
maximum standard recommended that the definition be amended to specify
that every provider of special education and related services must have
a doctorate. Some commenters recommended clarification that highest
requirements in the State are the minimum requirements established by a
State which must be met by personnel providing special education and
related services to children with disabilities under Part B.
Numerous comments were received regarding Note 1 to this section of
the NPRM, and regarding Note 3 as it relates to paragraphs (b) and (c)
of this section. A number of commenters indicated that they had found
Note 1 to be extremely useful in understanding the scope of this
section; however, other commenters recommended that Note 1 either be
deleted entirely, or that the substance of the note be incorporated
into the text of Sec. 300.136. While many commenters recommended that
Note 3 either be retained as a note or incorporated into the
regulations, other commenters recommended that Note 3 be deleted
because it would ``nullify'' the requirements of this section.
Discussion: The substance of Sec. 300.136 of the NPRM has been
retained in these final regulations, but the notes have been removed.
Section 300.136 incorporates the provisions on personnel standards
contained in Sec. 300.153 of the current regulations, with the addition
of the new statutory amendments in section 612(a)(15)(B)(iii) and (C)
of the Act.
The IDEA Amendments of 1997 do not alter States' responsibilities
to (1) establish policies and procedures relating to the establishment
and maintenance of standards for ensuring that personnel necessary to
carry out the purposes of this part are appropriately and adequately
prepared and trained, (2) establish their own minimum standards for
entry-level employment of personnel in a specific profession or
discipline providing special education and related services to children
with disabilities under these regulations based on the highest
requirements in the State across all State agencies serving children
and youth with disabilities, and (3) if State standards are not based
on the highest requirements in the State applicable to a specific
profession or discipline, take specific steps to upgrade all personnel
in that profession to appropriate State qualification standards by a
specified date in the future.
Contrary to the suggestion made by commenters, the Act's personnel
standards provisions are not intended to be a mechanism for addressing
problems that result from the denial of special educational services to
children with disabilities under Part B. If an SEA finds that any of
its public agencies are out of compliance with the requirements of Part
B, the SEA, in accordance with the general supervision requirements of
section 612(a)(11) of the Act and Sec. 300.600 of these regulations,
must take whatever steps it determines are necessary to ensure the
provision of FAPE to children with disabilities who are eligible for
services under Part B. In addition, through the comprehensive system of
personnel development (CSPD), an SEA must conduct a needs assessment
and identify areas of personnel shortages, as well as describe the
strategies it will use to address its identified needs for preparation
and training of additional personnel necessary to carry out the
purposes of Part B.
There is no need to clarify the regulatory definitions of
``appropriate professional requirements in the State'' in
Sec. 300.136(a)(1) or ``highest requirements in the State applicable to
a specific profession or discipline'' in Sec. 300.136(a)(2). Section
300.136 incorporates verbatim the definitions of these terms contained
in the current regulations implementing the Act's personnel standards
provisions, which were added to Part B by the Education of the
Handicapped Act Amendments of 1986, Pub. L. 99-457.
These definitions are consistent with the congressional intent that
all personnel in a specific profession or discipline meet the same
standards across all State agencies; nevertheless, they still afford
States flexibility in determining the steps that must be taken to
upgrade all personnel in a specific profession or discipline to meet
applicable State qualification standards if the SEA's standard is not
based on the highest requirements in the State applicable to the
profession. The definition of ``highest requirements in the State'' is
based on the highest entry-level academic degree required for
employment in a specific profession or discipline across all State
agencies.
As explained in Note 1 to this section of the NPRM, these
regulations require a State to use its own existing requirements to
determine the standards appropriate to personnel who provide special
education and related services under Part B of the Act, and nothing in
Part B requires that all providers of special education and related
services attain a doctorate or any other specified academic degree,
unless the State standard requires this academic degree for entry-level
employment in that profession or discipline.
While States may consider professionally-recognized standards in
deciding what are ``appropriate professional requirements in the
State,'' there is nothing in the statute that requires States to do so.
Rather, these matters appropriately are left to States. Therefore, to
clarify the extent of flexibility afforded to States in meeting the
Act's personnel standards requirements, a new paragraph (b)(3) should
be added to these final regulations, and provides, in accordance with
Note 1 to this section, that nothing in these regulations requires
States to set any specified training standard, such as a master's
degree, for entry-level employment of personnel who provide special
education and related services under Part B of the Act.
States also have the flexibility to determine the specific
occupational categories required to provide special education and
related services and to revise or expand those categories as
[[Page 12561]]
needed. Therefore, the clarification regarding this issue contained in
the note to the current regulation should be incorporated as part of
paragraph (a)(3) in the definition of ``specific profession or
discipline.''
Despite commenters' concerns that Note 3 would ``nullify'' the
requirements of this section, experience in administering the Act's
personnel standards provisions has demonstrated that there is a need to
afford States that have only one entry-level academic degree for
employment of personnel in a particular profession or discipline the
ability to modify that standard if the State determines that
modification of the standard is necessary to ensure the provision of
FAPE to all children with disabilities in the State. Therefore, the
substance of Note 3 should be incorporated into this section as
paragraph (b)(4).
Changes: Note 1 has been removed as a note and incorporated, as
appropriate, both into the above discussion and into Sec. 300.136. Note
2 has been removed as a note, and, as discussed later in this
attachment, the substantive portion of Note 2 has been incorporated
into Sec. 300.136(g) of these final regulations. Note 3 has been
removed as a note and has been incorporated into Sec. 300.136, as
explained below.
Paragraph (a)(3) has been amended by adding a new paragraph (iv),
which states that the definition is not limited to traditional
occupational categories.
New paragraphs (b)(3) and (b)(4) have been added, which provide
that (1) nothing in this part requires a State to establish a specified
training standard (e.g., a masters degree) for personnel who provide
special education and related services under Part B of the Act, and (2)
a State with only one entry-level academic degree for employment of
personnel in a specific profession or discipline, may modify that
standard without violating the other requirements of this section.
Comment: Numerous comments were received regarding the role of
paraprofessionals and assistants under Part B. Some commenters strongly
cautioned against additional regulation since determinations regarding
the definitions of paraprofessionals and assistants and the scope of
their responsibilities will vary widely from State to State and across
disciplines. These commenters also pointed out that Congress chose to
provide only minimal guidance in this area. Other commenters made a
number of specific suggestions for regulatory changes. Some commenters
recommended that the language in paragraph (f) be changed from ``may''
to ``shall'' to make it mandatory for States to use paraprofessionals
and assistants. Other commenters, who did not support the use of
paraprofessionals and assistants to assist in the provision of services
under Part B, recommended regulations prohibiting their use.
Many commenters recommended that the regulations clarify that
paraprofessionals and assistants who assist in the provision of speech
pathology and audiology services under these regulations must be
supervised by an individual who meets the highest entry-level academic
degree requirement applicable to that profession. Similarly, commenters
requested clarification that all paraprofessionals and assistants
assisting in the provision of special education and related services
under Part B must meet their profession's or discipline's highest
entry-level academic degree requirement.
Some commenters recommended that the terms ``paraprofessionals''
and ``assistants'' be defined separately, and that the roles and
responsibilities and training be set out in the regulations so that all
States could have the same definitions, since differences in
definitions and responsibilities among States could interfere with the
rights of children with disabilities to receive appropriate services
under Part B. These commenters also provided suggested definitions to
address these concerns.
Commenters also suggested specific language that (1) only those
paraprofessionals and assistants who are appropriately trained and
supervised are allowed to assist in the provision of services under
Part B in accordance with State law, regulations, written policy, and
accepted standards of professional practice, and only assist in the
provision of services with the consent of their supervisors; (2) para-
professional and assistant services must be delivered under the direct,
ongoing and regular supervision of a qualified professional with
competency in the technique(s) employed by the paraprofessional or
assistant; (3) paraprofessionals and assistants may not develop,
modify, or provide services independent of or without such supervision,
and may report findings but not make diagnostic or treatment
recommendations to special education decision making teams; (4) the
roles, supervision and training of paraprofessionals and assistants
must be consistent with the professional standards of the different
areas in which they work; (5) paraprofessionals and assistants, at a
minimum, must receive organized in-service training under the direct,
ongoing and regular supervision of a qualified professional with
competency in the technique being employed by the paraprofessional or
assistant; and (6) the State must have information on file with the
Secretary that demonstrates that the State has laws, regulations, or
written policies related to the training, use, and supervision of
paraprofessionals and assistants.
Some commenters recommended that Sec. 300.136 be amended to expand
services that paraprofessionals and assistants could assist in
providing under Part B. Other commenters maintained that the use of
paraprofessionals and assistants to assist in the provision of some
special education and related services should be prohibited. For
example, some commenters recommended that the regulations be clarified
to specify that paraprofessionals may not assist in the provision of
mental health services, while other commenters recommended
clarification indicating that paraprofessionals and assistants could
assist in the provision of psychological services, including evaluation
and treatment services, only under the supervision of a school
psychologist.
Other commenters requested clarification regarding whether
paraprofessionals could ever be used in lieu of special education
teachers. A few commenters stated that in no case should medical
procedures be provided by untrained individuals, and requested
clarification to this effect.
A number of commenters recommended that parents must be notified
whenever paraprofessionals or assistants are assigned to assist in the
provision of services. Other commenters recommended that this type of
notice is necessary whenever students with disabilities receive
services from an individual who does not meet the highest requirement
applicable to their professions, and that parents should have the right
to challenge this issue through the IEP process.
Discussion: Section 300.136(f) tracks the statutory requirement in
section 612(a)(15)(B)(iii), which permits, but does not require, the
use of paraprofessionals and assistants who are appropriately trained
and supervised, in accordance with State law, regulations, or written
policy, to assist in the provision of special education and related
services under Part B. Since the statute affords a State the option of
using paraprofessionals and assistants to assist in the provision of
special education and related services to children with disabilities,
it would be inappropriate to regulate in a manner
[[Page 12562]]
that would either require or prohibit the use of paraprofessionals and
assistants under Part B.
The statute makes clear that the use of paraprofessionals and
assistants who are appropriately trained and supervised must be
contingent on State law, regulation, or written policy, giving States
the option of determining whether paraprofessionals and assistants can
be used to assist in the provision of special education and related
services under Part B, and, if so, to what extent their use would be
permissible. Therefore, there is no need to provide definitions of the
terms ``paraprofessionals'' and ``assistants'' in these regulations,
since States have the flexibility to determine the scope of their
responsibilities.
Section 300.382 of these regulations requires States to include in
their CSPD a plan for the inservice and preservice preparation of
professionals and paraprofessionals. Appropriate training and
supervision are prerequisites for use of paraprofessionals and
assistants under Part B, and determinations of what constitutes
``appropriate'' training and supervision are matters for each State to
decide, based on factors relevant to each profession or discipline.
Because these regulations do not specify any particular standard for
persons providing special education and related services, but instead
leave such determinations to States, there also is no need to specify
any particular standards for paraprofessionals and assistants or their
supervisors in these regulations.
No regulatory changes are necessary regarding information that a
State that uses paraprofessionals and assistants to assist in the
provision of special education and related services must have on file
with the Secretary, since this information already would be part of the
personnel standards portion of the State's Part B State plan. If a
State chose to adopt a policy regarding the use of paraprofessionals
and assistants, the State would be required to submit its policy to the
Department only if that policy constitutes a change from the
information contained in the State's prior year Part B State
submission, under section 612(c) of the Act.
In addition, there is no need to specify whether paraprofessionals
and assistants can assist in the provision of psychological services,
including mental health services, under these regulations, or to what
extent they can participate in the testing process, since State laws,
regulations, and written policies, not Part B requirements, would
govern these determinations. With respect to ``medical services,''
however, it should be noted that only those medical services that are
for diagnostic and evaluation purposes are eligible related services
under Part B. Another category of ``related services,'' ``school health
services,'' may be provided by a school nurse or other qualified person
in accordance with applicable State qualification standards. It is
critical that States that use paraprofessionals and assistants do so in
a manner that is consistent with the rights of children with
disabilities to FAPE under Part B. Since the Act provides that
paraprofessionals and assistants may assist in the provision of special
education and related services, their use as teachers would be
inconsistent with a State's duty to ensure that personnel necessary to
carry out the purposes of Part B are appropriately and adequately
prepared and trained.
Part B does not require that public agencies give parents
information on how paraprofessionals and assistants are assisting in
the provision of services to their children. However, public agencies
are encouraged to inform parents about whether paraprofessionals are
assisting in the provision of special education and related services to
their children, including the extent that these individuals are being
supervised by appropriately trained and qualified staff.
No clarification has been provided regarding which services are
being provided by individuals who do not meet the ``highest entry-level
requirements'' applicable to their profession. The Act's personnel
standards provisions and these regulations at Sec. 300.136(c) make it
permissible for States to use individuals who do not meet the highest
entry-level academic degree requirement applicable to their profession,
provided that the State is taking steps to upgrade all personnel in
that profession to appropriate professional requirements in the State
by a specified date in the future. IDEA allows State the discretion to
determine the ``specified date'' and does not prevent a State from
making changes to that date. Thus a State is not prohibited from
extending its timeline for retraining or hiring of personnel to meet
appropriate professional requirements in the State.
Changes: None.
Comment: A number of comments were received regarding
Sec. 300.136(g). These commenters requested definitions of ``most
qualified individuals available,'' ``good faith efforts,'' ``geographic
area,'' ``satisfactory progress,'' and ``shortages of personnel,'' or
the clarification of these terms.
Numerous commenters objected to allowing States that have upgraded
all personnel in a specific profession or discipline to appropriate
professional requirements in the State to use personnel who did not
meet those standards if they were experiencing personnel shortages.
These commenters regarded this provision as permitting these States to
waive applicable personnel standards. Some of these commenters
advocated not allowing States to have a policy that would extend the
three-year time frame for individual applicants who are hired under the
``waiver provision'' to become fully qualified. Other commenters
requested clarification to ensure that paragraph (g) not be applied on
a system-wide basis but instead be applied to individuals on a case-by-
case basis.
Other commenters believed that paragraph (g) and Note 2 must be
deleted because under no circumstances should States that have achieved
the goal of upgrading all personnel in the State to meet appropriate
professional requirements have the option of employing personnel, even
temporarily, who do not meet applicable State personnel standards.
Commenters requested specific clarification that a State may
exercise the option under paragraph (g) of this section even though the
State has reached its established date, under paragraph (c) of this
section, for training or hiring all personnel in a specific profession
or discipline to meet appropriate professional requirements in the
State.
While some commenters recommended that Note 2 either be retained or
incorporated into the regulations, many commenters believed that Note 2
should be deleted because it encourages protracted delays in attaining
the highest requirement in the State applicable to specific professions
or disciplines.
Discussion: Section 300.136(g) of the NPRM incorporates essentially
verbatim the new statutory provision at section 612(a)(15)(C) of the
Act. Section 300.136(g) affords States the necessary flexibility to
serve children with disabilities if instructional needs exceed
available personnel who meet appropriate State personnel qualification
standards, even though the State has satisfied the requirements of
paragraph (c) of this section for personnel in a specific profession or
discipline. However, a State's ability to permit its LEAs to utilize
this option is conditioned on a number of factors.
Under Sec. 300.136(g), States are given the option of adopting a
policy of allowing LEAs in the State, that have made a good faith
effort to recruit and hire appropriately and adequately
[[Page 12563]]
trained personnel, in a geographic area of the State where there is a
shortage of personnel that meet applicable State qualification
standards, of using the most qualified personnel available who are
making satisfactory progress toward completion of applicable course
work necessary to meet applicable State qualification standards within
a three-year period.
Therefore, in order for Sec. 300.136(g) to be invoked, the State
must have made good faith efforts to recruit and hire appropriately and
adequately trained personnel. However, before other personnel can be
utilized, there must be a shortage of qualified personnel as determined
by the State, in a geographic area as defined by the State, to meet
instructional needs. The personnel who are utilized under these
circumstances also must be making satisfactory progress toward
completion of applicable course work within a three-year period.
While a State's decision to invoke the policy under Sec. 300.136(g)
depends on a variety of State-specific factors, the statute does not
restrict the State's ability to invoke this policy if the conditions in
Sec. 300.136(g) are present. However, it is expected that the
circumstances in which the policy under paragraph (g) of this section
will be invoked will prove to be the exception rather than the rule.
The information provided by commenters does not provide a
sufficient basis for restricting to only one three-year period a
State's ability to invoke Sec. 300.136(g). Therefore, to avoid
confusion, and consistent with the determination explained in Note 2 to
this section in the NPRM, the portion of Note 2 that explains that this
section can be invoked even if a State has reached its established date
for a specific profession or discipline under paragraph (c) of this
section should be incorporated into the regulations. Also, the
clarification from Note 2 that a State that continues to experience
shortages of personnel meeting appropriate professional requirements in
the State must address those shortages in its comprehensive system of
personnel development should be incorporated into the regulations.
Changes: Paragraph (g) of this section of the NPRM has been
designated as paragraph (g)(1) of these regulations. New paragraphs
(g)(2) and (g)(3) have been added, and provide that (1) a State that
has met its established goal for a specific profession or discipline
under paragraph (c) of this section is not prohibited from invoking
paragraph (g)(1); and (2) each State must have a mechanism for serving
children with disabilities if instructional needs exceed available
personnel, and if a State continues to experience shortages of
qualified personnel, it must address those shortages in its
comprehensive system of personnel development.
Comment: Some commenters requested that clarification be provided
to ensure that personnel with disabilities were hired. One comment
requested that a new paragraph (h) be added to the regulations to
specify that States not utilize standards that ``may screen out or tend
to screen out individuals with disabilities.'' Some commenters
requested clarification regarding the applicability of the personnel
standards provisions to private school staff serving children with
disabilities parentally-placed in private schools, and recommended that
this be a part of the consultation process.
Other commenters recommended that these regulations require that
students who are deaf or hearing impaired receive appropriate
instruction in their native language, including sign language, and that
sign language interpreters meet particular qualification standards.
Discussion: For the most part, the issues raised by these
commenters have been addressed elsewhere in these regulations or
through other statutory requirements; therefore, no further
clarification has been provided in this section. If State standards
screen out individuals with disabilities from providing special
education and related services under these regulations, they could
violate Federal civil rights laws that prohibit discrimination on the
basis of disability.
In addition, as required by Section 427 of the General Education
Provisions Act (GEPA), each State must have on file with its Part B
application to the Secretary a description of the steps the State is
taking to ensure equitable access to, and participation in programs and
activities assisted with Part B funds and must have identified the
barriers to equitable participation and developed strategies to address
those barrier.
The Part B CSPD provisions require each State to develop a plan for
the in-service and preservice preparation of professionals and
paraprofessionals who work with children with disabilities under these
regulations. One of the strategies that must be included in this plan
in accordance with Sec. 300.382(h) is how a State will [r]ecruit,
prepare, and retain qualified personnel, including personnel with
disabilities and personnel from groups that are under-represented in
the fields of regular education, special education, and related
services.''
Therefore, in meeting their obligations under Part B and GEPA,
States are required to take steps to ensure equitable access of
individuals with disabilities to their programs and must take steps to
remove barriers which prevent such access. It is expected that States
that determine through their CSPD that they have employed an
insufficient number of individuals with disabilities will identify and
remove barriers to the employment of individuals with disabilities in
the State. This will ensure that qualified individuals with
disabilities are recruited and hired to provide special education and
related services to children with disabilities under these regulations.
While sign language interpreters must be able to provide
appropriate instruction and services to children who are deaf or
hearing impaired, no clarification is necessary, since States must
establish and maintain standards for all personnel who are providers of
special education and related services, including sign language
interpreters. See discussion of Sec. 300.23 (qualified personnel) in
Subpart A of this Attachment. In addition, section 614(d)(3)(B)(iv) of
the Act requires the IEP team to consider the language and
communication needs of children who are deaf or hard of hearing. To
ensure that this occurs, Sec. 300.136 would require each State to
ensure that the necessary personnel are appropriately and adequately
prepared and trained.
The personnel standards provisions of these regulations are
applicable to persons providing services to children with disabilities
who are publicly placed in private schools and to persons providing
special education and related services to parentally-placed private
school children the LEA, after consultation with representatives of
private schools, has chosen to serve.
Changes: None.
Performance Goals and Indicators (Sec. 300.137)
Comment: Some commenters requested that the regulations be revised
to clarify the responsibility of a State to establish performance goals
and indicators for children with disabilities if the State has not
established performance goals and indicators for general education
students. They also requested clarification of States' responsibility
to report to the Secretary and the public regarding progress toward
achieving the performance goals.
Discussion: Further clarification is not required. As set forth in
Sec. 300.137(a),
[[Page 12564]]
each State is required to demonstrate that it has established
performance goals that are ``consistent, to the maximum extent
appropriate, with other goals standards for all children established by
the State.'' However, regardless of whether a State has established
goals for all children, it must establish goals for the performance of
children with disabilities, and must establish indicators that the
State will use to assess progress toward achieving those goals that, at
a minimum, address the performance of children with disabilities on
assessments, drop-out rates, and graduation rates (Sec. 300.137(a) and
(b)).
The regulation also specifies that each State report every two
years to the Secretary and the public on the progress of the State, and
of children with disabilities in the State, toward meeting the goals
established under Sec. 300.137(a). The requested revisions are not
necessary.
Changes: None.
Comment: Some commenters requested that the regulation be revised
to require that, prior to each State's reporting to the Secretary and
the public every two years, as required by Sec. 300.137(c), the State
conduct widely publicized forums at which students, parents, and
concerned citizens can comment on a draft report, and that the State
include the comments it receives as part of its final report to the
Secretary and the public. Other commenters requested that the
regulation be revised to require that each State establish its goals
for the performance of children with disabilities with the cooperation
and input of parents and children with disabilities, teachers, and
members of the community.
Discussion: The Act requires that each State report every two years
to the Secretary and the public on the progress of the State and of
children with disabilities in the State toward meeting the State's
performance goals, but neither requires nor prohibits States from
implementing procedures to allow the public the opportunity to comment
on draft reports. It is appropriate to leave the use of such procedures
to the discretion of the States, and no additional procedures regarding
the reports are needed.
In demonstrating eligibility under Part B, States are required to
submit information to the Department demonstrating that they meet the
requirements of this section of the regulations. Before submitting that
information to the Department, the States' proposal will be subjected
to public comment and involvement consistent with the public
participation provisions of Secs. 300.280-300.284. These provisions
include public notice and public hearings, and an opportunity for the
public to participate before that information is submitted to the
Department. The process applies to the initial submission as well as
any subsequent substantive provisions.
Changes: None.
Participation in assessments (Sec. 300.138)
Comment: A number of commenters raised concerns regarding the note
following Sec. 300.138, which states that it is assumed that only a
small percentage of children with disabilities will need alternative
assessments; some commenters requested that the language of the note be
incorporated into the regulation itself, while others requested that
the note be deleted, and further commenters requested clarification
regarding the meaning of 'small percentage' in the note and who would
enforce that requirement.
Other commenters asked that the regulation clarify that the IEP
team must make the determination that a child will participate in an
alternate assessment. Others asked that the regulation be revised to
include criteria or guidelines in the regulation for determining if an
alternate assessment can be used for a child, while others requested
that the regulations require that each State provide such guidance for
IEP teams. Some commenters said that the use of the term ``alternate
assessment'' in the regulation and the use of the term ``alternative
assessment'' in the note caused confusion, and asked that ``alternate
assessment'' be defined. Other commenters stated that costs of
alternate assessments would be prohibitive. Some commenters expressed
concerns regarding the use of accommodations. Some commenters were
concerned that the use of accommodations might affect test validity and
standardization, while others requested further guidance as to who has
the authority to determine whether a particular accommodation is
necessary and how that determination must be made. Some of the
commenters requested that the regulation specify that accommodations
should address students' specific needs and afford maximum
independence, while others said that a student's needs should be
accommodated by tools or assistive technology that he or she uses on a
daily basis or with which he or she is most familiar.
Other commenters asked that a note be added to reaffirm the State's
responsibility to ensure that children are provided the accommodations
they need so that they can participate in State and district-wide
assessments. Some commenters requested clarification as to whether
students should participate in assessments according to their
performance level or the grade they are in based upon their
chronological age. Some commenters requested clarification as to
whether participation in alternate assessments was not required until
July 1, 2000. A few commenters requested a note to state that
assessment practices appropriate for children in grades 4 and older
might not be appropriate for younger children.
Discussion: State and district-wide assessment programs are closely
aligned with State and local accountability-based reform and
restructuring initiatives. Therefore, it is important to allow the
flexibility needed for State and local school districts to
appropriately include disabled children in State and district-wide
assessment programs. Only minimum requirements are included in these
regulations for how public agencies provide for the participation of
children with disabilities in State and district-wide assessments. The
Department will be working with State and local education personnel,
parents, experts in the field of assessment and others interested in
the area of assessment to identify best practice that could serve as
the basis for a technical assistance document. As provided in
Sec. 300.347(a)(5), the IEP team must determine whether a child with a
disability will participate in a particular State or district-wide
assessment of student achievement, and if the child will not, the IEP
must include a statement of why that assessment is not appropriate for
the child and how the child will be assessed. If IEP teams properly
make individualized decisions about the participation of each child
with a disability in general State or district-wide assessments,
including the use of appropriate accommodations, and modifications in
administration (including individual modifications, as appropriate), it
should be necessary to use alternate assessments for a relatively small
percentage of children with disabilities. Consistent with the decision
to not include notes in these final regulations, the note is deleted.
Section 300.138 requires the State or LEAs, as appropriate, to
develop alternate assessments and guidelines for the participation of
children with disabilities in alternate assessments for those children
who cannot participate in State and district-wide assessment programs.
Alternate assessments need to be aligned with the general curriculum
standards set for all students and should
[[Page 12565]]
not be assumed appropriate only for those student with significant
cognitive impairments.
Section 300.347(a)(5) requires that the IEP team have the
responsibility and the authority to determine what, if any, individual
modifications in the administration of State or district-wide
assessments are needed in order for a particular child with a
disability to participate in the assessment. Section 300.138(a) should
be revised to reflect the requirement that modifications in
administration of State or district-wide assessments must be provided
if necessary to ensure the participation of children with disabilities
in those assessments. As part of each State's general supervision
responsibility under Sec. 300.600, it must ensure the appropriate use
of modifications in the administration of State and district-wide
assessments.
Test validity is an important variable and the Department has
invested discretionary funds in providing assistance to States
regarding appropriate modifications. The determination of what level of
an assessment is appropriate for a particular child is to be made by
the IEP team. It should be noted, however, that out of level testing
will be considered a modified administration of a test rather than an
alternative test and as such should be reported as performance at the
grade level at which the child is placed unless such reporting would be
statistically inappropriate.
Although SEAs and LEAs are not required by Sec. 300.138 to conduct
alternate assessments until July 1, 2000, each SEA and LEA is required
to ensure, beginning July 1, 1998, that, if a child will not
participate in the general assessment, his or her IEP documents how the
child will be assessed.
Changes: Paragraph (a) has been revised to acknowledge that, for
some children with disabilities, participation in State and district-
wide assessments may require appropriate modifications in
administration of the assessments as well as appropriate
accommodations. The note has been removed.
Reports Relating to Assessments (Sec. 300.139)
Comment: Several commenters noted that the requirement in
Sec. 300.139(b)(1) that each State's reports to the public include
``aggregated data that include the performance of children with
disabilities together with all other children'' exceeds the
requirements of the Act at section 612(a)(17)(B), and should be deleted
from the regulations. Other commenters requested clarification as to
whether States are required to aggregate data regarding children who
take alternate assessments with results for students who take the
general assessment. Other commenters requested that the regulations
require or suggest that States disaggregate assessment results by
disability category in reporting results to the public. A few
commenters requested that ``public agency'' be replaced with ``SEA'' in
the note following Sec. 300.139.
Discussion: In order to ensure that students with disabilities are
fully included in the accountability benefits of State and district-
wide assessments, it is important that the State include results for
children with disabilities whenever the State reports results for other
children. When a State reports data about State or district-wide
assessments at the district or school level for nondisabled children,
it also must do the same for children with disabilities. Section
300.139 requires that each State aggregate the results of children who
participate in alternate assessments with results for children who
participate in the general assessment, unless it would be inappropriate
to aggregate such scores.
Section 300.139 and the Act neither require nor prohibit States
from disaggregating assessment results by disability category in
reporting results to the public; this is a matter that should be left
to the discretion of each State. The text of Sec. 300.139 tracks the
statute, which addresses reporting requirements of the SEA.
The proposed note clarified that Sec. 300.139(b) requires a public
agency to report aggregated data that include children with
disabilities, but that a public agency is not precluded from also
analyzing and reporting data in other ways (such as, maintaining a
trendline that was established prior to including children with
disabilities in those assessments).
Changes: Consistent with the decision to not include notes in the
final regulations, the note following Sec. 300.139 of the NPRM has been
removed.
Methods of ensuring services (Sec. 300.142)
Comment: Commenters emphasized that a child's right to FAPE should
not be adversely affected because the child is eligible for services
under Title XIX of the Social Security Act (Medicaid). For example,
commenters recommended adding clarification prohibiting a State
Medicaid agency or a Medicaid managed care organization from refusing
to pay for or provide a service for which it would otherwise be
responsible under Medicaid because the service is part of FAPE for a
child.
Some commenters recommended that Sec. 300.142(a)(4) be amended to
incorporate Senate language about use of Medicaid funds to finance the
cost of services provided in a school setting in accordance with a
child's IEP to ensure that Medicaid-funded services are provided in the
LRE and not in accordance with a medical model. However, some
commenters were concerned that Medicaid funding would only be available
for services for children with disabilities in school settings, and
that reimbursement for services for children in other settings, such as
the home, in accordance with their IEPs, would be denied.
Although many commenters acknowledged that Medicaid has been an
effective funding source for services in children's IEPs, clarification
was requested to ensure that there was not a delay in or denial of
services or alteration in types of services provided to children with
disabilities under these regulations, based on the rules of some other
provider or contractor.
Many commenters noted that some LEAs will delay initiating a
service until Medicaid payments are made, and requested that
Sec. 300.142(d) be amended to specify (1) a timeline to ensure that
services are not delayed until payment is received from another agency;
(2) a requirement that the LEA must provide the service and seek
reimbursement from the entity that is ultimately found to be
financially responsible; (3) a timeline for entering into interagency
agreements; and (4) a timeline for the prompt provision of
noneducational services specified in a child's IEP. Some commenters
recommended that clarification be provided to specify that State
interagency agreements are binding on contractors and managed care
organizations.
Other commenters recommended a specific enforcement mechanism to
make State IDEA grants contingent upon the existence and effective
operation of an interagency agreement that complies with IDEA.
Alternatively, the commenters' recommendation was that the regulations
be amended to provide a mechanism for school districts to seek legal
redress through the Department of Education or the judiciary against
any State agency which fails to act in accordance with an existing
legally-appropriate interagency agreement.
While many commenters found the explanation in Note 1 to this
section of the NPRM useful in understanding the intent of these
requirements and therefore recommended that the note either be retained
or incorporated into the regulation, other commenters
[[Page 12566]]
recommended that Note 1 be removed because it exceeded the statute.
Discussion: While the concerns expressed by these commenters are
very significant, most of them either already are addressed in this
section or elsewhere in these regulations. However, in light of the
general decision to remove notes from these final regulations, Note 1
should be removed as a note, but pertinent portions are incorporated in
this discussion. Regarding the concern that a child's entitlement to
FAPE not be construed as relieving a Medicaid provider or other public
insurer of its responsibility to pay for required services under these
regulations, Sec. 300.601 implements the statutory provision at section
612(e) of the Act, which provides that Part B does not permit a State
to reduce medical or other assistance or to alter eligibility under
Titles V and XIX of the Social Security Act with respect to the
provision of FAPE for children with disabilities in the State. Section
612(a)(12) of the Act, which is implemented by Sec. 300.142, reinforces
this important principle. This new statutory provision emphasizes the
obligation for interagency coordination between educational and
noneducational public agencies to ensure that all services necessary to
ensure FAPE are provided to children with disabilities, and that the
financial responsibility of the State Medicaid agency or other public
insurer shall precede that of the LEA or State agency responsible for
developing the child's IEP.
However, there is nothing in this provision that alters who is
eligible for, or covered services under Medicaid or other public
insurance programs. Therefore, the regulations should make clear that
the coverage of or service requirements for Title XIX or Title XXI of
the Social Security Act as defined in Federal statute, regulation or
policy or the coverage of or service requirements for any other public
insurance program are not affected by the IDEA regulation.
With regard to the concern that services paid for with Medicaid
funds must be provided in the LRE, and, if appropriate, at home,
payment for services cannot be conditioned solely on the setting in
which necessary services are provided. Regardless of whether services
are paid for with Part B or with Medicaid funds, all special
educational services for children with disabilities under Part B must
be individually-determined and provided in the least restrictive
setting in which the disabled child's IEP can be implemented.
In response to the suggestions of commenters, the concept explained
in the Senate and House Committee Reports on Pub. L. 105-17 which had
been incorporated into Note 1 to this section of the NPRM, should be
added to paragraph (b)(1) of these regulations to emphasize that health
services provided to children with disabilities who are Medicaid-
eligible and meet the standards applicable to Medicaid, may not be
disqualified from Medicaid reimbursement because they are services
provided in a school context in accordance with a child's IEP. However,
if a public agency is billing a State Medicaid agency or other public
insurance program for services provided under this part, the public
agency must ensure that the services and the personnel providing those
services meet applicable requirements under statute, regulation or
policy applying to that other program.
Similarly, if the IEP team determines that a child needs to receive
a particular service at home in order to receive FAPE, that service
would not be disqualified from Medicaid reimbursement under the terms
of these regulations, and States must address such concerns in the
context of their interagency agreements under the terms of paragraph
(a) of this section.
In response to numerous comments requesting clarification on the
issue of timely delivery of services paid for by noneducational public
agencies, it is particularly important to ensure that there are no
undue delays in the provision of required services due to the failure
of a noneducational public agency to reimburse the educational public
agency for required services for which the noneducational public agency
is responsible. Such delays could effectively nullify the requirements
for interagency coordination in section 612(a)(12) of the Act.
Although paragraph (a)(4) of this section already includes a
requirement that agencies have procedures that promote the
coordination, timely, and appropriate delivery of services under these
regulations, in response to concerns of commenters, the concept from
the language in the Senate and House Committee Reports on Pub. L. 105-
17, which is restated in Note 1 to this section of the NPRM, is
important to clarify understanding of these final regulations.
Paragraph (b)(2) of this section should be revised to clarify that the
provision of services under this section must be provided in a timely
manner.
No specific timelines have been included in these regulations.
However, States are required to take the necessary steps to enter into
appropriate interagency agreements between educational and
noneducational public agencies, including ensuring the prompt
resolution of interagency disputes. Effective interagency coordination
should facilitate the timely delivery of special educational services
as well as minimize any undue delays in the delivery of such services
financed by noneducational public agencies.
Despite suggestions of commenters, no provision has been added
regarding the responsibilities of contractors, since the noneducational
public agency, not the contractor, is the party to the agreement.
No enforcement mechanism has been specified in these regulations.
Under paragraph (a) of this section, the SEA must develop a mechanism
for resolving disputes between respective agencies regarding financial
responsibility for required services, and must ensure that all services
needed to ensure the provision of FAPE are provided, including during
the pendency of any interagency dispute.
Because a mechanism for interagency coordination is a condition of
eligibility for assistance under Part B, a State that fails to develop
an effective mechanism for resolving interagency disputes and ensuring
the provision of required services during the pendency of such disputes
could jeopardize its continued eligibility for IDEA funding.
Further, under section 613(a)(1) of the Act, in order for an LEA to
be eligible for Part B funds from the State for any fiscal year, the
LEA must have in effect policies, procedures, and programs that are
consistent with the State policies and procedures established under
section 612 of the Act. This would include the requirement in section
612(a)(12) relating to methods of ensuring services.
Changes: Section 300.142 has been amended by adding language to
paragraph (b)(1) to specify that a noneducational public agency may not
disqualify an eligible service for Medicaid reimbursement because that
service is provided in an educational context. Paragraph (b)(2) has
been amended to indicate that services must be provided in a timely
manner, by the LEA (or State agency responsible for developing the
child's IEP). Note 1 to this section of the NPRM has been removed. A
new paragraph (i) has been added to this section to clarify that
nothing in this part should be construed to alter the requirements
imposed on a State Medicaid agency, or any other agency administering a
public insurance program under Federal statute, regulations or policy
for Title XIX or
[[Page 12567]]
Title XXI of the Social Security Act, or any other public insurance
program.
Comment: Commenters recommended that a statement be added to
Sec. 300.142(a)(4) to specify that services financed as a result of
interagency coordination are to supplement, not supplant, services
provided by the LEA. Other commenters asked that Sec. 300.142(a)(4) be
amended to specify that school-employed personnel must be the first
resource for providing related services. In addition, commenters also
recommended that clarification be added to specify that the use of
contract personnel or other arrangements should not supersede or
supplant the use of school based personnel, with very limited
exceptions.
Discussion: The requirement in section 612(a)(12)(A) of the Act,
also reflected in paragraph (a)(1) of this section (which specifies
that the financial responsibility of the State Medicaid agency or other
public insurer of children with disabilities must precede that of the
LEA or State agency responsible for the provision of FAPE) should not
be construed to mean that Medicaid-funded services are supplemental to
the basic services provided under these regulations. Regardless of the
source of payment, the public agency responsible for educating the
disabled child still must ensure that the child receives all required
services at no cost to the parents. Therefore, if Medicaid funds only a
portion of required services based on service caps, the public agency
responsible for the provision of FAPE must ensure that any remaining
necessary services are provided at no cost to the parents. However, a
public agency may not make decisions regarding the provision of
required services to children with disabilities under these regulations
based solely on availability of Medicaid funding. To the contrary, if a
public agency determines that particular services are necessary to
ensure the provision of FAPE to children with disabilities, those
services must be provided at no cost to the parents, regardless of
whether Medicaid funds the service.
No clarification has been provided regarding selection of personnel
to provide required services under these regulations. In ensuring the
provision of FAPE, public agencies may use any personnel that meet
applicable State standards in accordance with Secs. 300.136 and 300.23
of these regulations. However, as noted above, if a public insurance
program is billed for services provided under this part, those services
must meet the requirements of that program, including personnel
standards that apply to that program, in addition to conforming with
the requirements of this part. Once determinations about personnel
qualifications have been made, Part B does not govern the manner in
which necessary personnel are selected to meet instructional needs
under these regulations.
Changes: None.
Comment: Commenters recommended clarification to specify that all
services must be free from direct and indirect costs to parents. A
principal concern of commenters was that even in circumstances where it
is highly probable that future financial costs will result, parents
feel constrained to permit public agencies to access their insurance
because of the fear of losing necessary services for their disabled
children.
Many commenters believe that there is always a cost associated with
using private insurance, i.e., exhaustion of lifetime caps, decreased
benefits, increased co-pays and costs, risk of future uninsurability
with another insurance carrier, and possible termination of health
insurance. These commenters recommended that a new paragraph be added
to this section, which would require public agencies to inform parents
that voluntary use of their private insurance could entail these risks,
that parents have no obligation to permit access to their insurance
payments, and have the right to say no. These commenters also
recommended that Note 2 to this section of the NPRM be deleted.
Some commenters also objected that Sec. 300.142(e) does not support
the concept of obtaining parental permission for use of public
insurance, and recommended that the regulation specify that parents
must give informed consent to use of their public or private insurance
which (1) must be voluntary on the part of parents, (2) renewed at
least annually, (3) can be revoked at any time, and (4) must include a
written description of ``potential financial costs'' associated with
using their insurance. Other commenters agreed with proposed paragraph
(e)(1) and Note 2 and urged that they be retained in the final
regulations.
Discussion: Proposed paragraph (e)(1) of this section of the NPRM
incorporated the interpretation of the requirements of Part B and
Section 504 contained in the Notice of Interpretation (Notice) on use
of parents' insurance proceeds, published on December 30, 1980 (45 FR
86390). Under the interpretation in the Notice, public agencies may not
access private insurance if parents would incur a financial cost, and
use of parent's insurance proceeds, if parents would incur a financial
cost, must be voluntary on the part of the parent.
In light of the concerns of numerous commenters that the use of
private insurance always involves a current or future financial cost to
the parents, and the Department's experience in administering Part B,
the regulations regarding use of private insurance should be revised.
As numerous commenters have indicated, parents who permit use of their
private insurance often experience unanticipated financial
consequences. These parents often act without full knowledge of the
future impact of their decision. Public agencies should be permitted to
access a parent's private insurance proceeds only if the parent
provides informed consent to use.
Consistent with the definition of ``consent'' in these regulations,
such consent must fully inform parents that they could incur financial
consequences from the use of their private insurance to pay for
services that the school district is required to provide under the
IDEA, such as surpassing a cap on benefits, which could leave them
uninsured for subsequent services, and that the parents should check
with their private insurance provider so that they understand the
foreseeable future financial costs to themselves before they give
consent. This consent should be obtained each time a public agency
attempts to access private insurance, and be voluntary on the part of
the parents.
In addition, parents need to be informed that their refusal to
permit a public agency to access their private insurance does not
relieve the public agency of its responsibility to ensure that all
required services are provided at no cost to the parents. However, the
suggestion of commenters that parents be informed that they have the
right to refuse use of their private insurance because of future risks
of financial consequences has not been adopted because it is
unnecessary, in light of the new requirement that public agencies
obtain parental consent to use a parent's private insurance.
Changes: A new paragraph (f) has been added to clarify the
circumstances under which public agencies may access parent's private
insurance to pay for required services under these regulations. Note 2
to this section of the NPRM has been removed.
Comment: The majority of commenters urged regulations on the use of
public insurance that would parallel those governing use of private
insurance. Commenters recommended that regulations clarify that the
same protections available to parents when
[[Page 12568]]
public agencies access private insurance are available to parents when
public agencies access public insurance. These commenters also
disagreed with the statement on page 55036 of the preamble to the NPRM
that suggested that regulation on this issue was not necessary because
there is no financial loss to parents under current public assistance
programs such as Medicaid.
Examples of financial costs cited by commenters resulting from
Medicaid use were (1) limitation or decrease in public insurance
benefits available to children with disabilities and their families for
non-school needs; (2) a requirement that private insurance initially be
used before Medicaid funds are made available; (3) limitations on
amounts of services that can be reimbursed with Medicaid funds; and (4)
premiums or co-pays resulting from use of Medicaid funding.
Commenters also requested that the definition of ``financial cost''
be expanded to include costs such as a risk of losing eligibility for
home and community-based waivers based upon aggregate health-related
expenditure, and costs associated with Medicaid buy-ins. These
commenters also recommended that the regulations clarify that parental
consent must be obtained before a public agency can access Medicaid or
other public insurance benefits available to the parent.
Some commenters urged the elimination of definitions or terms not
included in the statute, such as the definition of financial cost.
Other commenters recommended that changes not be made and agreed with
the statement in the preamble to the NPRM that there is no financial
cost to parents who access Medicaid or other public insurance benefits.
These commenters believed that the regulation should state that
parental permission need not be obtained before accessing public
insurance. Some of these commenters also recommended further
observation and study of current State practices to ensure that the
regulations do not have an adverse impact on currently existing and
effective financial systems. These commenters also recommended
additional guidance to allow States maximum flexibility to utilize all
available resources.
Some commenters recommended that Note 3 be retained as a note or
that pertinent portions be incorporated into the regulation, while
others requested that Note 3 be deleted.
Discussion: As numerous commenters pointed out, the statutory basis
of the 1980 Notice of Interpretation governing use of private insurance
proceeds also applies to children with disabilities who have public
insurance. In both instances services under Part B must be at no cost
to parents. In view of the comments received, it appears that the
statement contained on page 55036 of the preamble to the NPRM, which
indicates that there is no risk of financial cost to parents if public
agencies use Medicaid or other Federal, State or local public insurance
programs, is not entirely accurate.
While it is essential that public agencies have the ability to
access all available public sources of support to pay for required
services under these regulations, services must be provided at no cost
to parents. However, in the majority of cases, use of Federal, State or
local public insurance programs by a public educational agency to
provide or pay for a service to a child will not result in a current or
foreseeable future cost to the family or child. For example, under the
Early Periodic Screening, Diagnosis and Treatment (EPSDT) program of
Medicaid, potentially available benefits are only limited based on what
the Medicaid agency determines to be medically necessary for the child
and are not otherwise limited or capped. Currently, approximately 90
percent of the school-aged children who are eligible for public
insurance programs are eligible for services under the EPSDT program.
Where there is no cost to the family or the child, public educational
agencies are encouraged to use the public insurance benefits to the
extent possible. It also should be noted that a public educational
agency is required to provide a service that is needed by a child and
has been included on his or her IEP but that is not considered
medically necessary under EPSDT or other public insurance program. As
is the case for any other service required by a child's IEP, if a
service on a child's IEP is provided by a public insurance program at a
site that is separate from the child's school, the public educational
agency is responsible for ensuring that the transportation is at no
cost to the child or family.
There are some situations, however, that should be addressed by the
regulation to ensure that use of public insurance does not result to a
cost to the child or family. In some public insurance programs,
families are required to pay premiums or co-pay amounts in order to be
covered by or use the public insurance. Parents of children with
disabilities under Part B should not be required to assume those costs
so that a school district can use the child's public insurance to cover
services required under Part B. While these regulations do not affect
the requirement under Medicaid that the State Medicaid agency pursue
liable third party payers such as private insurance providers, for the
reportedly relatively small number of children and families who are
covered by both private and public insurance, under IDEA parents may
not be required to assume costs incurred through use of private
insurance so that the school can get reimbursement from the public
insurer for services in the child's IEP. Under IDEA, if a Medicaid-
enrolled child also is covered by private insurance, the public agency
must choose one of two options--either obtain the parent's consent to
use the private insurance, or not use Medicaid to provide the service.
One way a public agency might be able to obtain that consent would be
to offer to cover the costs that would normally, under Medicaid, be
assessed against the private insurer. Similarly, if under Medicaid a
parent or family normally would incur an out-of-pocket expense such as
a co-pay or deductible, a public agency may not require parents to
incur that cost in order for their child to receive services required
under the IDEA. In such a case, again, the public agency must choose
one of two options--either cover the out-of-pocket expense so that the
parent does not incur a cost, or not use Medicaid to provide the
service. The regulations should make clear that a public agency is able
to use Part B funds to pay the cost that under Medicaid requirements
would otherwise be covered by a third party payer.
Public insurance limits of the amounts of services that will be
covered based on the public insurer's determination of what is
medically necessary for the child are not prohibited by Part B.
However, a public educational agency's use of a child's benefits under
a public insurance program should not result in the family having to
pay for services that are required for the child outside of the school
day and that could be covered by the public insurance program. For
example, if a public insurer were to determine that eight hours of
nursing services were medically necessary for a child whose medical
devices needed constant trained supervision, a school district's use of
six of those hours during the school day would mean that family would
have to assume the financial responsibility for those services
throughout the night. In such a case, the family would be incurring a
cost due to the school district's use of the public insurance benefit.
Risk of loss
[[Page 12569]]
of eligibility for home and community-based waivers, based in aggregate
health-related expenditures could also constitute a cost to a family
for those few children with very extensive health related needs.
A public agency may not require a parent to sign up for Medicaid or
other public insurance benefits as a condition for the child's receipt
of FAPE under Part B. A child's entitlement to FAPE under Part B exists
whether or not a parent refuses to consent to the use of their Medicaid
or public insurance benefits or is unwilling to sign up for Medicaid or
other public insurance benefits. Children with disabilities are
entitled to services under Part B, regardless of parents' personal
choices to access Medicaid or other public insurance benefits.
Although section 612(a)(12) of the Act makes clear States'
obligations to ensure that available public sources of support precede
responsibilities of public agencies under these regulations, Medicaid
or other public insurance benefits cannot be considered available
public sources of support when parents decline to access those public
benefits. However, there is nothing in these regulations that would
prohibit a public agency from requesting that a parent sign up for
Medicaid or other public insurance benefits. Furthermore, a public
agency would not be precluded from using a child's public insurance,
even if parents incur a financial cost, so long as the public agency's
use of a child's public insurance is voluntary on the part of the
parent.
In order to ensure that children with disabilities are afforded a
free appropriate public education at no cost to their parents, the
regulation should be amended to address children with disabilities who
are covered by public insurance by specifying that a public agency may
use Medicaid or other public insurance benefits programs in which a
child participates with certain exceptions. Those exceptions would be
that a public agency may not require parents to sign up for public
insurance in order for their child to receive FAPE under Part B of the
Act; require parents to incur out-of-pocket expenses related to filing
a public insurance claim for Part B services; and may not use the
public insurance if the use would decrease coverage or benefits,
increase premiums, lead to discontinuation of insurance, result in the
family paying for services that otherwise would be covered by the
public insurance and that are required by the child outside of the time
the child is in school, or risk loss of eligibility for home and
community-based waivers. However, unlike the rule related to private
insurance, Part B would not require the public agency to obtain parent
consent each time it uses the public insurance. Under the terms of the
public insurance program, consent may be required before a public
educational agency may use a child or family's public insurance
benefits.
In light of the importance of the issues addressed in Note 3 to
this section of the NPRM, Note 3 should be removed as a note, and a new
paragraph (g), regarding use of Part B funds, should be added to this
regulation. This paragraph would permit use of Part B funds for (1) the
cost of those required services under these regulations, if parents
refuse consent to use public or private insurance; and (2) the costs of
accessing parent's insurance, such as paying deductible or co-pay
amounts.
Changes: Paragraph (e) has been amended to address circumstances
under which a public agency can access a parent's Medicaid or other
public insurance benefits to pay for required services under these
regulations. The definition of financial costs in the NPRM has been
deleted. Note 3 to this section of the NPRM has been removed, and the
substance of Note 3 has been incorporated into a new paragraph (g) of
this section.
Comment: Several commenters were concerned that Sec. 300.142(f) of
the NPRM makes it permissible for public agencies not to use funds
reimbursed from another agency to provide special education and related
services to children with disabilities. Suggestions made by commenters
were that this paragraph either be deleted or changed to require that
these reimbursed funds must be used in this program.
Commenters recommended that Note 4 be deleted since it gives public
agencies the option of dedicating these funds to the Part B program
only if they choose to do so. These commenters believe that this change
is necessary for this regulation to be consistent with the purpose of
section 612(a)(12) of the Act, which places financial responsibility
for the provision of special education and related services on agencies
other than schools. Other commenters recommended that Note 4 be deleted
because it is redundant of Sec. 300.3, which provides that the
regulations in 34 CFR part 80 apply to this program.
Discussion: In response to concerns of commenters, Note 4 should be
removed, but pertinent portions of Note 4 should be incorporated into
the text of the final regulations. This section should clarify that, if
a public agency receives funds from public or private insurance for
services under these regulations, the public agency is not required to
return those funds to the Department or to dedicate those funds for use
in the Part B program, which is how program income must be used,
although a public agency retains the option of using those funds in
this program if it chooses to do so. Reimbursements are similar to
refunds, credits, and discounts which are specifically excluded from
program income in 34 CFR 80.25(a).
In addition, the regulations should clarify that funds expended by
a public agency from reimbursements of Federal funds will not be
considered State or local funds for purposes of Secs. 300.154 and
300.231. If Federal reimbursements were considered State and local
funds for purposes of the maintenance of effort provisions in
Secs. 300.154 and 300.231 of these regulations, SEAs and LEAs would
experience an artificial increase in their base year amounts and would
then be required to maintain a higher, overstated level of fiscal
effort in the succeeding fiscal year.
Changes: Section 300.142(f) has been redesignated as
Sec. 300.142(h) and revised to clarify that (1) A public agency that
receives proceeds from public or private insurance for services under
these regulations is not required to return those funds to the
Department or to dedicate those funds to this program because they will
not be treated as program income under 34 CFR 80.25; and (2) funds
expended by a public agency from reimbursements of Federal funds will
not be considered State or local funds for purposes of Secs. 300.154
and 300.231 of these regulations. Note 4 to this section of the NPRM
has been removed.
Recovery of Funds for Misclassified Children (Sec. 300.145)
Comment: Some commenters requested that the regulation be revised
to provide a State the opportunity for a hearing before a student is
declared ineligible for Part B funding.
Discussion: Section 300.145 requires that each State have on file
with the Secretary policies and procedures that ensure that the State
seeks to recover any funds it provided to a public agency under Part B
of the Act for services to a child who is determined to be erroneously
classified as eligible to be counted under section 611(a) or (d) of the
Act. There is no need to revise the regulation to provide for
administrative review of a decision by this Department that Part B
funds should be recovered from a State because of an erroneous child
count. The Department uses the administrative appeal procedures set out
at 34 CFR Part 81 in recovering funds because of an erroneous child
[[Page 12570]]
count for cases where the Department is attempting to recover grant
funds, including Part B funds.
Changes: None.
Suspension and Expulsion Rates (Sec. 300.146)
Comment: Some commenters requested the regulation be revised to
permit States to use sampling procedures to obtain the data that they
will examine pursuant to Sec. 300.146(a).
Discussion: Obtaining complete and accurate data on suspension and
expulsion is too critical to be collected on a sampling basis.
Changes: None.
Comment: Some commenters requested that Sec. 300.146(b) be revised
to require that a State review and if appropriate revise its
comprehensive system of personnel development, if the State finds that
significant discrepancies are occurring in the rate of long-term
suspensions and expulsions of children with disabilities among LEAs in
the State or compared to the rates for nondisabled children within
LEAs.
Discussion: Section 300.146(b) requires that, if an SEA finds that
significant discrepancies are occurring in the rate of long-term
suspensions and expulsions of children with disabilities among LEAs in
the State or compared to the rates for nondisabled children within
LEAs, the SEA must, if appropriate, revise (or require the affected
State agency or LEA to revise) its policies, procedures, and practices
relating to the development and implementation of IEPs, the use of
behavioral interventions, and procedural safeguards, to ensure that
these policies, procedures, and practices comply with the Act.
Among the policies that a State would review and if necessary
revise are its CSPD policies and procedures related to ensuring that
personnel are adequately prepared to meet their responsibilities under
the Act. Further, Sec. 300.382 specifically requires each State to
develop strategies to ensure that all personnel who work with children
with disabilities (including both professional and paraprofessional
personnel who provide special education, general education, related
services, or early intervention services) have the skills and knowledge
necessary to meet the needs of children with disabilities; and these
strategies must include how the State will ``* * * enhance the ability
of teachers and others to use strategies, such as behavioral
interventions, to address the conduct of children with disabilities
that impedes the learning of children with disabilities and others''
(Sec. 300.382(f)). Further guidance is not needed.
Changes: None.
Public Participation (Sec. 300.148)
Comment: None.
Discussion: Section 300.148 requires each State to ensure that,
prior to the adoption of any policies and procedures needed to comply
with this part, there are public hearings, adequate notice of the
hearings, and an opportunity for comment available to the general
public, including individuals with disabilities and parents of children
with disabilities consistent with Secs. 300.280-300.284.
In the past, a number of States have indicated that certain State
special education policies that are also required under this part had
previously been subjected to public review and comment under the
State's own public participation process, and the States have expressed
concern about having to repeat the process for those policies under
Secs. 300.280-300.284.
The need for an effective public participation process is critical
to the adoption and implementation of policies and procedures that
comply with the requirements under this part. However, if a State, in
adopting State special education policies had previously submitted
those policies through a public participation process that is
comparable to and consistent with the requirements of Secs. 300.280-
300.284, it would be unnecessary and burdensome to require the State to
repeat the process.
Therefore, a provision would be added to Sec. 300.148 to clarify
that a State will be considered to be in compliance with this provision
if the State has subjected the policy or procedure to a public review
and comment process that is required by the State for other purposes
and that State public participation process with respect to factors
such as the number of public hearings, content of the notice of
hearings, and length of the comment period, is comparable to and
consistent with the requirements of Secs. 300.280-300.284.
Changes: Section 300.148 has been amended to include the provision
described in the above discussion.
Prohibition Against Commingling (Sec. 300.152)
Comment: None.
Discussion: The proposed note clarified that the assurance required
by Sec. 300.152 is satisfied by the use of a separate accounting system
that includes an audit trail of the expenditure of the Part B funds and
that separate bank accounts are not required, and referred the reader
to 34 CFR Sec. 76.702 in EDGAR, regarding Fiscal control and fund
accounting procedures. Because this information provides useful
guidance to States, it should be incorporated into the regulations.
Changes: The substance of the note is incorporated into the text of
the regulation.
Maintenance of State Financial Support (Sec. 300.154)
Comment: None.
Discussion: States should be able to demonstrate that they have not
reduced the amount of State financial support for special education and
related services for children with disabilities, whether made directly
available for those services or otherwise made available in recognition
of the excess costs of educating children with disabilities on either a
total or per child basis. A number of States, for example, have State
funding formulas that are based on enrollment which could result in a
decrease in the total amount of State financial support if enrollment
declines.
Changes: Paragraph (a) of this section has been revised to clarify
that either a total or per child level of State financial support is
acceptable.
Annual Description of Use of Part B Funds (Sec. 300.156)
Comment: Some commenters requested that the regulation be made
consistent with the statutory provision at section 611(f)(5) of the Act
by deleting Sec. 300.156(b).
Discussion: It is reasonable and appropriate to permit a State, if
the information which it would submit pursuant to Sec. 300.156(a) for a
given fiscal year is the same as the information that it submitted for
the prior fiscal year, to submit a letter to that effect rather than
resubmitting information that it has previously submitted.
Changes: None.
Excess Cost Requirement (Sec. 300.184)
Comment: Some commenters asked that the regulation be revised to
require regular financial audits to ensure compliance with the excess
cost requirements.
Discussion: Each SEA, as part of its general supervision
responsibility under Sec. 300.600, must ensure that LEAs comply with
all requirements of Part B, including the requirements of Sec. 300.184
regarding excess cost. Each SEA may meet this requirement through a
variety of methods, including monitoring and financial audits.
Changes: None.
[[Page 12571]]
Meeting the Excess Cost Requirement (Sec. 300.185)
Comment: None.
Discussion: The proposed note clarified the Department's
longstanding position that: (1) The excess cost requirement means that
the LEA must spend a certain minimum amount for the education of its
children with disabilities before Part B funds are used, ensuring that
children served with Part B funds have at least the same average amount
spent on them, from sources other than Part B, as do the children in
the school district in elementary or secondary school as the case may
be; (2) excess costs are those costs of special education and related
services that exceed the minimum amount; (3) if an LEA can show that it
has (on the average) spent the minimum amount for the education of each
of its children with disabilities, it has met the excess cost
requirement, and all additional costs are excess costs; and (4) Part B
funds can then be used to pay for these additional costs. However,
several commenters requested that the substance of all Notes be
incorporated into the text of the regulations or the Notes deleted.
Changes: The note has been deleted.
Requirements for Establishing Eligibility (Sec. 300.192)
Comment: Section 300.192(c) requires that, ``Notwithstanding any
other provision of Secs. 300.190-300.192, an educational service agency
shall provide for the education of children with disabilities in the
least restrictive environment, as required by Sec. 300.130.'' Some
commenters requested that the regulation be revised to emphasize the
appropriateness of children's educational programs as strongly as
placement in the least restrictive environment.
Discussion: Section 300.192(c) clarifies that notwithstanding
whether an LEA establishes Part B eligibility as a single LEA or
jointly with other LEAs, it must ensure compliance with the LRE
requirements of the Act. This provision does not in any way diminish an
LEA's responsibility to ensure that FAPE is made available to all
eligible children with disabilities.
Changes: None.
LEA and State Agency Compliance (Sec. 300.197)
Comment: Some commenters requested that the regulations be revised
to require that each SEA conduct sufficient monitoring activities in
each LEA and State agency, at least once every three years, to enable
the SEA to make findings regarding the extent to which the agency is in
compliance. Other commenters requested that Sec. 300.197(a) be revised
to reduce or cease to provide further payments under Part B to an LEA
or State agency if SEA finds that the agency is engaging in a pattern
of noncompliance or has failed promptly to remedy any individual
instance of noncompliance.
Section 300.197(c) requires that an SEA consider any decision
resulting from a hearing under Secs. 300.507-300.528 that is adverse to
the LEA or State agency involved in the decision in carrying out its
functions under Sec. 300.197. Some commenters requested that the
regulation be revised to require that the SEA also consider adverse
decisions on complaints filed under Secs. 300.660-300.662.
Discussion: Each SEA, as part of its general supervision
responsibility under Sec. 300.600, must ensure that all public agencies
meet the educational standards of the SEA, including the requirements
of Part B; and the General Education Provisions Act requires that each
SEA use effective monitoring methods to identify and correct
noncompliance with Part B requirements. In implementing this
requirement, each SEA must determine: (1) the frequency with which it
must monitor each of the public agencies in the State in order to
ensure compliance; and (2) whether a single act or pattern of
noncompliance demonstrates substantial noncompliance necessitating the
SEA to pursue financial sanctions.
Unlike hearings that are resolved by impartial due process hearing
officers who are not SEA employees, all complaints under the State
complaint procedures alleging a violation of Part B are resolved
directly by the SEA, which must also ensure correction of any
violations it identifies in response to such complaints. Therefore, the
SEA will, as part of its general supervision responsibilities, consider
any adverse complaint decisions in meeting its responsibilities under
Sec. 300.197, and the requested revision is not necessary.
Changes: None.
Maintenance of Effort (Sec. 300.231)
Comment: Some commenters expressed concern that the provision on
local maintenance of effort (MOE) would mean that even in years when
State legislatures increased State appropriations to offset financial
expenditures of LEAs, those funds could not be included in making
determinations as to whether the maintenance of effort provision had
been met.
Discussion: The statutory LEA-level maintenance of effort provision
requires that LEAs do not use the funds they are awarded under the IDEA
to reduce the level of expenditures that they make from local funds
below the level of those expenditures for the preceding year (except as
provided in Secs. 300.232 and 300.233). The statutory provision
replaces a prior regulatory provision that had required LEAs to
maintain the same total or per capita expenditures from State and local
funds as in prior years, which was viewed as financially burdensome by
LEAs when they were required, because of this prior regulatory
provision, to replace out of local funds any amount by which a State
reduced the amount of State funds going to an LEA.
Therefore, in recognition of this change, the regulation would
allow a comparison of local funding in the grant year to local funding
in a prior year. If a State assumes more responsibility for funding
these services, such as when a State increases the State share of
funding for special education to reduce the fiscal burden on local
government, an LEA may not need to continue to put the same amount of
local funds toward expenditures for special education and related
services in order to demonstrate that it is not using IDEA funds to
replace prior expenditures from local funds.
On the other hand, an LEA should not be able to replace local funds
with State funds when the combination of local and State funding is not
at least equal to a base amount from the same sources, as this would
result in reductions in expenditures not contemplated by the statute.
Since those Federal funds for which accountability is not required to a
Federal or State agency are expended at the discretion of an LEA, they
may be included in computations of local funds budgeted and expended
for special education and related services for children with
disabilities.
In determining whether an LEA could receive a subgrant in any year,
an SEA should compare the amount of funds from appropriate sources
budgeted for the grant year to the amount actually expended from those
sources in the most recent fiscal year for which data are available.
Reductions in the amount budgeted would be permissible for the
conditions described in Secs. 300.232 and 300.233, if applicable. An
LEA that did not expend in a grant year from those sources at least as
much as it had in the year on which the maintenance of effort
comparison for that year is based, would be liable in an audit for
repayment of the amount by which it failed to expend to equal the prior
year's expenditures,
[[Page 12572]]
up to the total amount of the LEA's grant.
Changes: A new paragraph has been added to clarify the maintenance
of effort provision.
Exception to Maintenance of effort (Sec. 300.232)
Comment: Some commenters requested that the regulation be revised
to specifically require that lower-salaried staff who replace special
education and related services personnel, who depart voluntarily or for
just cause, meet entry-level academic degree requirements that are
based on the highest requirements in the State for the relevant
profession or discipline. Other commenters requested retention of the
provision in Sec. 300.233(a) that an LEA may reduce its expenditures
from one year to the next if the reduction is attributable to the
voluntary departure, by retirement or otherwise, or departure for just
cause, of special education or related services personnel, but that the
language specifying that these personnel must be replaced by qualified,
lower-salaried staff and the note following this regulation be deleted.
Discussion: The requirements of Sec. 300.136 regarding personnel
standards apply to personnel who replace special education and related
services personnel, who depart voluntarily or for just cause. It is
important to make clear in the regulation that all staff providing
special education and related services must be qualified.
The Senate and House committee reports on Pub. L. 105-17, with
respect to the voluntary departure of special education personnel
described in Sec. 300.232(a), clarify that the intended focus of this
exception is on special education personnel who are paid at or near the
top of the salary schedule, and sets out guidelines under which this
exception may be invoked by an LEA. These guidelines (which provide
that the agency must ensure that such voluntary retirement or
resignation and replacement are in full conformity with existing school
board policies in the agency, with the applicable collective bargaining
agreement in effect at that time, and with applicable State statutes)
are important in the implementation of this section and, therefore,
should be added to the regulation. (S. Rep. No. 105-17, p. 16, H. R.
Rep. No. 105-95, p. 96 (1997)).
Changes: Paragraph (a) has been amended to include the substance of
the note, consistent with the above discussion, and the note has been
removed.
Comment: Some commenters requested that Sec. 300.232(c)(3) be
revised to specify that an LEA may reduce its expenditures from one
year to the next if the reduction is attributable to the termination of
the LEA's obligation to provide a program of special education to a
child with a disability that is an exceptionally costly program, as
determined by the SEA, because the child no longer needs the program of
special education, as determined in accordance with the IEP
requirements at Secs. 300.346 and 300.347.
Discussion: Because any change in the special education and related
services provided to a child with a disability must be made in
accordance with the IEP requirements, the requested revision is not
necessary. The circumstances under which an LEA may reduce effort
because it no longer needs to provide an exceptionally costly program
are addressed by the regulations at Sec. 300.232(c).
Changes: None.
Comment: Some commenters requested that the regulation be revised
to require an LEA to submit to the SEA an assurance that all students
with disabilities in the LEA are receiving a free appropriate public
education, before the LEA would be permitted to reduce its
expenditures.
Discussion: As part of its general supervision responsibility under
Sec. 300.600, each SEA is required to ensure that all public agencies
in the State are complying with the requirement that they make FAPE
available to all eligible children in their respective jurisdictions.
Therefore, the requested revision is not necessary.
Changes: None.
Schoolwide Programs Under Title 1 of the ESEA (Sec. 300.234)
Comment: A commenter requested that, in Sec. 300.234(b), the
reference to Sec. 300.230(a) be changed to also include Sec. 300.230(b)
or Sec. 300.231(a). Another commenter asked if an LEA can use its State
and local special education funds in a schoolwide program without
accounting for expenditures of those funds for special education and
related services, and added that if such use is allowable, could the
State and local funds be considered in the LEA's maintenance of effort
calculation.
Discussion: The reference in Sec. 300.234 to Sec. 300.230(a) in the
NPRM should be changed to Sec. 300.230(b). If Part B funds are used in
accordance with Sec. 300.234, the funds would not be limited to the
provision of special education and related services. They could also be
used for other school-wide program activities. However, children with
disabilities in school-wide programs must still receive special
education and related services in accordance with properly developed
IEPs and must still be afforded all the rights and services guaranteed
under the IDEA.
The use of IDEA funds in a school-wide program does not change the
LEA's obligation to meet the maintenance of effort requirement in
Sec. 300.231.
Consistent with the general decision regarding the disposition of
notes, the note following Sec. 300.234 would be removed. However, the
note includes important guidance related to ensuring that children with
disabilities in schoolwide program schools still receive services in
accordance with a properly developed IEP, and still be afforded all of
the rights and services guaranteed to children with disabilities under
the IDEA. Therefore, this guidance should be added to the text of the
regulation as a specific provision.
It should be pointed out that the use of funds under Part B of the
Act in accordance with Sec. 300.234 is beneficial to children with
disabilities, and, contrary to informal concerns that have been raised,
the use of the Part B funds in schoolwide programs does not deplete
resources for children with disabilities. Rather, it helps to ensure
effective inclusion of those children into the regular education
environment with nondisabled children.
Changes: Paragraphs (b), (c), and (d) have been reorganized as
paragraph (b) and (c) and revised to include the substance of the note.
The note has been deleted.
Permissive Use of Funds (Sec. 300.235)
Comment: Some commenters requested clarification as to whether LEAs
are still required to maintain ``time and effort'' or other records to
document that Part B funds have been expended only on allowable costs.
Other commenters expressed their concern that, with no limitation on
the number of children who do not have disabilities who may benefit
from special education and related services, the needs of children with
disabilities will not be met. Some commenters asked that the regulation
be revised to require regular financial audits to ensure compliance
with the excess cost requirements.
Discussion: Section Sec. 300.235 sets forth circumstances under
which an LEA may use Part B funds to pay for the costs of special
education and related services and supplementary aids and services
provided in a regular class or other education-related setting to a
child with a disability and to develop and implement a fully integrated
and coordinated services system; this
[[Page 12573]]
section does not impact the documentation requirements where an LEA
uses a particular individual to provide special education or related
services during one portion of the day or week and to perform other
functions at other times for which the LEA cannot pay using Part B
funds.
Although Sec. 300.235 makes clear that Part B does not prohibit
benefit to nondisabled children, it does not permit Part B funds to be
expended in a regular class except for special education and related
services and supplementary aids and services to a child with a
disability in accordance with the child's IEP. If special education and
related services are being provided to meet the requirements of the IEP
for a child with a disability, this provision permits other children to
benefit, and in such circumstances no time and effort records are
required under Federal law, thus reducing unnecessary paperwork.
This provision does not in any way diminish an SEA or other public
agency's responsibilities under Part B to ensure that FAPE is made
available to each eligible child with a disability. Each SEA must, as
part of its general supervision responsibility under Sec. 300.600,
ensure compliance with the requirements of Sec. 300.235; the methods
that the SEA uses to ensure compliance may include monitoring and
financial audits of LEAs. Under the Single State Audit Act, SEAs are
required to ensure that periodic audits are conducted, and the General
Education Provisions Act requires periodic monitoring.
Changes: None.
Treatment of Charter Schools and Their Students (Sec. 300.241)
Comment: None.
Discussion: The proposed note clarified that the provisions of this
part that apply to other public schools also apply to public charter
schools, and, therefore, children with disabilities who attend public
charter schools and their parents retain all rights under this part.
The Senate and House Committee Reports on Pub. L. 105-17, which, in
reference to this provision states:
The Committee expects that charter schools will be in full
compliance with Part B. (S. Rep. No. 105-17, p 17, H. R. Rep. No.
105-95, p. 97 (1997))
Thus, to ensure the protections of the rights of children with
disabilities and their parents, this concept should be incorporated
into the regulations.
Changes: The substance of the note has been incorporated into the
discussion under Sec. 300.18, and in the regulations under
Sec. 300.312. The note has been deleted.
Subpart C
Provision of FAPE (Sec. 300.300)
Comment: Some commenters expressed support for a seamless system of
services for disabled children from birth through age 21, and
recommended that Note 3 under Sec. 300.300 be added to the regulation
to highlight the need for States to plan their child find and other
activities to meet the age range for FAPE. A few commenters stated
their understanding that the exemption to the ``50% rule'' in
Sec. 300.300 (related to FAPE for disabled children aged 3 through 5 in
States receiving a Preschool grant) was temporary, and asked if the
exemption would continue in effect.
Discussion: In light of the previous discussion regarding the
disposition of notes under this part (see ``General Comments''), Note
3, which provides only clarifying information to explain why the age
range for child find (birth through age 21) is greater than the age
range for providing FAPE, should be deleted and not moved into the
regulation. Further, Note 1 (FAPE applies to children in school and
those with less severe disabilities) is no longer relevant as the
statute now is commonly understood to apply to all children with
disabilities, not just those out of school or with severe disabilities,
and should be deleted. The substance of Note 2 (importance of child
find to the FAPE requirement) should be incorporated into the text of
the regulation at Sec. 300.300(a)(2) because of the crucial role that
an effective child find system plays as part of a State's obligation of
ensuring that FAPE is available all children with disabilities.
The provision in Sec. 300.300(b)(4) clarifies that if a State
receives a Preschool Grant under section 619 of the Act, the ``50%
rule'' does not apply with respect to disabled children aged 3 through
5 years, because the State must ensure that FAPE is available to
``all'' disabled children in that age range within the State--as a
condition of receiving such a grant. (See Secs. 301.10 and 301.12)
Therefore, this provision should be included, without change, in these
final regulations.
Changes: The substance of Note 2 has been added as a new paragraph
(a)(2). Notes 1--3 have been removed.
FAPE--Methods and Payment (Sec. 300.301)
Comment: One commenter stated that there is no authority in Federal
law to permit a State to use unlimited local resources to meet the
State's requirement for FAPE, and recommended that the statement in
Sec. 300.301(a) related to using whatever State, local, or private
sources of support be replaced by providing that a State may use all of
its State funds to ensure FAPE. Some commenters requested that a new
paragraph (c) be added to clarify that there can be no delay in the
provision of FAPE while the SEA determines the payment source for IEP
services.
Discussion: Section 300.301 is a long-standing provision that was
included, without change, in the NPRM. The section merely clarifies
that each State may use other sources of support for meeting the
requirements of this part, in addition to State education funds or Part
B funds.
It would be appropriate to add a new paragraph to Sec. 300.301 to
clarify that there can be no delay in implementing a child's IEP in any
case in which the payment source for providing or paying for special
education and related services to the child is being determined.
Section 300.142 also addresses the role of the public agency in
ensuring that special education and related services are provided if a
noneducational agency fails to meet its responsibility and specifies
that services must be provided in a timely manner, while the payment
source for services is being determined. Further, because Secs. 300.342
and 300.343 also address the timely development and implementation of a
child's IEP, it is appropriate to include a reference to those sections
in Sec. 300.301.
Changes: A new paragraph (c) has been added to ensure, consistent
with the above discussion, that there is no delay in providing services
while the payment source is being determined.
Residential Placement (Sec. 300.302)
Comment: A few commenters requested that the regulations clarify
that costs for residential placements include the expenses incurred by
parents' travel to and from the program and the cost of telephone calls
to the placement. One commenter stated that the LEA should be
responsible for the educational costs if the system cannot meet the
needs of the student, and that other appropriate related service
agencies should assume the cost of care and treatment.
Discussion: Section 300.302 is a long-standing provision that
applies to placements that are made by public agencies in public and
private institutions for educational purposes. The note following this
section should be deleted in light of the general decision to remove
all notes from these final regulations.
[[Page 12574]]
A statement clarifying that costs for residential placements
include the expenses incurred by parents' travel to and from the
program and the cost of telephone calls to the placement is included in
the analysis of comments on the definition of ``special education''
(see Sec. 300.26). The regulations already address the respective
responsibilities of the SEA, LEAs, and noneducational agencies under
this part (see, for example, Secs. 300.121, 300.142, and 300.220).
Changes: The note has been deleted.
Proper Functioning of Hearing Aids (Sec. 300.303)
Comment: Comments received on Sec. 300.303 included requests to:
(1) clarify that LEAs cannot ensure proper functioning of hearing aids
unless students report non-working devices, especially students who are
in private or out-of-school placements (because it is beyond the LEAs'
capability to monitor whether devices are working); (2) provide that
LEAs are not responsible for hearing aids damaged by misuse within non-
school environments; (3) revise the section to address other AT
devices; (4) ensure the provision is consistently met, using qualified
persons who check aids on a regular basis, and (5) delete the note
because it reflects 20 year-old appropriations committee report
language, and, therefore, is no longer relevant. Other comments
expressed concern that the section adds unnecessary paperwork and an
unfair financial burden.
Discussion: Section 300.303 has been included in the Part B
regulations since they were initially published in 1977. The note
following Sec. 300.303, which incorporated language from a House
Committee Report on the 1978 appropriation bill, served as the basis
for the requirement in Sec. 300.303. That report referred to a study
done at that time that showed that up to one-third of the hearing aids
for public school children were malfunctioning; and the report stated
that the [Department] must ensure that hearing impaired school children
are receiving adequate professional assessment, follow-up, and
services.
Section 300.303 was added to address that Congressional directive,
and has been implemented since 1977. The Department has routinely
monitored Sec. 300.303; and when a violation has been identified,
appropriate corrective action has been taken. Although it is important
that Sec. 300.303 be retained in the final regulations, the note is no
longer relevant, and should be deleted.
Questions relating to damage of hearing aids are addressed in the
analysis of comments on the definitions of assistive technology devices
and services (see Secs. 300.5 and 300.6).
Changes: The note following Sec. 300.303 has been deleted.
Full Educational Opportunity Goal (Sec. 300.304)
Comment: Some commenters expressed support for Sec. 300.304. One
commenter stated that SEAs and LEAs should be required to improve the
general quality of education in ways that will benefit the disabled,
including submitting plans and timetables relating to such
improvements. Another commenter recommended updating the note to use
``people first'' language consistent with the IDEA, as amended in 1990,
and to make reference to quality education programs. Other commenters
recommended that the note be deleted.
Discussion: The requirement that there be a goal of ensuring full
educational opportunity to all children with disabilities predates the
FAPE requirement in Pub L. 94-142. The IDEA Amendments of 1997 are
sufficiently clear to not require an elaboration of the full
educational opportunity goal. Further, in light of the general tenor of
comments received on this section, and the comments and discussion
relating to the disposition of notes (see analysis of general
comments), it is clear that there would not be sufficient benefit
gained to justify updating or retaining the note.
Changes: The note following Sec. 300.304 has been deleted.
Program Options (Sec. 300.305)
Comment: Some commenters expressed support for this section,
stating that disabled children must have the same opportunities as
their nondisabled peers. One commenter stated that Secs. 300.305 and
300.306 go beyond the new statute and are made moot by the provisions
about including students in the regular curriculum as much as possible.
Another commenter requested that the section be amended to make it
clear that the list of items is not exhaustive.
Discussion: The provisions of Secs. 300.305 and 300.306 do not go
beyond the requirements of Part B of the Act. These are long-standing
regulatory provisions that were included, unchanged, in the NPRM, and
have been reinforced by the IDEA Amendments of 1997, through provisions
requiring that children with disabilities be included in the general
curriculum, and enabling them to meet State standards. The definition
of the term ``include'' in Sec. 300.13 makes it clear that the list of
programs and services is not exhaustive. Therefore, the note following
Sec. 300.305 is unnecessary.
Changes: The note following Sec. 300.305 has been deleted.
Nonacademic Services (Sec. 300.306)
Comment: One commenter stated that this section will require
documenting an array of non-academic and extracurricular services and
activities, and that it should be rephrased so that it will not lead to
more unnecessary paperwork. Another commenter requested that the
section be amended to clarify that participation in extracurricular
activities is not a component of a disabled child's program.
Discussion: Section 300.306, as well as Sec. 300.553 (``Nonacademic
settings'') are long-standing provisions that were included, without
change, in the NPRM. There is no basis for assuming that the provisions
in these sections will result in any unnecessary or increased
paperwork.
Changes: None.
Physical Education (Sec. 300.307)
Comment: Several commenters requested that the regulations clarify
that each public agency is responsible for making sure that special
physical education (PE) (including adapted PE) is provided by qualified
personnel, and not by classroom teachers, aides, related services
personnel, or other unqualified personnel. One commenter stated that
Sec. 300.307(b) should replace ``available to nondisabled children''
with the phrase ``to the extent available to all children.''
Discussion: Section 300.307(b), which provides that each child with
a disability has the opportunity to participate in the regular PE
program available to nondisabled children, is clear as written, and
there is no basis for making the change recommended by the commenters.
It is not necessary to amend Sec. 300.307 to state that specially
designed PE must be provided by qualified personnel because SEAs are
already required under Sec. 300.136 to determine what standards must be
met for all special education and related services personnel within the
State. The note following Sec. 300.307, which provided important
guidance in the original regulations under this part, is no longer
necessary, in light of the comments relating to the disposition of
notes.
Changes: The note following Sec. 300.307 has been deleted.
[[Page 12575]]
Assistive Technology (300.308)
Comment: Some commenters expressed support for Sec. 300.308,
stating that disabled students must have the tools they need to
succeed. A few commenters requested that a note be added to describe
what assistive technology (AT) devices would be available for children
with hearing impairments, including deafness. One of the commenters
requested listing specific devices (e.g., captioning, computer
software, FM systems, and hearing aids).
Discussion: The AT devices for children with hearing impairments
identified by the commenters are appropriate AT devices under this
part. However, it is not necessary to list such devices in these
regulations. Moreover, it would be inappropriate to list AT devices for
one disability category without listing such devices for other
disability categories. This position is consistent with the previously
stated position related to including examples of AT devices in these
regulations (see analysis of comments under Secs. 300.5 and 300.6).
Some examples of AT devices include word prediction software, adapted
keyboards, voice recognition and synthesis software, head pointers, and
enlarged print.
Under Section 504 of the Rehabilitation Act of 1973, 34 CFR Part
104, and the Title II of the Americans with Disabilities Act of 1990,
28 CFR Part 35, local educational agencies are responsible for
providing a free appropriate public education to qualified students
with disabilities who are within their jurisdiction. To the extent that
assistive technology devices are required to meet the obligation to
provide FAPE for an individual student, the devices must be provided at
no cost to the student or his or her parents or guardians.
Changes: No change has been made to this section in response to
these comments. See discussion under Sec. 300.6 regarding a change to
Sec. 300.308.
Extended School Year Services (Sec. 300.309)
Comment: A number of commenters expressed support for this
regulation. Because Notes 1 and 2 following Sec. 300.309 provide
important clarification regarding criteria for providing extended
school year (ESY) services, some commenters recommended that these
notes be added to the regulations.
Other commenters requested that Sec. 300.309 be deleted because it
has no statutory base, and could be interpreted to require ESY services
for all disabled children regardless of what the child's IEP indicates
is appropriate for the child. One comment noted that responsibility for
providing ESY services will be extremely costly and likely will require
large expenditures of local dollars.
Several commenters requested that both notes be deleted because
Note 1 is ambiguous and unnecessary since the regulation is
sufficiently clear, and Note 2 is not appropriate because all children
regress in the summer.
Numerous comments were received regarding the standards referenced
in Note 2 that States can establish for use in determining a child's
eligibility for ESY services. One comment urged the adoption of a
Federal standard and formula for determining unacceptable rates of
recoupment. One recommendation was that while Note 2 should be added to
the regulation, it should be changed to clarify that the list of
factors is not exhaustive.
Another comment stated that ``regression/recoupment'' is a minimum
standard that should be used in determining a child's eligibility for
ESY services. Other commenters indicated that regression/recoupment is
too narrow a standard, and recommended adding to the regulations
additional criteria that courts have used to determine eligibility
(e.g., whether the child has emerging skills, the nature or severity of
the disability, and special circumstances, such as prolonged absence or
other serious blocks to learning progress, which in the view of the IEP
team could be addressed by ESY services).
Another comment recommended that the list of factors be revised to
specify ``evidence or likely indication of significant regression and
recoupment.'' One comment recommended that the reference to
``predictive data'' be expanded to ``predictive data and other
information based on the opinion of parents and professionals.''
Another comment stated that, although the regulation should
incorporate Note 2 and permit States to establish standards for
determining ESY eligibility, public agencies also should be required to
make these standards available to parents either at IEP meetings or on
request.
One comment recommended deleting Note 2 because it is too narrow
and inconsistent with case law. According to the comment, the ESY
standard should be flexible and permit consideration of a variety of
factors (e.g., whether the child's current level of performance
indicates that the child will not make ``meaningful progress'' during
the regular school year in the general curriculum or in other areas
pertinent to child's disability-related needs).
Several comments recommended other specific changes to
Sec. 300.309, such as the following: (1) Section 300.309(a)(2) should
be revised to state that the determination of whether a child needs ESY
services, including the type and amount of services, must be made by
the IEP team and should be specified in the child's IEP; (2) the
regulation should specify a timeline for determining eligibility for
ESY services to enable the parents to take appropriate steps to
challenge the denial of services; (3) the regulation should clarify
whether ESY services are limited only to summer programming or to other
breaks in the school calendar; and (4) no one factor can be the sole
criterion for determining whether a child receives ESY services.
Another comment requested that clarification be added to specify
that ESY services must be provided in the least restrictive
environment, and that to ensure that this occurs, students with
disabilities may have to receive ESY services in noneducational
settings.
One comment requested that a note be added to clarify that the
process for determining the length of a preschool child's school year
must be individualized and described in the child's IEP/IFSP, and added
that the decision is not necessarily based on school-aged ESY practices
or formulas, which may be inappropriate for younger children, and that
if a child turns three during the summer, the child should receive ESY
services if specified in the IEP or IFSP.
Other comments requested that the regulations: add a new paragraph
(c) to address the needs of disabled children enrolled in private
facilities and include additional guidance relating to an LEA's
obligation to conduct necessary evaluations during the summer when a
child arrives in an LEA in the summer with an IEP from another LEA that
requires ESY services.
Discussion: The regulation and notes related to ESY services were
not intended to create new legal standards, but to codify well-
established case law in this area (and, thus, ensure that the
requirements are all in one place). Since the requirement to provide
ESY services to children with disabilities under this part who require
such services in order to receive FAPE is not a new requirement, but
merely reflects the longstanding interpretation of the IDEA by the
courts and the Department, including it in these regulations will not
impose any additional financial burden on school districts.
On reflection and in view of the comments, it has been determined
that
[[Page 12576]]
this regulation should be retained, and that Note 1 following
Sec. 300.309, with some modifications, should be incorporated into the
text of the regulation. Section 300.309 and accompanying notes clarify
the obligations of public agencies to ensure that students with
disabilities who require ESY services in order to receive FAPE have
necessary services available to them, and that individualized
determinations about each disabled child's need for ESY services are
made through the IEP process. The right of an individual disabled child
to ESY services is based on that child's entitlement to FAPE. Some
disabled children may not receive FAPE unless they receive necessary
services during time periods when other children, both disabled and
nondisabled, normally would not be served. Both parents and educators
have raised issues for many years about how determinations about ESY
services can be made consistent with the requirements of Part B.
The clarification provided in Note 1 in the NPRM is essential to
ensuring that public agencies do not limit eligibility for ESY services
to children in particular disability categories, or the duration of
these necessary services. Since these issues are key to ensuring that
each disabled child who requires ESY services receives necessary
services in order to receive FAPE, this concept from Note 1 should be
incorporated into this regulation.
In the past, the Department has declined to establish standards for
States to use in determining whether disabled children should receive
ESY services. Instead, the Department has said that States may
establish State standards for use in making these determinations so
long as the State's standards ensure that FAPE is provided consistent
with the individually-oriented focus of the Act and the other
requirements of Part B and do not limit eligibility for ESY services to
children in particular disability categories. These regulations
continue this approach.
Within the broad constraints of ensuring FAPE, States should have
flexibility in determining eligibility for ESY services, and a Federal
standard for determining eligibility for ESY services is not needed. As
is true for other decisions regarding types and amounts of services to
be provided to disabled children under Part B, individual
determinations must be made in accordance with the IEP and placement
requirements in Part B.
Regarding State standards for determining eligibility for ESY
services, Note 2 was not intended to provide an exhaustive list of such
standards. Rather, the examples of standards that were included in Note
2 (e.g., likelihood of regression, slow recoupment, and predictive data
based on the opinion of professionals) are derived from well-
established judicial precedents and have formed the basis for many
standards that States have used in making these determinations. See,
e.g., Johnson v. Bixby ISD 4, 921 F.2d 1022 (10th Cir. 1990); Crawford
v. Pittman, 708 F.2d 1028 (5th Cir. 1983); GARC v. McDaniel, 716 F.2d
1565 (11th Cir. 1983). It also should be pointed out that nothing in
this part is intended to limit the ability of States to use variations
of any or all of the standards listed in Note 2. Whatever standard a
State uses must be consistent with the individually-oriented focus of
the Act and may not constitute a limitation on eligibility for ESY
services to children in particular disability categories.
To ensure that children with disabilities who require ESY services
receive the services that they need, a high priority is being placed on
monitoring States' implementation of this regulation in the next
several years to ensure that State standards are not being applied in a
manner that denies children with disabilities who require ESY services
in order to receive FAPE access to necessary services. However, to give
States needed flexibility in this area, the regulations should clarify
that States may establish their own standards for determining
eligibility for ESY services consistent with the requirements of this
part.
To respond to a concern expressed in the comments that this
regulation could require the provision of ESY services to every
disabled child, regardless of individual need, paragraph (a)(2) has
been revised to make clear that ESY services must be provided only if a
child's IEP team determines, on an individual basis, in accordance with
Secs. 300.340-300.350, that the services are necessary for the
provision of FAPE to the child.
Although it is important that States inform parents about standards
for determining eligibility for ESY services, a regulatory change is
not necessary. Since this matter is relevant to the provision of FAPE,
it already would be included in the information contained in the
written prior notice to parents provided under this part for children
for whom ESY services are an issue.
There is no need to incorporate the IEP team's responsibility to
specify the types and amount of ESY services. Section 300.309(a)(2)
already specifies that the determination of whether a child with a
disability needs ESY services must be made on an individual basis by
the IEP team in accordance with Secs. 300.340-300.350. These IEP
requirements include specifying the types and amounts of services
consistent with the individual disabled child's right to FAPE.
The determination of whether an individual disabled child needs ESY
services must be made by the participants on the child's IEP team. In
most cases, a multi-factored determination would be appropriate, but
for some children, it may be appropriate to make the determination of
whether the child is eligible for ESY services based only on one
criterion or factor. In all instances, the child's IEP team must decide
the appropriate manner for determining whether a child is eligible for
ESY services in accordance with applicable State standards and Part B
requirements. Therefore, no requirements have been added to the
regulation regarding this issue.
There is no need to specify a timeline for determining whether a
child should receive ESY services. Public agencies are expected to
ensure that these determinations are made in a timely manner so that
children with disabilities who require ESY services in order to receive
FAPE can receive the necessary services.
No further clarification has been provided regarding the times when
ESY services can be offered. Section 300.309(b)(1)(i) specifies that
ESY services are provided to a child with a disability ``[b]eyond the
normal school year of the public agency.'' For most public agencies,
the normal school year is 180 school days. Typically, ESY services
would be provided during the summer months. However, there is nothing
in the definition of ESY services in Sec. 300.309(b) that would limit
the ability of a public agency to provide ESY services to a student
with a disability during times other than the summer, when school is
not in session, if the IEP team determines that the child requires ESY
services during these time periods in order to receive FAPE.
There is no need to provide clarification regarding the comment
that public agencies may wish to use different standards in determining
eligibility of preschool-aged children with disabilities for ESY
services from those used for school-aged children. Since Part B does
not prescribe standards for determining eligibility for ESY services,
regardless of the child's age, the issue of whether a State should
establish a different standard for school-aged and preschool-aged
children is a matter for State and local educational authorities to
decide.
[[Page 12577]]
The IEP or IFSP will specify whether services must be initiated on
the child's third birthday for children with disabilities who
transition from the Part C to the Part B program, if the child turns
three during the summer. This means that ESY services would be provided
in the summer if the IEP or IFSP of a child with a disability specifies
that the child must receive ESY services during the summer. In any
case, the IEP or IFSP must be developed and implemented in accordance
with the terms of those documents by the child's third birthday. These
responsibilities are clarified elsewhere in these regulations.
No additional clarification is being provided in this portion of
the regulations as to whether parentally-placed disabled students can
receive ESY services. As is true for determinations regarding services
for children with disabilities placed in private schools by their
parents, determinations regarding the services to be provided,
including the types and amounts of such services and which children
will be served, are made through a process of consultation between
representatives of public agencies and representatives of students
enrolled by their parents in private schools. Through consultation, if
a determination is made that ESY services are one of the services that
a public agency will offer one or more of its parentally-placed
disabled children, Part B funds could be used for this purpose.
No regulatory change has been made regarding the application of LRE
requirements to ESY services. While ESY services must be provided in
the LRE, public agencies are not required to create new programs as a
means of providing ESY services to students with disabilities in
integrated settings if the public agency does not provide services at
that time for its nondisabled children. However, consistent with its
obligation to ensure that each disabled child receives necessary ESY
services in order to receive FAPE, nothing in this part would prohibit
a public agency from providing ESY services to an individual disabled
student in a noneducational setting if the student's IEP team
determines that the student could receive necessary ESY services in
that setting. No further clarification is needed regarding the comment
about requirements for evaluating students who move into LEAs during
the summer to determine eligibility for ESY services. Requirements for
child find are addressed elsewhere in these regulations.
Changes: Consistent with the above discussion, paragraph (a)(2) of
Sec. 300.309 has been revised, and a new paragraph (a)(3) has been
added to this section to specify that (1) ESY services must be provided
only if a child's IEP team determines the services are necessary for
the provision of FAPE to the child; and (2) Public agencies may not
limit eligibility for ESY services based on category of disability, and
may not unilaterally limit types and amounts of ESY services. Notes 1
and 2 have been removed.
FAPE Requirements for Students With Disabilities in Adult Prisons
(Sec. 300.311)
Comment: Several commenters requested that the regulation include a
definition of ``bona fide security or compelling penological interest
that cannot otherwise be accommodated.'' Several commenters requested a
definition that would clarify that this exception is to be used only in
unique situations. These commenters requested that the definition
specifically exclude routine issues of prison administration and
convenience, cost-reduction measures, and policies to promote
discipline or rehabilitation through systematic withholding of
educational services which are otherwise required. Another commenter
requested that the terms be defined to include prudent correctional
administration, and physical or mental health determinations by prison
health officials.
One commenter stated that the regulation should include guidance as
to when an IEP or placement can be modified under the stated exception
for modifications. Another commenter requested that the regulations
clarify that modifications to IEP or placement may only be made by the
IEP team and these changes are covered by the notice requirements of
the Act.
Another commenter opposed services to students alleged to have
committed heinous crimes and requested that a free appropriate public
education be limited to those students who would otherwise be denied
access to education services by virtue of their incarceration.
One commenter requested a definition of the term ``last educational
placement'' to clarify that this means a public or private school
placement.
Another commenter requested that a student's ``potential''
eligibility for early release be considered in determining eligibility
for transition services.
Discussion: The requirement that the student's IEP team make an
individualized determination regarding modifications to IEP or
placement are clearly stated in the regulations. This requirement
ensures that a team of professionals with knowledge about the student
will be able to weigh the request of the State and make an
individualized determination as to whether the State has demonstrated a
bona fide security or compelling penological interest. In addition, the
IEP team would need to consider possible accommodations of these
interests and only decide to modify the IEP or placement in situations
where accommodations are not possible. This provision also allows the
State to address any issues specific to persons alleged of committing
heinous crimes.
This provision does not impact an individual's eligibility for
services, rather it allows the IEP team to make temporary modifications
to the IEP or placement. These modifications are to be reviewed
whenever there is a change in the State's bona fide security or
compelling penological interest and at least on a yearly basis when the
IEP is reviewed.
A definition of the terms ``bona fide security or compelling
penological interest'' is not appropriate, given the individualized
nature of the determination and the countless variables that may impact
on the determination. Further, a State's interest in not spending any
funds on the provision of special education and related services or in
administrative convenience will not rise to the level of a compelling
penological interest that cannot otherwise be accommodated, because
States must accommodate the costs and administrative requirements of
educating all eligible individuals with disabilities.
Further, since a modification to the IEP or placement is a change
in the placement or in the provision of a free appropriate public
education, the notice requirements under the Act would clearly be
invoked.
There is no need to define the term ``last educational placement''
because the term is sufficiently clear.
Finally, there is no need to further clarify eligibility for
transition services. Since consideration for transition services is
also part of the IEP process, eligibility determinations should be
addressed by the IEP team based upon the State's sentencing and parole
policies, which may include potential eligibility for early release.
Changes: None.
Children With Disabilities in Public Charter Schools (Sec. 300.312)
See comments, discussion, and changes under Sec. 300.18.
[[Page 12578]]
Children Experiencing Developmental Delays (Sec. 300.313)
See comments, discussion, and changes under Sec. 300.7.
Initial Evaluations (Sec. 300.320)
Comment: A few commenters requested that the regulation be amended
to require that initial evaluations be comprehensive so that each child
is tested in all areas of possible disability, not just areas of
suspected disability (e.g., a child who is having behavior problems may
be acting out of frustration over unrecognized learning disabilities).
Another commenter expressed concern that terms such as ``in all areas
of suspected disability'' and the requirement to conduct evaluations in
the native language do not appear in the NPRM, although they were in
prior regulation and in Appendix A. Another commenter recommended that
at least three diagnosticians from different disciplines actually
evaluate a child, and added that this helps ensure that the evaluation
is broad-based, nondiscriminatory, and relies on more than one method
to determine eligibility.
One commenter recommended that Sec. 300.320(a) repeat the language
of the statute (i.e., that the LEA ``shall conduct'' initial
evaluations, rather than ``shall ensure that initial evaluations are
conducted''); that the reference to applicable sections under
Secs. 300.530-300.536 be revised; and that other technical and
conforming changes be made. A few commenters recommended amending
Sec. 300.320(b)(2) to add a provision requiring the IEP team to provide
copies of all evaluations to the parents and all team members
sufficiently in advance of the meeting at which they will be reviewed
so that all have time to review the results prior to the meeting.
Discussion: The general requirement to conduct evaluations and
reevaluations was added to Subpart C (Secs. 300.320-300.321) in the
NPRM to sequentially place evaluations as a preliminary step in
determining a child's eligibility before convening an IEP team to
develop the child's IEP. However, the specific evaluation requirements
are included in Subpart E (Secs. 300.530-300.536). Those requirements,
especially the ones in Sec. 300.532, are long-standing provisions that
require the evaluations to be multifactored and administered in the
child's native language or other mode of communication, unless it is
clearly not feasible to do so. Section 300.532(g) makes clear that the
evaluation must include ``all areas related to the suspected
disability.''
If public agencies are in full compliance with these evaluation
requirements, the initial evaluations will be sufficiently
comprehensive to identify any disability that an individual child may
have, including any disability that was not initially suspected.
Further, the failure to provide such an evaluation is an implementation
issue and not a regulatory issue. Therefore, no change is needed in
this provision.
Section 300.320(a) of the NPRM states that each public agency
``shall ensure that'' a full and individual evaluation is conducted for
each child with a disability. It is not necessary to substitute ``shall
conduct'' for the language in the NPRM. The term used in the NPRM and
in these final regulations places the burden squarely on the public
agency to implement the evaluation requirements either directly, by
using public agency staff to conduct the evaluations, or by contracting
with other agencies or individuals to do so.
Technical and conforming changes that have been recommended should
be reflected in these final regulations to the extent that they are
determined to be relevant. For example, contrary to the commenter's
recommendation, Sec. 300.533 (determination of needed evaluation data)
may be germane to initial evaluations as well as reevaluations, and,
therefore should be included in the listed sections under
Sec. 300.320(b)(ii).
To the extent feasible, the results of evaluations conducted under
this part should be provided to parents and appropriate school
personnel before any meeting to discuss the identification, evaluation,
or educational placement of the child, or the provision of FAPE to the
child. However, this is an implementation matter that should be left to
the discretion of individual public agencies. In administering the Part
B program over the past 22 years, concerns about evaluation teams not
having timely access to evaluation results have seldom been raised with
the Department.
Changes: The authority citation for the section has been revised to
add a reference to section 614(c) of the Act.
Reevaluations (Sec. 300.321)
Comment: Some commenters expressed support for Sec. 300.321, and
stated that the importance of sharing the evaluation information with
the IEP team is vital. One commenter recommended that a wording change
be made in Sec. 300.321(b); that the reference to applicable sections
under Secs. 300.530-300.536 be revised; and that other technical and
conforming changes be made.
Discussion: Technical and conforming changes as recommended by the
commenter should be reflected in these final regulations, if relevant.
Changes: Paragraph (a) of Sec. 300.321 has been amended to delete
``Secs. 300.530-300.536'' from the list of applicable sections and
replace it with ``Sec. 300.536.'' Paragraph (b) has been revised to
replace the term ``used'' with ``addressed.''
Definitions Related to IEPs (Sec. 300.340)
Comment: None.
Discussion: To clarify that IEPs are developed, reviewed, and
revised at IEP meetings, a change would be made to paragraph (a) of
this section. However, as the Committee reports to the Act noted:
Specific day to day adjustments in instructional methods and
approaches that are made by either a regular or special education
teacher to assist a disabled child to achieve his or her annual goals
would not normally require action by the child's IEP team. However, if
changes are contemplated in the child's measurable annual goals,
benchmarks, or short-term objectives, or in any of the services or
program modifications, or other components described in the child's
IEP, the LEA must ensure that the child's IEP team is reconvened in a
timely manner to address those changes. (S. Rep. No. 105-17, p. 5
(1997); H. Rep. No. 105-95, pp. 100-101 (1997))
SEA Responsibility for IEPs(Sec. 300.341)
Comment: A few commenters stated that the manner in which the term
``that agency'' is used in Sec. 300.341 is confusing because it is not
always clear whether the term is applying to the SEA or to other
agencies described in the section and in Note 1, and requested that
appropriate changes be made. One commenter stated that additional
language is needed in the section to expand on the State's ultimate
obligation to ensure district compliance with all IDEA requirements.
Several comments were received relating to Sec. 300.341(b). One
commenter stated that ``religiously-affiliated'' may be broader than
parochial, but it inadvertently excludes private schools with a
religious focus that are not affiliated but rather are freestanding,
and recommended using ``religiously-oriented'' instead. Another
commenter recommended using only ``private school,'' and deleting
``religiously affiliated,'' stating that there is no basis for using
that term.
[[Page 12579]]
Some commenters stated that the term ``IEP'' has an explicit
meaning in IDEA--as an inherent component of FAPE, and recommended that
another term other than ``IEP'' be used with respect to children in
private schools, who are not entitled to FAPE. Another commenter
recommended that the statement requiring that an IEP is developed and
implemented be revised to include a reference to the proportionate
expenditure requirements in Subpart D.
One commenter recommended that the statement in
Sec. 300.341(b)(2)(ii) regarding ``special education or related
services'' be amended to replace ``or'' with ``and'' in order to avoid
any implication that a child may receive only related services. Another
commenter suggested deleting the entire reference to related services.
One commenter recommended requiring that (1) any nonpublic school
that is licensed by the SEA or receives any other tax or benefit from
the State must develop an IEP for each disabled student, and (2) LEAs
provide the student with a supplemental IEP showing the additional
services that the LEA will provide.
Discussion: The language of this section, and especially the note,
should be modified to ensure that the term ``SEA'' is used
consistently, to avoid the confusion identified by the commenters. This
can best be accomplished, and the section strengthened, by moving the
substance of the note into the text of the regulation. The comment
related to ensuring compliance with all provisions of IDEA is addressed
by Sec. 300.600, which provides that the SEA is responsible for
ensuring such compliance.
In drafting the NPRM the term ``religiously-affiliated'' was
adopted instead of the statutory term ``parochial,'' based on the
assumption that Congress intended that all religious schools be
included, not just those organized on a parish basis. The intent was
for the broadest possible coverage. However, in light of the comment
related to this matter, the term ``religiously-affiliated'' does not
account for other religious schools that are not affiliated. The term
should be replaced with the more comprehensive term ``religious
schools.'' That term will be used throughout these regulations to
replace ``religiously-affiliated.''
Another term other than ``IEP'' should be used with respect to
disabled children who are enrolled by their parents in private schools.
As noted by the commenters, (1) ``IEP'' is an inherent component of,
and an explicit term used in, the statutory definition of ``FAPE'', and
(2) the private school provisions in the IDEA Amendments of 1997 and
Sec. 300.454(a) make it clear that these children have no individual
right to receive some or all special education and related services
that they would be entitled to if enrolled in a public school.
Therefore, if it is determined, in accordance with Sec. 300.454(b)
(Consultation with representatives of private school children with
disabilities), that a given child is to receive special education and
related services under this part, the document used to denote those
services should have a different name. The term ``services plan'' has
been adopted as an appropriate term for use with these children.
Further, in light of the comments related to this section, and the
discussion in the preceding paragraph, all provisions related to
parentally-placed children in religious or other private schools
(including the provisions in proposed Secs. 300.341(b)(2) and 300.350)
should be incorporated, in revised form, under Subpart D (Children in
Private Schools).
The statute does not require a private school to unilaterally
develop an IEP for each disabled child enrolled in the school, or to
require a supplemental IEP for additional services that the LEA will
provide.
Changes: The name of Sec. 300.341 has been changed to
``Responsibility of SEA and other public agencies for IEPs.'' The
paragraph headings have been deleted, and Sec. 300.341 has been revised
consistent with provisions in Subpart D regarding parentally-placed
children with disabilities in religious or other private schools. A new
paragraph (b) incorporates the substance of the note following
Sec. 300.341, to clarify that the provisions of the section (related to
public agencies) also apply to the SEA, if the SEA provides direct
services under Sec. 300.370(a) and (b)(1). The note has been deleted.
The section has been further revised by making other technical and
conforming changes. A new paragraph has been added to Sec. 300.452(b)
related to the SEA's responsibility for eligible children enrolled in
religious schools.
When IEPs Must Be in Effect (Sec. 300.342)
Comment: Some commenters stated that, as used in Sec. 300.342(b)(2)
and Note 1, the terms ``as soon as possible'' and ``undue delay'' are
not meaningful and should be defined or clarified. The commenters
recommended that an outside timeline (e.g., 15 days following the IEP
meetings described in Sec. 300.343) be established for implementing
IEPs. Other commenters requested that Note 1 be deleted. A few
commenters indicated that the statement in Note 1 (regarding services
not being provided during the summer or a vacation period unless the
child requires such services) does not adequately identify LEAs'
obligations.
Discussion: It would not be appropriate to add an outside timeline
under Sec. 300.342(b) for implementing IEPs, especially when there is
not a specific statutory basis to do so. However, with very limited
exceptions, IEPs for most children with disabilities should be
implemented without undue delay following the IEP meetings described in
Sec. 300.342(b)(2).
There may be exceptions in certain situations. It may be
appropriate to have a short delay (e.g., (1) when the IEP meetings
occur at the end of the school year or during the summer, and the IEP
team determines that the child does not need special education and
related services until the next school year begins); or (2) when there
are circumstances that require a short delay in the provision of
services (e.g., finding a qualified service provider, or making
transportation arrangements for the child).
If it is determined, through the monitoring efforts of the
Department, that there is a pattern of practice within a given State of
not making services available within a reasonable period of time (e.g.,
within a week or two following the meetings described in
Sec. 300.343(b)), this could raise a question as to whether the State
is in compliance with that provision, unless one of the exceptions
noted above applies.
Changes: Paragraph (b) of this section is amended (consistent with
the discussion under Sec. 300.344(a)(2) and (3) of this Analysis) to
require that each public agency must ensure that (1) a child's IEP is
accessible to each regular education teacher, special education
teacher, related services provider and other service provider who is
responsible for its implementation; and (2) each of the child's
teachers and providers is informed of his or her specific
responsibilities related to implementing the child's IEP, and of the
specific accommodations, modifications, and supported that must be
provided for the child in accordance with the IEP. Note 1 has been
deleted. Note 2 (related to a 1997 date certain for certain
requirements regarding students with disabilities incarcerated in adult
prisons) also has been deleted. Subject headings have been added to
each paragraph in the section.
Comment: Several commenters expressed concern about Sec. 300.342(c)
and Note 3 (related to using an IFSP for a child aged 3 through 5), and
some of
[[Page 12580]]
the commenters recommended deleting paragraph (c)(2) and the reference
to it in Note 3. The commenters stated (for example) that (1) IFSPs
should be used for children under age 3, and IEPs for older children,
and parents should not have a choice; (2) an IFSP may not be
appropriate in the educational setting; (3) the requirement is
inconsistent with OSEP policy letters; (4) the use of an IFSP or IEP
requires only the two factors in Sec. 300.342(c)(1) (i.e., it is
consistent with State policy, and agreed to by the parents and the
agency); and (5) because Note 3 and the preamble to the NPRM indicate a
clear preference for an IEP rather than IFSP, a specific rationale
should be given.
One commenter requested that Note 3, or Appendix A, be amended to
underscore that special care must be taken by LEAs in agreeing to
continue children's IFSPs when they become eligible for an IEP--
especially if the IFSP does not have an educational component, because
research has shown a significant positive difference in school
readiness for kindergarten when children whose (prekindergarten)
program included an educational component, as compared to those who
attend custodial day care without an educational component. Another
commenter requested that Sec. 300.342(c) be revised to allow use of
IFSPs for children aged 3 and above without meeting the requirements in
paragraph (b)(2).
Discussion: It is important to retain in these final regulations
the general thrust of Sec. 300.342(c) from the NPRM (related to
requiring parental consent to using an IFSP in lieu of an IEP for a
child who moves from the Early Intervention Program under Part C of the
Act to preschool services under Part B of the Act). As a result of the
IDEA Amendments of 1997, there have been significant changes in the
statute, including an increased emphasis on the participation of
children with disabilities in the general curriculum, and on ensuring
better results for children with disabilities. Because of the
importance of the IEP as the statutory vehicle for ensuring FAPE to a
child with a disability, paragraph (c)(2) of this section provides that
the parents' agreement to use an IFSP for the child instead of an IEP
requires written informed consent by the parents that is based on an
explanation of the differences between an IFSP and an IEP.
As noted by at least one commenter, research has shown a
significant positive difference in school readiness for kindergarten if
children's ``prekindergarten'' programs included an educational
component, compared to those who attend custodial day care without an
educational component. In addition, the provisions related to the IFSP
under Part C can generally be replicated under Part B. Because of the
definition of ``FAPE,'' services that are determined necessary for a
child to benefit from special education must be provided without fees
and without cost to the parents.
Changes: Note 3 has been deleted.
Comment: Some commenters expressed support for Sec. 300.342(d) in
the NPRM (i.e., that all IEPs in effect on July 1, 1998 must meet the
new requirements in Secs. 300.340-300.351), stating that public
agencies have had since June 4, 1997 to prepare for changes in the IEP
requirements, many of which have already been in use in some agencies.
A few of the commenters requested that all IEPs developed during the
spring and summer of 1998 be in full compliance with the new
requirements.
A large number of commenters expressed concern about
Sec. 300.342(d), stating (for example) that it (1) is inconsistent with
section 201(a)(2)(A) of the Act; (2) will result in massive national
noncompliance and public financial liability; and (3) force pro forma
IEPs that will result in frustration and resentment on the part of
parents and local providers. The commenters requested that the
requirements be changed to provide that IEPs written on or after July
1, 1998 must meet the new requirements.
Discussion: It is appropriate to amend Sec. 300.342(d) to provide
that IEPs developed, reviewed, or revised on or after July 1, 1998 must
comply with the requirements in section 614(d) of the Act and
Secs. 300.340-300.350 of these final regulations. While we commend the
many public agencies that began as soon as the IDEA Amendments of 1997
was enacted to implement the new statutory requirements and already
have in place IEPs that meet these requirements, other public agencies
argued compellingly that they simply did not have the wherewithal to
ensure that, on July 1, 1998, all IEPs would fully comply with the new
IEP requirements, and that a phase-in period should be adopted in which
the anniversary date for each child's IEP meeting would be the basis
for revising the child's IEP to comply with the new requirements.
Requiring IEPs developed on or after July 1, 1998 to meet the new
requirements should result in more meaningful IEPs that focus on
effective implementation, consistent with the purposes of the IDEA
Amendments of 1997. At the same time, public agencies are strongly
encouraged to grant any reasonable requests from parents for an IEP
meeting to address the new IEP provisions. Public agencies are also
encouraged to inform parents of the important changes resulting from
the new IEP requirements so that they may be effective partners in the
education of their children.
Changes: Section 300.342(d) has been revised to state that all IEPs
developed, reviewed, or revised on or after July 1, 1998 must meet the
requirements of Secs. 300.340-300.350.
IEP Meetings (Sec. 300.343)
Comment: One commenter stated that, as written, Sec. 300.343(b)(1)
implies that an LEA is required to make an offer of services in
accordance with an IEP whether or not the child qualifies (i.e., before
the child is evaluated), and requested clarification of the provision.
Other commenters stated that the requirement should begin with
referral, not consent, and ``services'' should be referenced as
``special education and related services.''
Some commenters expressed support for the 30 day timeline in
Sec. 300.343(b)(2) (i.e., that an IEP meeting is conducted within 30
days of determining that a child needs special education). A few
commenters requested changing the provision to 30 ``school days.'' One
commenter recommended amending the provision to recognize that regular
education teachers are not available in the summer, because to the
extent participation of a regular education teacher is required at the
IEP meeting, the meeting would have to wait until teachers return.
A number of comments were received relating to Sec. 300.343(c)(1)
(Review and revision of IEPs). One commenter requested that paragraph
(c)(1) be amended to clarify that a child's IEP is reviewed
periodically if warranted, or requested by the child's parent or
teacher, and to include additional language related to determining if
the child is making meaningful progress toward attaining the goals and
standards for all children as well as goals and short term objectives
or benchmarks. Other commenters recommended requiring that a review
meeting be held when requested by an IEP team member, and that LEAs
honor ``reasonable'' requests from parents for timely IEP review
meetings.
One commenter requested amending paragraph (c)(2)(i) (related to
revising a child's IEP to address any lack of progress in the annual
goals) by adding benchmarks or short term objectives to the statement
related to annual goals. A
[[Page 12581]]
few commenters recommended deleting the reference to ``Other matters''
in Sec. 300.343(c)(2)(v) as the language is redundant and confusing.
A few commenters requested that a new Sec. 300.343(d) be added to
incorporate the statutory requirement in section 614(c)(4) (i.e.,
procedures to follow when the IEP team determines that no additional
data are needed to determine whether the child continues to be a child
with a disability). One commenter felt that an additional note should
be added to encourage combining the eligibility meeting with the
initial IEP meeting.
Discussion: There is potential for confusion with the language in
Sec. 300.343(b)(1) of the NPRM regarding whether a child must be
evaluated before the offer of services is made. It also would be more
appropriate to refer to ``special education and related services''
rather than referring simply to ``services.''
While the basic position taken in the NPRM with respect to
Sec. 300.343(b)(1) has been retained (i.e., an offer of services will
be made to parents within a reasonable period of time from the public
agency's receipt of parent consent to initial evaluation), the concept
of ``making services available'' to a child with a disability seems
more relevant to these final regulations than ``offer of services'' in
ensuring that FAPE is available to a child with a disability in a
timely manner.
Therefore, the regulations should be amended to clarify that,
within a reasonable period of time following consent to an initial
evaluation, the evaluation is conducted; and if the child is determined
eligible under this part, special education and related services are
made available to the child, in accordance with an IEP.
It would not be appropriate to change the reference to
Sec. 300.343(b)(1) from ``parent consent'' to ``referral'' because
informed consent of the parents is a necessary step in ensuring that
the evaluation will be conducted.
It also would not be appropriate to change the 30 day timeline in
Sec. 300.343(b)(2) to 30 ``school days.'' That timeline is a long-
standing provision that has been appropriately implemented since the
inception of the regulations under this part, and there is no basis to
make such a change.
A provision is not necessary to clarify that public agencies will
honor ``reasonable'' requests by parents for a meeting to review their
child's IEP. Public agencies are required under the statute and these
final regulations to be responsive to parental requests for such
reviews. If a public agency believes that the frequency or nature of
the parents' requests for such reviews is unreasonable, the agency may
(consistent with the prior notice requirements in Sec. 300.503) refuse
to conduct such a review, and inform the parents of their right to
request a due process hearing under Sec. 300.507. It should be noted,
however, that as a general matter, when a child is not making
meaningful progress toward attaining goals and standards applicable to
all children, it would be appropriate to reconvene the IEP team to
review the progress.
It is inappropriate and unnecessary to add ``benchmarks or short-
term objectives'' to the statement on annual goals in
Sec. 300.343(c)(2)(i). The language in that paragraph, which
incorporates the language from the statute, refers to ``the annual
goals described in Sec. 300.347(a).'' Section 300.347(a) states that
each child's IEP must include ``A statement of measurable annual goals,
including benchmarks or short-term objectives * * *''. Therefore,
benchmarks or short-term objectives are inherent in
Sec. 300.343(c)(2)(i), and do not need to be repeated.
It is not necessary to include a note encouraging public agencies
to combine the eligibility and initial IEP meetings. This is an
individual State option that many States have unilaterally elected to
follow in implementing Part B of the Act over the past 22 years, while
other States have determined that the better course is to hold separate
meetings.
Changes: The title of Sec. 300.343(b) has been changed from
``Timelines'' to ``Initial IEPs; provision of services.'' Paragraph
(b)(1) has been amended to (1) clarify that, within a reasonable period
of time from the agency's receipt of consent to an initial evaluation,
``the evaluation is conducted'', and (2) clarify the timing issue by
replacing ``offer of services * * * is made to parents'' with ``special
education and related services are made available to the child * * *''.
Paragraph (b)(2) has been changed by replacing the phrase ``In meeting
the timeline in paragraph (b)(1)'' with ``In meeting the requirement in
paragraph (b)(1).'' In the title to Sec. 300.343(c), the term ``IEP''
has been changed to ``IEPs.'' Paragraph (c)(2)(ii) has been revised to
correctly cite Sec. 300.536. The authority cite has been changed from
``1414(d)(3)'' to ``1414(d)(4)(A).''
Comment: A number of comments were received on the note following
proposed Sec. 300.343 (regarding the offer of services within 60 days
of parent consent to initial evaluation). Some commenters expressed
support for the 60 day time frame, stating that (1) many LEAs
experience significant delays in completing evaluations, especially
during the summer, and delay providing FAPE for a very long time, and
(2) if LEAs respond to requests for evaluation in a timely manner, 60
days is reasonable. Many of these commenters recommended that the note
be added to the regulation.
Other commenters recommended deleting the 60 day timetable in the
note, stating that (1) the timeline is not a reflection of the statute,
and Federal guidance is not necessary because most States have set
reasonable, child-friendly timetables for the initial provision of
services; (2) it is unrealistic, unreasonable, and ambiguous (3) it
would override time frames set by States, (4) the Department could
continue to monitor the issue of reasonableness in each State without
the timeline; and (5) while IEPs generally can be implemented within 60
days, this non-statutory requirement should not become the standard for
all cases.
Some commenters recommended changing the length of the timelines
(e.g., to 75 days, 80 days, 90 days, or 120 days), or using the
designation of ``school days'' or ``operational days,'' or adding a
caveat exempting school breaks and holidays from the 60 day timeline.
One commenter requested a clarification of timelines when the initial
evaluation occurs with less than sixty days remaining in the school
year.
Discussion: While it is critical that each public agency make FAPE
available in accordance with an IEP within a reasonable period of time
after the agency's receipt of parent consent to an initial evaluation,
imposing specific timelines could result in the timelines being
implemented only in a compliance sense, without regard to meeting the
spirit of the requirement, and this may not always serve the best
interests of the children involved.
Moreover, as indicated by some of the commenters, most States are
able to meet a timeline of 60 days. The Department considers this to be
reasonable, and will not make a finding of noncompliance when
monitoring a State that is meeting the 60 day timeline for most
children.
It is recognized, however, that it may, for some children, take
longer, and for some, it could be done in a shorter period of time.
Therefore, the note following Sec. 300.343 should be deleted, and no
timelines should be added to the final regulations relating to the
concept of ``within a reasonable period of time.'' Although no specific
timeline is given, implementation should be done with all due haste.
Changes: The note following Sec. 300.343 has been removed.
[[Page 12582]]
IEP Team (Sec. 300.344)
Comment: A wide variety of general comments was received regarding
this section. Some commenters believe that anyone expected to implement
the IEP should attend the IEP meeting. Numerous comments were received
regarding the note to this section of the NPRM. Some commenters
believed that the note should be deleted in its entirety because it
went beyond the statute, while other commenters recommended that only
portions be deleted, or that the note be included in the regulations
instead. Other commenters requested a limitation on the number of
people that could attend IEP meetings, with provision for an exception
when necessary.
Other commenters suggested that there should be a requirement that
an appropriate member of the IEP team meet with every teacher that
works with a student to explain goals and objectives contained in the
IEP and accommodations and modifications required by the teachers.
Discussion: In response to commenters' recommendations and in light
of the general decision not to use notes in these final regulations,
the note following this section of the NPRM should be removed as a
note. However, substantive portions should be incorporated, as
appropriate, into pertinent provisions of this section, reflected in
questions and answers on IEP requirements that are contained in
Appendix A to these regulations, or addressed in the discussion of
comments regarding this section.
No limitation on the number of individuals who can attend IEP
meetings should be imposed, as requested by commenters, since these
determinations are left to parents and public agencies, based on the
requirements of this section. These requirements are sufficient to
ensure that membership on the IEP team is limited to individuals who
have particular knowledge or expertise to bring to the meeting. No
clarification is needed here with regard to accommodations and
modifications for all personnel who implement a child's IEP, since that
requirement is addressed under Sec. 300.346(d)(2) of these regulations.
Changes: The note following this section of the NPRM has been
removed.
Comment: Some commenters recommended that this regulation be
amended to specify that parents can bring ``advocates of their choice''
to their child's IEP meetings. Other commenters recommended that the
regulation be clarified to state that parent support personnel can
attend IEP meetings if requested by the parent, and that if the
district disagrees with the attendance of a person invited by the
parent, they may file a complaint but must not prohibit that person
from attending the meeting.
Commenters also requested clarification regarding how the public
agency would document that it has ensured that the parent actually has
been given the opportunity to participate meaningfully at their child's
IEP meeting.
Discussion: As numerous commenters emphasized, it is essential that
parents are given the opportunity to participate meaningfully as
members of their child's IEP team. In many situations, an IEP meeting
can be a very intimidating experience for many parents, even if the LEA
encourages their active participation. Frequently, as commenters have
suggested, parents would be assisted greatly at their child's IEP
meetings if another person could accompany them. It is important to
point out that under IDEA and the original regulations for this
program, parents always have been afforded the opportunity to bring a
friend or neighbor to accompany them at their child's IEP meeting.
Question 26 in the Notice of Interpretation on IEP requirements,
published as Appendix A to 34 CFR part 300, in 1981, stated in a note
that, in some instances, parents might elect to bring another
participant to the meeting, e.g., a friend or neighbor, someone outside
of the agency who is familiar with applicable laws and with the child's
needs, or a specialist who conducted an independent evaluation of the
child.
Many parents traditionally have brought other individuals to
accompany them to their child's IEP meeting as a way of ensuring their
meaningful participation. Therefore, in response to commenters'
suggestions and to ensure that meaningful parent participation at their
child's IEP meeting is preserved, a new paragraph (c) should be added
to this section.
Changes: Section 300.344 has been amended by adding a new paragraph
(c) to clarify that ``[T]he determination of the knowledge or special
expertise of any individual described in paragraph (a)(6) of this
section shall be made by the party (the parents or the public agency)
who invited the individual to be a member of the IEP team.''
Comment: Numerous commenters addressed the requirement in proposed
Sec. 300.344(a)(2) and the pertinent portions of the note regarding the
role of the regular education teacher as a member of the child's IEP
team if the child is, or may be, participating in the regular
educational environment. Some commenters were supportive of the
participation of the regular education teacher at an IEP meeting,
agreeing that at least one regular education teacher of the child
should be an IEP team member. Some commenters also pointed out that
problems surrounding placement of a child with a disability in the
regular classroom cannot be addressed without adequate preparation or
participation of teachers of those classes in the IEP meeting.
Those commenters opposed to the requirement cited potential costs.
Some commenters also pointed out that, for children with disabilities
taking a number of subjects, it will be impossible to bring all
teachers together, while a single teacher will not have the requisite
expertise on a variety of subjects.
Other commenters who were supportive of the regular education
teacher's participation in principle, and acknowledged the importance
of obtaining input from a regular education teacher, recommended a more
flexible approach. These commenters felt that a requirement that a
regular education teacher be present at every IEP meeting would
interfere with the ability of regular education teachers to provide the
necessary instruction to all children in their classrooms, both with
and without disabilities. Specific recommendations that commenters made
for regulatory changes were (1) the reference to regular educational
environment in Sec. 300.344(a)(2) should be replaced with language such
as, if the child is, or may be, participating in a non-special
education classroom; (2) the reference to regular education teacher
should be replaced with general education teacher or person
knowledgeable about the general education curriculum at the child's
grade level; (3) the participation of a regular education teacher is
required only if issues arise regarding behavior or socialization,
making the input necessary; and (4) a regular education teacher must
attend if the child with a disability is, or may be, receiving
instruction from a regular education teacher during the period of time
covered by the proposed IEP.
Commenters made a number of other suggestions concerning which IEP
meetings the regular education teacher needs to attend and how those
determinations could be made, such as, (1) the regular education
teacher must attend only the annual IEP review meeting, but that
attendance at other meetings should be on an as-needed basis; (2) there
should be no requirement that the regular education
[[Page 12583]]
teacher be physically present at the IEP meeting, but must be given the
opportunity to provide oral or written input about the child and
appropriate instructional strategies; (3) the regular education teacher
must attend to the extent appropriate; (4) the IEP team must consult
with the regular education teacher to the extent appropriate, and
determine whether it is necessary for the regular education teacher to
attend all or part of the meeting; and (5) attendance is at the option
of the regular education teacher, who also can appoint an individual of
his or her choice who has had experience with the child and/or has had
adequate pre-planning time with special education personnel.
Other commenters asked whether other individuals could be
substituted for the regular education teacher's participation at IEP
meetings, such as, (1) a special education teacher who is knowledgeable
about the general curriculum; (2) a school counselor, particularly for
high school students; (3) an individual certified as a regular
education teacher, regardless of whether that individual is currently
working with the child; and (4) for children who are receiving only
speech-language services, a regular education teacher need not
participate.
Commenters also requested that the regulations be clarified to
state that school officials will not be deemed to have predetermined
placement solely because a regular education teacher is not present at
an IEP meeting. In the event that a regular education teacher does not
attend, commenters asked if that regular education teacher would be
required to provide input regarding the regular curriculum, and, if so,
how this would be accomplished and documented.
Numerous commenters expressed concerns regarding confidentiality of
IEPs if regular education teachers who did not attend the meeting are
provided copies. Some commenters suggested that there be a central
location for all IEPs, and the regulation make explicit that there are
limitations on redisclosure of information in IEPs to others.
Discussion: Based on careful consideration of comments as well as
applicable statutory requirements, Sec. 300.344(a)(2) should be
retained in these final regulations, but additional clarification
should be provided in Appendix A and in Sec. 300.342(b) of these
regulations.
Section 614(d)(1)(B)(ii) of the Act specifies that the IEP team
must include ``at least one regular education teacher of such child (if
the child is, or may be, participating in the regular education
environment).'' This statutory provision therefore prescribes that for
any child who is, or may be participating in the regular educational
environment, that child's regular education teacher must be a member of
the child's IEP team. The child's regular education teacher's
membership on the IEP team is particularly important to meeting the
statutory requirement in section 614(d)(1)(A)(ii)(I) of the Act that
the IEP explain how the child's needs will be met so that the child can
be involved in and progress in the general curriculum.
In implementing the requirement for membership of a regular
education teacher on the IEP team, the public agency will determine
which teacher or teachers of the child will fulfill that function to
ensure participation of at least one regular education teacher in the
development, review, and revision of the child's IEP, to the extent
appropriate, in accordance with section 614(d)(3)(C) of the Act. (See
discussion of Sec. 300.346(d) of these regulations).
In addition, it would be highly beneficial to the education of
children with disabilities to ensure that those regular education
teachers and other service providers of the child who are not members
of the child's IEP team are informed about the contents of a child's
IEP to ensure that the IEP is appropriately implemented.
Whether the child's regular education teacher must be physically
present at an IEP meeting, and to what extent that individual must
participate in all phases of the IEP process, are matters that must (1)
be determined on a case-by-case basis by the public agency, the
parents, and other members of the IEP team, and (2) be based on a
variety of factors. This issue is discussed in more detail in a
question and answer contained in Appendix A to these final regulations.
Since the statutory language is incorporated into this regulation
verbatim, no changes should be made regarding the use of the term
``regular education teacher,'' or the statutory language regarding the
regular educational environment.
It is important to point out that the statute specifies that at
least one regular education teacher of the child is a member of the IEP
team. Therefore, the suggestions of commenters that other individuals
could participate in lieu of the child's regular education teacher as
the regular education teacher member of the child's IEP team should not
be adopted; however, as stated in the note to this section in the NPRM,
the regular education teacher participating in a child's IEP meeting
should be the teacher who is, or may be, responsible for implementing
the IEP, so that the teacher can participate in discussions about how
best to teach the child.
If the child has more than one regular education teacher, the LEA
may designate which teacher or teachers of the child will participate
on the IEP team. While all regular education teachers of the child need
not attend the child's IEP meeting, their input should be sought,
regardless of whether they attend. In addition, each public agency must
ensure that (1) the child's IEP is accessible to each regular education
teacher (and to each special education teacher, related services
provider and other service provider) who is responsible for its
implementation, and (2) each of the child's teachers and providers is
informed of his or her specific responsibilities related to
implementing the child's IEP, and of the specific accommodations,
modifications, and supports that must be provided to the child in
accordance with the IEP. This provision is necessary to ensure proper
implementation of the child's IEP and the provision of FAPE to the
child. However, the mechanism that the public agency uses to inform
each teacher or provider of his or her responsibilities is left to the
discretion of the agency.
It is expected that the circumstances will be rare in which a
regular education teacher would not be required to be a member of the
child's IEP team. However, there may be situations in which a child is
placed in a separate school and participates only in meals, recess
periods, transportation, and extracurricular activities with
nondisabled children and is not otherwise participating in the regular
educational environment, and no change in that degree of participation
is anticipated during the next twelve months. In these instances, since
there would be no current or anticipated regular education teacher for
a child during the period of the IEP, it would not be necessary for a
regular education teacher to be a member of the child's IEP team.
No further clarification should be provided in response to
commenters' concerns about the potential for violation of requirements
regarding confidentiality of information if copies of a child's IEP are
distributed to regular education teachers or other school personnel who
did not attend the IEP meeting. These regulations contain
confidentiality requirements at Secs. 300.560-300.577 that are modeled
after those in the Family Educational Rights and Privacy Act of 1974
(FERPA), 20 U.S.C. Sec. 1232(g), which also applies to this program.
[[Page 12584]]
While FERPA does not protect the confidentiality of information in
general, it prohibits the improper disclosure of information from
education records and generally protects parents' and students' privacy
interests in ``education records.'' Records regarding an individual
student's disability maintained by an educational agency or institution
or by a party acting for the agency or institution are education
records under FERPA. Therefore, a child's IEP is an ``education
record'' which is subject to FERPA.
Under FERPA and Part B, the prior written consent of the student's
parent or of the eligible student must be obtained for disclosure of
personally identifiable information in education records, unless one of
the authorized exceptions to the prior written consent requirement is
applicable. (34 CFR 99.30 and 300.571 (a)(2) and (b)).
Under 34 CFR 99.31(a)(1), educational agencies or institutions,
under certain circumstances, may disclose personally identifiable
information in education records without prior written consent to
school officials with legitimate educational interests. Each
educational agency or institution must provide annual notification
regarding how it meets the requirements of FERPA. This annual
notification under FERPA must include a statement indicating that the
parent or eligible student has a right to consent to disclosure of
personally identifiable information, and the exception permitting
nonconsensual disclosures to school officials with legitimate
educational interests must be described.
The criteria for determining which parties are school officials and
what the agency or institution considers to be a legitimate educational
interest also must be specified in this annual notification. (34 CFR
99.7(a)(3)). Accordingly, an educational agency or institution may
disclose information from education records to teachers and other
school officials who meet the criteria set forth in the agency's or
institution's notice and must restrict access by other school employees
who do not fall within an exception, unless consent to the disclosures
is obtained. Although regular education teachers who fall within this
exception also may disclose education records to other school officials
with legitimate educational interests, those officials are subject to
the restrictions on redisclosure in 34 CFR 99.33.
Public agencies also may find it practical to store education
records in one central location to limit access to those individuals to
whom the agency or institution is permitted to disclose personally
identifiable information without prior consent.
Changes: Section 300.342(b) has been amended, consistent with the
above discussion.
Comment: Commenters requested that ``special education provider''
be defined and that clarification be provided to indicate when a
special education provider could attend an IEP meeting in lieu of a
special education teacher. Other commenters asked if a paraprofessional
could attend an IEP meeting in lieu of a special education teacher or
special education provider. Some commenters recommended that the
regulations clarify that it would not be permissible for a
paraprofessional to be substituted for a qualified special education
teacher or provider as an IEP team member.
Commenters also recommended clarification that parents should be
informed about the qualifications of the IEP team members and degree to
which the IEP is being implemented by what commenters referred to as
``non-qualified personnel.''
Discussion: Section 300.344(a)(3) of these final regulations
implements section 614(d)(1)(B)(iii) of the Act, which gives the public
agency the flexibility to determine whether the child's special
education teacher or special education provider should be a member of
the child's IEP team. The special education teacher or provider who is
a member of the child's IEP team should be the person who is, or will
be, responsible for implementing the IEP. For example, if the child's
disability is a speech impairment, the special education teacher or
special education provider could be the speech-language pathologist.
While there is no statutory requirement that public agencies inform
parents of the qualifications of members of the IEP team, there is
nothing in these regulations that would preclude public agencies from
providing parents with this type of information. Public agencies are
encouraged to grant reasonable requests from parents for such
information.
Changes: None.
Comment: Numerous commenters requested that language from Appendix
A about the public agency's ability to commit agency resources be added
to the regulation. Commenters emphasized that it was especially
important that the individual attending an IEP meeting in the capacity
of public agency representative must be an individual such as an LEA
administrator who is qualified to develop specially designed
instruction and have authority to make decisions regarding LEA
resources.
To give LEAs flexibility in their representation, some commenters
suggested that the public agency representative should be an individual
who can interpret the instructional implications of evaluation results
and may be a member previously described. Other commenters emphasized
that the requirement for participation of a public agency
representative could be burdensome for rural States, and recommended
that the regulations be clarified to indicate that IEP team members
could fulfill dual functions so that responsibility of the public
agency representative could be delegated to another team member.
Some commenters requested that the regulation be amended to provide
that if particular services are not available in the district, lack of
availability does not relieve the school district of its obligation
either to provide needed services to a disabled child, or to include
those services on a child's IEP.
Discussion: The three criteria enumerated in the statute at section
614(d)(1)(B)(iv) describing the representative of the public agency who
is a member of the IEP team are incorporated into Sec. 300.344(a)(4) of
these final regulations. The statute should not be read to prohibit the
public agency from designating another member of the IEP team to act as
the public agency representative, if that individual meets the
specified criteria for each role. Therefore, a new paragraph (d) should
be added to Sec. 300.344 regarding a public agency's authority to
designate another IEP team member as the public agency representative
member of the IEP team, so long as the criteria in Sec. 300.344(a)(4)
are satisfied.
Changes: Section 300.344 has been amended by adding a new paragraph
(d), which authorizes a public agency to designate another IEP team
member as the public agency representative, provided the criteria in
Sec. 300.344(a)(4) are satisfied.
Comment: Many commenters emphasized the need to link the IEP and
evaluation processes to ensure that participants on the IEP team were
knowledgeable about the deliberations during the evaluation process and
eligibility determination. Some commenters believed that the language
about interpretation of evaluation results needs to be modified to
specify that the individual in this capacity had contributed to the
evaluation process. Many commenters requested that the regulation
should specify that the initial IEP team must include a member of the
eligibility team who is qualified to interpret the instructional
implications
[[Page 12585]]
of the evaluation results. Some commenters favored having such an
individual present at all IEP meetings.
Discussion: Section 300.344(a)(5) essentially reflects the
statutory requirement at section 614(d)(1)(B)(v), which requires the
participation of an individual who is knowledgeable about the
instructional implications of evaluation results, who may be another
member of the IEP team. No further clarification should be provided
since the statute specifically affords public agencies the flexibility
to select another member of the IEP team to fulfill the requirement of
Sec. 300.344(a)(5), provided that individual is knowledgeable about the
instructional implications of evaluation results.
Although commenters requested that the regulation be amended to
require the participation of a member of the eligibility team who is
knowledgeable about evaluation results to fulfill the requirement of
Sec. 300.344(a)(5), there is no statutory authority to impose such a
requirement, either for initial or subsequent IEP meetings. However, it
is expected that public agencies will find it helpful to have members
of the eligibility team as IEP team members for initial and subsequent
meetings to develop a child's IEP.
Changes: None.
Comment: Numerous comments were received regarding the
participation of related services personnel at IEP meetings. Some
commenters believed that any time a child is receiving a related
service, or whenever a related service is reflected in the child's
goals and objectives, the relevant related services personnel must
attend the IEP meeting. Other commenters requested that the
clarification in Appendix A regarding related services personnel who
have special knowledge and expertise regarding the child be included in
the regulations as well.
Many commenters requested a regulatory change to specify that
related services personnel must attend IEP meetings, if appropriate,
and need not be invited by the LEA. Other commenters recommended that
to assist parents, clarification should be provided that related
services personnel and the parents always must be notified of the IEP
meeting whenever the child's need for a related service is being
discussed. Other commenters recommended that Sec. 300.344(a)(6) be
changed to other individuals with special knowledge and expertise
regarding the child, the child's disability and unique needs, and that
criteria for attending the IEP meeting should include persons who can
contribute to the quality of the final document.
Many commenters recommended that the regulations specify which
related services personnel must attend IEP meetings. Several commenters
recommended that IEP teams always must include school psychologists who
are knowledgeable about clinical testing administration, particularly
when evaluation results are being used to determine IEP goals, behavior
impedes learning, reevaluations are required or are being determined,
and functional behavioral assessments and reviews of behavioral
interventions are necessary.
A number of comments were received regarding making the school
nurse or other qualified provider of school health services a required
participant on the IEP team. Some commenters limited this
recommendation to situations in which the child has medical concerns or
specialized health needs, and urged the participation of these
individuals to the greatest extent practical, and when appropriate on
the IEP team.
Many commenters were concerned that paragraph (a)(6) of this
section was too restrictive, because it (1) could prevent parents from
bringing support personnel, representatives of PTIs and other parent
organizations, and other advocates to their child's IEP meetings, and
(2) could place an unreasonable burden on the parent to prove the
individual's ``special knowledge or expertise'' regarding their child.
Several commenters requested that the regulations list the
conditions under which speech-language pathologists and audiologists
will or may serve on the IEP team. Some commenters recommended that the
regulations be amended to make the participation of the speech-language
pathologist at the IEP meeting mandatory, while other commenters
suggested that the number of individuals required to be on IEP teams
for students for whom speech is the only special education service was
excessive.
Some commenters recommended that the regulations specify that a
person knowledgeable about the language and communication needs of deaf
children must be present for their IEP meetings. Numerous commenters
favored including in the regulation the portion of the note regarding
the attendance of persons knowledgeable about positive behavior
interventions and strategies at IEP meetings, if the student's behavior
impedes the learning of the student or others. Some of these commenters
recommended that the reference be changed to a person trained in the
design and use of effective positive behavior support strategies.
Several comments were received regarding an attorney's
participation at IEP meetings, and a recommendation was made that the
discussion regarding the attorney's role at IEP meetings in Appendix A
should be incorporated into the regulations. Another commenter
recommended that the regulation should state that attorneys should
never be in attendance at IEP meetings unless such a meeting is
convened as a result of an administrative proceeding or judicial
review. Other commenters suggested that adults with disabilities should
be required members of the IEP team.
Discussion: Section 300.344(a)(6) adopts verbatim the statutory
language at section 614(d)(1)(B)(vi) of the Act. Under this section,
parents and public agencies have the discretion to bring to IEP
meetings as IEP team members other individuals who have knowledge or
special expertise regarding the child, including related services
personnel, as appropriate. Under this statutory provision, the parent's
and public agency's right to bring other individuals to the IEP meeting
at their discretion must be exercised in a manner that ensures that all
members of the IEP team have the knowledge or special expertise
regarding the child to contribute meaningfully to the IEP team.
Individuals with knowledge about the child could include neighbors
or friends of the parents, or advocates, who, in the judgement of the
parents, are able to advise or assist them at the meeting. Individuals
with special expertise could include professionals in evaluation or
special education and related services who have been directly involved
with the child, as well as those who do not know the child personally,
but who have expertise in (for example) an instructional method or
procedure, or in the provision of a related service that the parents or
agency believe can be of assistance in developing an appropriate IEP
for the child.
There is no need to make the participation of school nurses on the
IEP team mandatory, as requested by commenters. As providers of the
related service ``school health services,'' their participation would
be subject to the requirements of this section, and they could be
members of the IEP team at the discretion of the parents or public
agency, provided that they possess the requisite knowledge and special
expertise regarding the child. The same is true of providers of speech-
language and audiology services and individuals knowledgeable about the
communication needs of students who are deaf or hard of hearing. In the
case of a child whose behavior impedes the
[[Page 12586]]
learning of the child or that of others, the public agency is
encouraged to have a person with special expertise in positive behavior
interventions and strategies on the IEP team at the IEP meeting.
Individuals such as representatives of PTIs may, at the parent's
discretion, serve as members of the IEP team, provided they possess the
requisite knowledge or expertise regarding the child.
Regarding attorneys participation at IEP meetings, it is important
to note that a new statutory provision at section 615(i)(3)(D)(ii)
provides that attorneys' fees may not be awarded for an IEP team
meeting unless the meeting is convened as the result of an
administrative proceeding or judicial action, or at the discretion of
the State, for a mediation conducted prior to initiating a due process
hearing under the Act. Issues raised related to attorneys' fees
regarding IEP meetings are also addressed under Sec. 300.513 of this
attachment and in Appendix A.
It is not necessary to require the participation of adults with
disabilities on the IEP team. As is true of other related services
personnel, as well as other individuals selected as IEP team members at
the parent's or agency's discretion, an adult with a disability could
be a member of an IEP team at the parent's or public agency's
discretion if that individual possesses the requisite knowledge and
expertise regarding the child.
Changes: A new Sec. 300.344(c) has been added to clarify that ``The
determination of the knowledge or special expertise of any individual
described in paragraph (a)(6) of this section shall be made by the
parents or public agency who invited the individual to be a member of
the IEP team.''
Comment: Commenters recommended that the word ``appropriate'' be
deleted from Sec. 300.344(a)(7), since a student always should be
permitted to be at his or her IEP meeting, and that students eighteen
years of age and older always should be considered members of the IEP
team.
Commenters also recommended that language be added to the
regulation to clarify that students under age 14 be included on the IEP
team on an as-appropriate basis, and that students 14 and older be
included as members of the team. Other commenters recommended
clarification that the decision as to when it is ``appropriate'' for a
child to attend his or her IEP meeting rests with the child and his or
her parents.
Other commenters expressed a concern that students could be coerced
into accepting instructional plans and that the IEP provisions should
be amended to require that an advocate employed by the LEA must be
present at every consultation involving teachers and students regarding
IEP or implementation.
Discussion: Section 300.344(a)(7) of these regulations adopts
verbatim the statutory requirement at section 614(d)(1)(B)(vii) of the
Act regarding the child's participation as a member of his or her IEP
team, as appropriate. Consistent with this statutory requirement,
public agencies must invite students to attend IEP meetings in
appropriate situations.
No regulatory change deleting the reference to ``if appropriate''
should be made, as requested by commenters, since to do so would alter
the explicit statutory provision limiting the student's participation
in IEP meetings to appropriate situations. However, if a purpose of the
meeting will be the consideration of a student's transition services
needs or needed transition services or both, Sec. 300.344(b)(1) of
these regulations would provide that the student must be invited to
attend, because it is important to afford students an opportunity to
participate and have a voice in planning for their transition from
school to post-school activities, including postsecondary education and
employment.
The change requested by commenters regarding the participation of a
student over eighteen years of age as a member of their IEP team should
not be made. Even if, under section 615(m) of the Act, all rights
accorded parents under Part B transfer to students who have reached the
age of majority under State law, ages of majority differ among States,
and not all States regard age eighteen as the age at which parental
rights transfer to children. In addition, under section 615(m) of the
Act, there are circumstances in which parental rights accorded under
Part B may not be transferred, even in a State that transfers rights at
the State age of majority.
No change should be made regarding the commenters' concerns that
students would be coerced into accepting instructional plans. It would
be more appropriate to address these implementation issues at the State
and local levels.
Changes: None.
Comment: Commenters requested that this section be revised to
require SEAs and LEAs to enter into interagency agreements with non-
school agencies that include participation by non-school agencies in
transition meetings. Other suggestions made by commenters were that a
statement be added to the regulations to require the attendance of an
advocate or staff member from an independent living center and a
transition coordinator at an IEP meeting whenever transition services
are discussed. Other commenters requested additional information about
boundaries and parameters for enlisting the involvement of other agency
personnel in transition meetings.
Some commenters suggested that not only the public agency should
have the ability to invite representatives of other agencies, but so
should the parents. If a student is unable to attend an IEP meeting,
other commenters asked what steps will be taken to ensure that the
student's preferences and interests are being considered, especially if
transition services are being discussed.
Discussion: Section 300.344(b)(1) of these regulations would
require that a student of any age be invited to an IEP meeting if a
purpose of the meeting is to meet a requirement of Sec. 300.347(b)(1)
(transition services) of these regulations. If the student cannot
attend, the public agency must take whatever steps are necessary to
ensure that the student's preferences and interests are being
considered. No further clarification should be provided since these
steps necessarily will vary based on a variety of factors, including
the needs of the student.
There is no need for clarification regarding interagency
agreements, since Sec. 300.142 of these regulations already contains a
requirement that agreements be in place between educational and
noneducational public agencies to govern the provision and financing of
all required services under these regulations, including transition
services. There is no need to require the participation of advocates
and transition coordinators at IEP meetings at which transition
services needs or the statement of needed transition services is being
discussed.
Changes: None.
Parent participation (Sec. 300.345)
Comment: A number of comments were received on the notice
requirement in Sec. 300.345(a), including comments requesting that (1)
the regulations require that the notice be in a format and in language
that is usable by parents; (2) because of the prior written notice
requirement in the statute, public agencies should not have the option
to provide verbal notice (i.e, by telephone); (3) LEAs generally should
not be allowed to reject a parent's proposal for a time and place of
the meeting, and meetings should be held at times that accommodate
parents' work schedules; (4) the term ``early enough'' in
Sec. 300.345(a)(1) be replaced with a
[[Page 12587]]
specific number of days; and (5) a draft IEP be given to parents not
less than 10 days before the meeting.
Discussion: The ``notice'' requirement in Sec. 300.345(a) of these
final regulations implements provisions under prior regulations that
were not changed by the IDEA Amendments of 1997, and, therefore, does
not need to be revised with respect to the comments received. This
requirement is a long-standing provision that is intended mainly to
inform parents about the IEP meeting and provide them with relevant
information about it (e.g., the purpose, time, and place of the
meeting, and who will be in attendance). The requirement is not the
same as the prior notice provision in Sec. 300.503 (which requires
written notice to parents whenever the public agency proposes, or
refuses, to initiate or change the identification, evaluation, or
educational placement of the child or the provision of FAPE to the
child).
In implementing Sec. 300.345(a), some LEAs elect to contact parents
by telephone or to send less formal notes about IEP meeting
arrangements than would be required under Sec. 300.503. These
approaches are consistent with the long-standing regulatory
requirement. With respect to Sec. 300.345(a)(1) (i.e., notifying
parents early enough of the meeting to ensure that they will have an
opportunity to attend), there is no information to justify replacing
the term ``early enough'' with a specified timeline. Because
communicating with parents about IEP meeting arrangements is generally
a less formal process than the procedures required by certain other
provisions in this part, the use of timelines could have a negative
effect.
The key factor in Sec. 300.345(a) is that public agencies
effectively communicate with parents about the up-coming IEP meeting,
and attempt to arrange a mutually agreed upon time and place for the
meeting. This process should accommodate the parents' work schedules to
ensure that one or both parents are afforded the opportunity to
participate.
The commenter's request that the public agency provide parents with
a copy of the IEP 10 days before the meeting is inconsistent with the
requirements of this part, which requires that the IEP be developed at
the IEP meeting. However, to the extent that preliminary information is
available in the agency that may affect discussions and decisions at
the meeting related to their child's IEP, it is expected that the
information would be provided to the parents sufficiently in advance of
the meeting so that they can participate meaningfully in those
discussions and decisions on an equal footing with other members of the
IEP team. It is not necessary to set out a specific timeline for this
information to be provided.
Changes: None.
Comment: A number of comments were received requesting that the
first sentence of the note following Sec. 300.345 (related to informing
parents of their right to bring other people to the IEP meeting) be
added to the regulation, and specifically to Sec. 300.345(b) to ensure
that this would be a specific requirement. Other commenters recommended
deleting the note, stating that it is misleading, and will confuse
parents and school staff and lead to unneeded difficulties.
Discussion: It is important for parents of children with
disabilities to be aware that, under the provisions of
Sec. 300.344(a)(6) and (c), other individuals may be included on their
child's IEP team, provided that the individuals have knowledge or
special expertise regarding the child (see discussion under
Sec. 300.344 of this analysis). To ensure that parents know about those
provisions, public agencies should be required to include information
about the provisions in the notice of IEP meetings specified under
Sec. 300.345(a)(1) and (b)(1)(ii).
Changes: Section 300.345(b) has been amended to provide that the
notice required under Sec. 300.345(b) must ``Inform the parents of the
provisions in Sec. 300.344(a)(6) and (c) (relating to the participation
of other individuals on the IEP team who have knowledge or special
expertise about the child).''
Comment: A few comments were received on Sec. 300.345(d) (related
to holding an IEP meeting without the parents if the LEA is unable to
convince them to participate). The commenters stated that the term
``convince'' should be replaced because it connotes an adversarial
situation between the LEA and the parents, and suggested other terms.
Some commenters requested that Sec. 300.345(d)(3) (related to visits to
a parent's home or place of employment) be deleted, stating (for
example) that such a provision is overly intrusive, invasive, and could
anger employers, and could cause some parents to be negatively impacted
or insulted; and that the remaining methods in Sec. 300.345(d)(3) are
sufficient.
Another commenter suggested replacing the language in this
paragraph with language that would require LEAs to demonstrate what
they have done in attempting to involve parents.
Discussion: Section 300.345(d) is a longstanding provision that is
intended to enable a public agency to proceed to conduct an IEP meeting
if neither parent elects to attend, after repeated attempts by the
public agency to ensure their participation. In administering and
monitoring the provisions of this part over the past 22 years, few, if
any, questions or concerns have been identified, or raised, with
respect to the implementation of Sec. 300.345(d), and there is no
information to justify amending the paragraph at this time, either with
respect to the word ``convince'' or the reference to maintaining
records of efforts to involve the parents.
The regulation makes it clear that paragraphs (d)(1) through (d)(3)
of this section are examples of what a public agency ``may do'' to
maintain a record of its attempts to arrange a mutually agreed on time
and place for conducting an IEP meeting. Public agencies are not
required to go to the parent's place of employment to attempt to seek
the parents' involvement in their child's IEP; and it is expected that
a public agency would pursue that option very judiciously. However,
there may be situations in which the agency believes that it is
important to do so because it is otherwise unable to contact the
parent. Implementation of this specific provision is left to the
discretion of each public agency. In any case in which the agency is
unable to contact the parents or otherwise ensure their participation,
Sec. 300.345(d) sets out options that the agency may elect to follow.
Changes: None.
Comment: Several commenters recommended that Sec. 300.345(f) be
amended to delete the term ``on request'' from the statement, so that
parents are given a copy of the IEP without having to ask for it. One
commenter requested that the copy be given within 5 days of the
meeting.
Discussion: The new statute has given parents a more active voice
in the education of their children with disabilities than existed under
prior law. Because of the role parents play in the development, review,
and revision of their child's IEP, it is appropriate to amend the
regulation to require that each public agency must give the parents a
copy of their child's IEP at no cost to the parents.
Changes: Section 300.345(f) has been amended consistent with the
above discussion.
Development, Review, and Revision of IEP (Sec. 300.346)
Comment: A few comments were received on Sec. 300.346(a)(1).
Commenters recommended that (1) examples be added related to the
strengths of the child and the concerns of the parents for
[[Page 12588]]
enhancing the child's education; (2) the IEP team also consider the
child's performance results on any State or district-wide assessments,
in addition to the results of the initial or most recent evaluation of
the child; and (3) the term ``consider'' be replaced with ``examine and
address;'' or with ``incorporate,'' to ensure that the IEP team
incorporates the listed items into a child's IEP, rather than simply
considering them.
While some commenters recommended that Note 1 be retained, other
commenters recommended that the clarification in the note either be
included in the text of the regulation or deleted in its entirety. One
of the concerns expressed by commenters was that in considering special
factors, the statement in Note 1 concerning review of valid information
data, as appropriate, sets up a demand of separate or more expansive
evaluation procedures for special consideration.
Discussion: Section 300.346(a)(1) adopts the statutory requirements
related to considering the strengths of the child and the concerns of
the parents. No examples regarding this provision have been
incorporated into these final regulations, since these determinations
would differ for each student, based on a variety of unique factors in
light of the abilities and needs of the parents and children involved.
Because the requirement to ``consider'' the strengths of the child and
the concerns of the parent, as well as the special factors, is
statutory, a word other than ``consider'' should not be substituted.
The requirements in paragraph (a)(1) and (a)(2) of this section impose
an affirmative obligation on the IEP team to ensure that the child's
IEP reflects those considerations.
Paragraph (c) of this section also makes clear that if the IEP team
determines, through consideration of special factors, that a child
requires a particular service, intervention, or program modification, a
statement to this effect must be included in the child's IEP.
Therefore, no further clarification is necessary. Because the
requirements in Sec. 300.346(a) are evident from the text of this
regulation, there is no need to retain Note 1 to this section of the
NPRM in these final regulations.
Section 300.346(a)(1)(ii) also requires consideration of the
results of the initial or most recent evaluation of the child, and this
consideration must include, as appropriate, a review of valid
evaluation data and the observed needs of the child resulting from the
evaluation process. Because Pub. L. 105-17 strengthens collaboration
between the IEP and evaluation processes, it is expected that this
consideration will occur, as appropriate, through examination of
existing evaluation data. Therefore, the commenters' concern that
separate or expansive evaluation procedures would be required is not
warranted.
The commenters' suggestion regarding the IEP team's consideration
of the child's performance results on any State and district-wide
assessment programs is consistent with the emphasis in the Act on the
importance of ensuring that children with disabilities participate in
the general curriculum and are expected to meet high achievement
standards. Effective IEP development is central to helping these
children meet these high standards. Section 612(a)(17) of the Act and
Sec. 300.138 of these regulations require, as conditions for receipt of
IDEA funds, that States ensure that children with disabilities are
included in general State and district-wide assessment programs, with
appropriate accommodations where necessary, and must report the
performance results of these children on such assessments. Therefore,
Sec. 300.346(a)(1) should be amended by adding paragraph (iii) to
require that in considering the results of the initial or most recent
evaluation of the child, the IEP team also consider, as appropriate,
the results of the child's performance on any general State or
district-wide assessment programs.
Changes: Section 300.346(a)(1) has been amended by adding paragraph
(iii) to provide that, in considering the child's initial or most
recent evaluation, the IEP team also consider, as appropriate, the
results of the child's performance on any general State or district-
wide assessment programs. Note 1 to this section of the NPRM has been
removed.
Comment: Numerous comments were received on Sec. 300.346(a)(2)
(i.e., consideration of special factors). With respect to the factor
under paragraph (a)(2)(i), in the case of a child whose behavior
impedes his or her learning or that of others, commenters requested
that (1) the term ``if appropriate'' be deleted because it will be used
only for those children exhibiting dangerous behavior; (2) a note be
added to state that consideration should be given to whether the
behavior that impedes learning is due to frustration over a lack of
services; (3) the IEP team also consider behavior exhibited both in and
outside the school, and behavior that must be addressed to sustain in-
school learning; (4) aversive behavior management strategies are banned
under these regulations; (5) a child not be subjected to physical
restraints or interventions unless agreed to by the child's parent and
teacher; and (6) a plan between the parent and teacher be required to
specify what disciplinary actions would occur if a child violated his
or her behavioral intervention plan.
Discussion: Paragraph (a)(2) of this section (relating to
consideration of special factors) implements the new statutory
requirement in section 614(d)(3)(B) of the Act. It should be emphasized
that, under prior law, IEP teams were required to consider these
special factors in situations where such consideration was necessary to
ensure the provision of FAPE to a particular child with a disability.
Therefore, this new statutory provision makes explicit what was
inherent in each child's entitlement to FAPE under prior law.
Paragraph (a)(2)(i) of this section adopts the statutory
requirement at section 614(d)(3)(B)(i) of the Act, that, in the case of
a child whose behavior impedes his or her learning or that of others,
the IEP team consider, if appropriate, strategies, including positive
behavioral interventions, strategies, and supports to address that
behavior. The commenters' concern that the retention of the words ``if
appropriate'' would mean that the provision would be applied only in
situations where a child exhibited dangerous behavior seems to ignore
that school officials have powerful incentives to implement positive
behavioral interventions, strategies and supports whenever behavior
interferes with the important teaching and learning activities of
school. Since the word ``strategies'' is used two times in the
statutory provision, contrary to commenters' suggestion, the word
strategies should not be deleted the second time it appears in this
section.
Although the commenters' suggestions that behavior may be exhibited
that impedes learning due to a frustration over lack of services and
that the IEP team needs to examine in and out-of-school behavior to
develop interventions to sustain learning are extremely important, no
clarification should be provided in these regulations, to avoid
overregulation in this area. It would be more appropriate to provide
technical assistance on Sec. 300.346(a)(2)(i) on an as needed basis,
instead of developing general rules to which numerous exceptions would
most likely apply. The Department funds a number of research efforts in
this area, as well as technical assistance providers. Of course, in
appropriate cases it might be helpful to all parties for the IEP to
identify the circumstances or behaviors of others that may result in
inappropriate behaviors by the child.
Regarding what behavioral interventions and strategies can be used,
and whether the use of aversive
[[Page 12589]]
behavioral management strategies is prohibited under these regulations,
the needs of the individual child are of paramount importance in
determining the behavioral management strategies that are appropriate
for inclusion in the child's IEP. In making these determinations, the
primary focus must be on ensuring that the behavioral management
strategies in the child's IEP reflect the Act's requirement for the use
of positive behavioral interventions and strategies to address the
behavior that impedes the learning of the child or that of other
children.
It would not be appropriate for these regulations to require a
specific plan between the teacher and parent, as described by
commenters, that would specify consequences for a student's failure to
comply with a behavioral intervention plan. A child's need for this
type of plan, and the specific elements of that plan, would vary
depending on the child and the behavior involved. Of course, in
appropriate circumstances, the IEP team which includes the child's
parents, might agree upon a behavioral intervention plan that included
specific regular or alternative disciplinary measures that would result
from particular infractions of school rules.
Parents who disagree with the behavioral interventions and
strategies included in their child's IEP can utilize the Act's
procedural safeguard requirements, which afford them the right to
request an impartial due process hearing under Sec. 300.507 and the
option to use mediation under Sec. 300.506 of these regulations.
Changes: None.
Comment: Numerous comments were received on Sec. 300.346(a)(2)(ii)
and Note 3 (factors related to a child with limited English proficiency
(LEP). Commenters recommended changes in the regulation, such as: (1)
replacing ``IEP'' with ``disability'' in Sec. 300.346(a)(2)(ii); (2)
clarifying that the consideration include how the child's level of
English language proficiency affects the provision of special education
and related services needed to receive FAPE, and how the child will be
provided meaningful and full participation in the general curriculum,
including through the use of alternative language services; (3)
clarifying that special education and related services be provided in
the language identified by the school district, with appropriate
support services; (4) clarifying whether English language tutoring is a
related service that must be included in a child's IEP or part of the
general curriculum; and (5) recognizing that second language
acquisition might take precedence over the general curriculum.
A few commenters expressed support for Note 3, stating (for
example) that it is helpful in recognizing that special education
services may need to be provided in a language other than English.
Other commenters requested that Note 3 be moved to the text of the
regulation, or deleted in its entirety since it expands
responsibilities under these regulations to requirements of Federal
laws other than Part B.
Discussion: Section 300.346(a)(2)(ii) of these regulations adopts
verbatim the statutory requirement at section 614(d)(3)(B)(ii) of the
Act, that in the case of a child with limited English proficiency, the
IEP team consider the language needs of the child as such needs relate
to the child's IEP. Modifications to this paragraph that would involve
changes to statutory language should not be made.
Issues such as the extent to which a LEP child with a disability
receives instruction in English or the child's native language, the
extent to which a LEP child with a disability can participate in the
general curriculum, or whether English language tutoring is a service
that must be included in a child's IEP, are determinations that must be
made on an individual basis by the members of a child's IEP team.
In light of the general decision to remove all notes, Note 3 has
been removed. However, in developing an IEP for a LEP child with a
disability, it is particularly important that the IEP team consider how
the child's level of English language proficiency affects the special
education and related services that the child needs in order to receive
FAPE, consistent with Sec. 300.346(a)(2)(ii) and (c). Under Title VI of
the Civil Rights Act of 1964, school districts are required to provide
LEP children with alternative language services to enable them to
acquire proficiency in English and to provide them with meaningful
access to the content of the educational curriculum that is available
to all students, including special education and related services.
A LEP child with a disability may require special education and
related services for those aspects of the educational program which
address the development of English language skills and other aspects of
the child's educational program. For a LEP child with a disability,
under paragraph (c) of this section, the IEP must address whether the
special education and related services that the child needs will be
provided in a language other than English.
Changes: Note 3 has been removed.
Comment: With respect to the special factor considered for a child
who is blind or visually impaired, commenters requested that the
regulation clarify that (1) Braille materials must be provided to
students who are blind or visually impaired at the same time that their
sighted peers receive the materials; (2) a child may not be denied
Braille services on the basis that modified reading and writing media,
other than Braille, are being provided; (3) when there is a
disagreement about the use of Braille, Braille instruction must be
provided until lawful procedures have culminated in a final decision;
and (4) any child who meets the legal definition of blindness should be
taught Braille.
Commenters also stated that other options besides Braille may be
needed for certain students, as described in the ``Policy Guidance on
Educating Blind and Visually Impaired Students'' (OSEP 96-4, dated 11-
3-95), and requested that a note be added that includes much of the
content of that document, or that a reference be made to that policy
guidance paralleling Note 2 relating to students who are deaf or hard
of hearing.
Discussion: Section 300.346(a)(2)(iii) of these final regulations
adopts verbatim the statutory language at section 614(d)(3)(B)(iii) of
the Act. Under this requirement, in the case of a child who is blind or
visually impaired, the IEP team must make provision for instruction in
Braille and the use of Braille, unless the IEP team determines, after
the evaluations described in the statutory provision, that instruction
in Braille or the use of Braille is not appropriate for the child.
Changes to statutory language requested by commenters should not be
made.
Contrary to a suggestion of commenters, a regulatory provision
making it mandatory for Braille to be taught to every child who is
legally blind would contravene the individually-oriented focus of the
Act, as well as the statutory requirement that the IEP team must make
individual determinations for each child who is blind or visually
impaired based on relevant evaluation data. As explained in OSEP
Memorandum 96-4, Policy Guidance on Educating Blind and Visually
Impaired Students, the IEP team's determination as to whether a child
who is blind or visually impaired receives instruction in Braille or
the use of Braille cannot be based on factors such as availability of
alternative reading media, such as large print, recorded materials, or
computers with speech output.
Additionally, although these regulations do not specify that a
child
[[Page 12590]]
for whom Braille instruction is determined appropriate must receive
Braille materials at the same time they are provided to their sighted
peers, once the IEP team determines that a child requires instruction
in Braille, such instruction, along with other aspects of the child's
IEP, must be implemented as soon as possible following the child's IEP
meeting, and in any case, without undue delay. If there is disagreement
between the parents and school district over what constitutes an
appropriate program for a child who is blind or visually impaired, when
the IEP team has determined that instruction in Braille would not be
appropriate for the child, the parents of the child would have the
right to request a due process hearing and mediation. In addition,
parents have available to them mediation and complaint resolution by
which they can file a complaint with the SEA under the State complaint
procedures in these regulations.
Although the LEA would not be required to provide instruction in
Braille while the dispute is being resolved, the LEA would be required,
both by Part B and Section 504, to ensure that the child receives
instructional materials in an alternative medium to enable the child to
participate in the LEA's program.
The OSEP Policy Guidance on Educating Blind and Visually Impaired
students should not be included in these final regulations since many
of the statutory and regulatory provisions cited in the policy guidance
have been replaced by the requirements of Pub. L. 105-17. In some
important respects, particularly with regard to consideration of
instruction in Braille, Pub. L. 105-17 substantially revised the
requirements of prior law. It also should be pointed out that Note 2 to
this section of the NPRM, which contained a reference to corresponding
policy guidance regarding educating deaf students, is being removed as
a note, and pertinent references to that policy guidance are
incorporated into the discussion of Sec. 300.346(a)(2)(iv).
Changes: None.
Comment: With respect to considering the communication needs of the
child and factors related to a child who is deaf or hard of hearing,
commenters expressed support for Note 2 (related to policy guidance on
Deaf Students Education Services that was published in the Federal
Register in 1992), and requested that the entire statement be published
as an attachment to these regulations. Some commenters favored deleting
Note 2 because they objected to citation of policy guidance documents
in the regulations without following applicable procedures in section
607(b) and (c) of the Act.
Commenters recommended adding to the regulations proposed
definitions of the terms ``direct communication,'' ``the child's
language,'' and ``full range of needs,'' or adding clarifying language
relating to those terms (e.g., that the child's primary language could
be American Sign Language, and that the full range of needs includes
social, emotional, and cultural needs).
Commenters also recommended (1) requiring that counselors of the
deaf assess each deaf child's language and speech communication in
spontaneous conversation at age 5, to determine whether the child has
the skill to stay in an oral program or should be transferred to a
program that uses sign language; (2) that the regulations make it clear
that the communication needs of a deaf child are fundamental to the LRE
decision; (3) that many deaf children need to be in an environment
where they can communicate directly through a visual mode with those
around them; and (4) that the IEP team document that it considered the
language and communication needs of a hard of hearing child and how
such needs will be met in the proposed placement.
A few commenters requested that children with cochlear implants be
included with other deaf children in the structure of educational
placements and language and communication needs, and that the IEP state
what will be done to assist the child to best utilize the hearing
acquired.
Some commenters requested adding children with deafness and
blindness because they also have communication needs and require this
consideration.
Discussion: Section 300.346(a)(2)(iv) of these regulations adopts
verbatim the statutory requirement in section 614(d)(3)(B)(iv) of the
Act that the IEP team consider the communication needs of the child,
and, in the case of a child who is deaf or hard of hearing, those
additional special factors relating to the child's language and
communication needs. Additional guidance in the form of changes to the
regulations requested by commenters should not be provided.
In the interest of not using notes in these final regulations, Note
2 to this section of the NPRM should be removed. It is important to
emphasize that this policy guidance on Deaf Students Educational
Services merely interprets existing statutory and regulatory
requirements, and does not impose new requirements on the public.
Nevertheless, LEAs are not relieved of their responsibilities to ensure
that paragraph (a)(2)(iv) of this section is implemented consistent
with the published policy guidance on Deaf Students Education Services,
and that the full range of communication and related needs of deaf and
hard of hearing students are appropriately addressed in evaluation,
IEP, and placement decisions under these regulations.
The Senate and House Committee Reports on Pub. L. 105-17 reinforce
this principle in their statements that ``the IEP team should implement
the [new statutory] provision in a manner consistent with the policy
guidance entitled ``Deaf Students Education Services'' published in the
Federal Register (57 FR 49274, October 30, 1992) by the Department.''
S. Rep. No. 105-17, p. 25., H.R. Rep. No. 105-95, p. 104 (1997). The
Department fully expects LEAs to ensure that Sec. 300.346(a)(2)(iv) of
these regulations is implemented consistent with these statements.
Changes: Note 2 has been removed.
Comment: With respect to considering whether a child needs
assistive technology (AT), some commenters stated that if AT devices or
services are recommended and not provided, the IEP must include a
statement to that effect and the basis on which the determination was
made. Other commenters stated that having to document that such devices
and services were considered is an unnecessary paperwork burden.
Commenters also recommended (1) requiring that decisions about the
need for AT are made early enough so that they are in effect by the
beginning of the school year; (2) clarifying that if an AT device is
needed, the child has the right to take it home; (3) adding
clarification of liability issues (e.g., where a child uses a family
owned device at school and other waiver of liability issues); and (4)
adding a note that AT can have a significantly positive effect on the
attainment of annual goals and participation in the general curriculum.
Discussion: Section 300.346(a)(2)(v) of these regulations adopts
verbatim the new statutory requirement at section 614(d)(b)(3)(v) of
the Act, making it mandatory for the IEP team to consider each child's
AT needs. This statutory provision reinforces the requirement in
Sec. 300.308 of these regulations that if an IEP team determines that a
disabled child requires an AT device or service in order to receive
FAPE, the required AT must be provided at no cost to the parents. In
all instances, the IEP team must determine whether an individual
disabled child should receive AT, and if so, the nature and extent of
AT provided to the child.
[[Page 12591]]
Because in many situations, parents were reporting that LEAs were
not properly considering their children's AT needs on an individual
basis, this new provision should ensure that each child's IEP team
considers the child's need for AT. Since IEP teams must consider each
child's need for AT on an individual basis, determinations regarding
the provision of AT must be made when the child's IEP for the upcoming
school year is finalized so that the AT can be implemented with that
IEP at the beginning of the next school year.
In the interest of not adding paperwork burdens to these
regulations, there is no additional requirement that LEAs document that
the IEP team considered a child's AT needs, or considered a child's AT
needs and determined that AT not be provided to the child. It is not
necessary to add the clarification regarding the importance of
reflecting a child's AT needs in IEP goals and objectives or in issues
relating to the child's participation in the general curriculum.
All of needs identified through consideration of the special
factors contained in paragraph (a)(2) of this section must be reflected
in the contents of the child's IEP, including, as appropriate, the
instructional program and services provided to the child, the annual
goals, and the child's involvement in and progress in the general
curriculum. In addition, individual consideration of a child's AT needs
is essential to ensuring that the child's unique needs arising from his
or her disability are appropriately addressed so that the child can be
involved in and progress in the general curriculum.
Issues regarding whether AT devices or services can be used at
home, and issues regarding liability for family-owned AT devices used
at school are addressed either in discussions of Secs. 300.5-300.6 or
300.308 of the attachment, and, as appropriate, are reflected in
changes to those regulations.
Changes: None.
Comment: Commenters stated that, in light of the fact that IEP
teams must consider special factors in five specific instances, and are
responsible for significant decisions as a result of changes made by
Pub. L. 105-17, a new paragraph (a)(3) should be added to Sec. 300.346
to provide specific guidance to IEP teams (e.g., requiring that the
teams draw upon information from a variety of sources, including
teacher observation, input from parents, and other specified
information). Other commenters requested that a new paragraph be added
to Sec. 300.346 to ensure that all children with disabilities receive
the services in their IEPs and retain the rights and privileges
included under the Act.
Discussion: While the concerns expressed by these commenters are
extremely important, no regulatory changes should be made.
Consideration of the five specific factors outlined in the statute and
these regulations, of necessity, will require consideration of
information from a variety of sources, and Sec. 300.346(c) of these
regulations also requires that such consideration be reflected in the
contents of a child's IEP. In addition, it is not necessary to add a
provision to clarify that all children with disabilities must receive
services listed in their IEPs. This requirement is already reflected in
Sec. 300.350 of these regulations, which provides that each child with
a disability must receive special education and related services in
accordance with an IEP.
Changes: None.
Comment: A few comments were received on Sec. 300.346(d)(2)
(relating to the determination of supplementary aids and services,
program modifications, and supports for school personnel, consistent
with Sec. 300.347(a)(3)). The commenters stated that (1) the term
``supports for school personnel'' focuses the need from the student to
the staff, and recommended adding a note to narrow this provision,
because it could be interpreted broadly by staff and have a negative
effect on resources that are needed to directly meet student needs; (2)
the provision may be used by teachers to block admission of children
with disabilities to their class by demanding unreasonable supports;
(3) additional guidance be provided, since this is the first time that
the IEP has addressed needs not specific to the child; and (4) language
be added indicating that the LEA and not the teacher should be the
focus of responsibility in the provision of such supports.
Discussion: With respect to Sec. 300.346(d)(2), including the
statement relating to supports for school personnel, it is critical
that those determinations are ``consistent with Sec. 300.347(a)(3).''
Section 300.347(a)(3) makes clear that the focus of the supports is to
assist the child to advance appropriately toward (for example)
attaining the annual goals, and to be involved in and progress in the
general education curriculum. Therefore, while certain supports for
school staff may be provided (such as specific training in the
effective integration of children with disabilities in regular
classes), the ultimate focus of those supports to school personnel is
to ensure the provision of FAPE to children with disabilities under
Part B, their integration with nondisabled peers and their
participation and involvement in the general curriculum, as
appropriate. Consistent with the Act's emphasis on ensuring the
provision of FAPE to children with disabilities, and, to the maximum
extent appropriate, educating those children in regular classes with
nondisabled children with appropriate supplementary aids and services,
it is critical that at least one regular education teacher of the child
be a member of the IEP team and provide input on appropriate
supplementary aids and services, including program modifications and
supports for school personnel. It also is essential that the child's
teachers and other service providers who are not members of the IEP
team are informed about the contents of the child's IEP, in whatever
manner deemed appropriate by the public agency, so that the IEP is
properly implemented by all school personnel.
Changes: None.
Content of IEP (Sec. 300.347)
Comment: A number of general comments were received relating to
Sec. 300.347. Some commenters expressed concerns that the IEP
requirements were burdensome. A commenter requested that a sample IEP
be provided in order to cut down on paperwork and keep the IEP to the
essentials of Federal and State law. Commenters also (1) requested that
a provision addressing assistive technology be added, as it is often
not provided, and (2) stated that Sec. 300.347 should contain a
requirement that the IEP document be in a user-friendly format and
written in language that can be understood by parents, and that the
mandatory contents of IEPs include ESY services, if a child is eligible
for such services, and necessary services that will be provided by
another agency and the name of the provider.
Other commenters requested (1) documenting how special factors were
considered; (2) clarifying the role of the regular education teacher in
IEPs of children who are in self-contained, restrictive placement
settings, or private placements; (3) providing the necessary
flexibility to change how and where services are delivered to meet the
child's changing needs; and (4) forbidding the practice of LEAs
providing interim plans which promise that a full IEP will be developed
at a later date--a device used by LEAs to avoid specifying what they
will do for a child, so that the IEP can be discussed
[[Page 12592]]
and litigated (if necessary) well before the start of a school year.
Discussion: In developing these final regulations, efforts have
been made to ensure that the regulatory requirements related to the
content of IEPs are consistent with the IDEA Amendments of 1997, and
that no additional burden is added. The Department will explore the
extent to which a sample IEP addressing the Federal requirements as
part of a technical assistance effort, would be useful to parents and
State and local administrators in developing IEPs that meet Federal,
State, and local rules.
With respect to concerns about added burden, the provisions of
Sec. 300.347 are drawn directly from the statute. While the statute did
add some new requirements regarding content, it also gave the
flexibility to use benchmarks of progress as opposed to short term
objectives, and to determine how to regularly report on a child's
progress instead of the more burdensome objective criteria, evaluation
procedures and schedules required under prior law.
Except for including, essentially verbatim, the statutory content
requirements in the regulations, the format and specific language used
in developing IEPs are matters left to the discretion of individual
States, and, to the extent consistent with State requirements,
individual LEAs within the States. In providing such discretion, the
assumption is that each State and LEA would attempt to make the format
and language of the IEP as understandable and meaningful for parents as
possible. Within this general framework, IEP teams develop the specific
detail that is necessary to address each child's individual needs.
The importance of assistive technology devices and services in
meeting the special educational needs of children with disabilities is
addressed in several sections of these regulations (e.g., Secs. 300.5,
300.6, 300.308, and 300.346). The importance of ESY services and the
requirements related to addressing the need for those services is
included under Sec. 300.309. Therefore, no additional provisions are
warranted in this section.
With respect to the comment regarding the role of the regular
education teacher, the IDEA Amendments of 1997 require that at least
one regular education teacher of the child be a member of the child's
IEP team if the child is or may be participating in the regular
education environment.
The development of an interim IEP (or the use of a diagnostic
placement, on a case-by-case basis) may be appropriate for an
individual child with a disability if there is some question about the
child's special education or related services needs. However, it would
not be consistent with the requirements of this part for an LEA to
adopt an across-the-board policy of developing interim IEPs for all
children with disabilities. Clearly, in any case in which the IEP for a
child with a disability does not seem to effectively address the needs
of the child, the IEP team should be reconvened (at the request of the
child's parent or teacher(s)) to reconsider the nature and scope of the
IEP.
Changes: None.
Comment: A few comments were received related to the statement of
the present levels of educational performance in the IEP
(Sec. 300.347(a)(1)), including requesting that (1) the statement
include the results of any independent assessment that has been done,
and any reasons the LEA has for not accepting the assessment; and (2)
the provision requiring a description of how the child's disability
affects the child's involvement in the general curriculum be deleted.
One commenter recommended that this requirement and the provision on
goals and objectives in Sec. 300.347(a)(2) be revised to address the
concept of ``meaningful'' participation in the general curriculum.
Commenters also requested that, in the requirements for a description
of how a preschool child's disability affects the child's participation
in appropriate activities, the term ``appropriate activities'' be
clarified or examples given.
A number of comments were received regarding the ``statement of
measurable annual goals, including benchmarks or short-term
objectives'' (Sec. 300.347(a)(2)). Several commenters requested that
the term ``benchmarks'' be defined or clarified or that a note be added
to include examples, and that the term be distinguished from ``short-
term objectives.'' Other commenters requested that (1) the term
``measurable'' apply to short-term objectives and not to annual goals,
(2) the regulation clarify if ``measurable'' means statements of the
amount of progress expected; (3) a child's report card be used to
report annual goals; and (4) a provision be added requiring the IEP
team to be reconvened if the benchmarks indicate that the child is not
making satisfactory progress.
Comments were received on Sec. 300.347(a)(2)(i) (regarding enabling
a child to be involved in and progress in the general curriculum), as
follows: (1) make the provision clearer, including requiring that the
LEA list, for each goal and objective, each obstacle to full, effective
participation in the general curriculum, and justify use of the
resource room instead of supports in the regular classroom, and (2)
clarify what the expectations are for children with significant
cognitive disorders.
Discussion: It is important that the statement of a child's present
levels of educational performance be based on current, relevant
information about the child, that is obtained from a variety of
sources, including (1) the most recent reevaluation of the child under
Sec. 300.536, (2) assessment results from State and district-wide
assessments, (3) inputs from the child's special and regular education
teachers, and (4) information from the child's parents.
(Sec. 300.346(a)(1)). If an independent educational evaluation has been
conducted, the results of that evaluation also must be considered if it
meets agency criteria for such evaluations. (Sec. 300.502(c)(1)).
Consideration of all of the information described above is inherent
in the requirement that the IEP include ``a statement of the present
levels of educational performance.'' Therefore, it is not necessary to
amend the regulation to address this requirement.
The provision in Sec. 300.347(a)(1)(i) that requires a description
of how a child's disability affects the child's involvement in the
general curriculum (i.e., the same curriculum as for nondisabled
children) is a statutory requirement and cannot be deleted. The
requirement is important because it provides the basis for determining
what accommodations the child needs in order to participate in the
general curriculum to the maximum extent appropriate.
A basic assumption made in both the statute and these final
regulations is that the programming and services for each
``individual'' child would be tailored to address the child's unique
needs that impede the child's ability to make meaningful progress in
the general curriculum. (As explained elsewhere in this attachment, the
reference to the general curriculum in Sec. 300.347(a)(2) has been
modified to clarify that the general curriculum is the same curriculum
for nondisabled children.)
With respect to preschool-aged children, the term ``appropriate
activities,'' as used in Sec. 300.347(a)(1)(ii), includes activities
that children of that chronological age engage in as part of a formal
preschool program or in informal activities (e.g., coloring, pre-
reading activities, sharing-time, play time, and listening to stories
told or read by the parent or pre-school teacher). In order to
recognize that for some preschool-aged children appropriate goals will
be related to participation in appropriate
[[Page 12593]]
activities, as these children are not of an age for which there is not
a general curriculum for nondisabled children, a change should be made
to Sec. 300.347(a)(2).
A delineation and description of the difference between
``benchmarks'' and ``short term objectives'' is included in Appendix A.
Regarding the commenter's request that the LEA (1) list obstacles
to the child's full, effective participation in the general curriculum,
and (2) justify the use of a resource room instead of supports in the
regular classroom, no further regulation will be provided. Parents are
equal members of their child's IEP team, and can participate in the
discussion about whether there are any obstacles to ensuring the
child's full and effective participation in the general curriculum. In
any case in which the parents are not satisfied with the outcome of the
IEP meeting, they have avenues available to them under both the Act and
regulations for redressing their concerns.
See comments and discussion in Sec. 300.550 related to children
with significant cognitive disorders.
Changes: Section 300.347(a)(2)(i) has been revised to clarify that
``general curriculum'' is the same curriculum as for nondisabled
children and to recognize that a general curriculum is not available
for all preschool-aged children.
Comment: With respect to the provision in Sec. 300.347(a)(3)
(related to describing services to be provided to a child, or on behalf
of the child * * *), a few commenters requested clarification of the
term ``on behalf of the child.'' Commenters also recommended that, in
the ``statement of program modifications or supports for school
personnel,'' the regulation clarify that ``staff training'' is one form
of program support, and added that a necessary support service for
staff can often be obtained more easily if it is identified as an IEP
service.
A few commenters recommended that, in order to ensure full access
to the general curriculum, Sec. 300.347(a)(3)(ii) be amended to state
that a child's involvement and progress in the general curriculum be
``to the maximum extent appropriate to the needs of the child.'' Other
commenters requested that the provision in Sec. 300.347(a)(3)(ii)
(related to a child's participation in extracurricular activities) be
deleted because it is inconsistent with Part B. Commenters also
requested that the regulations clarify that participation in
extracurricular activities is not a part of the child's educational
program, and that such participation is subject to the same rules as
other children.
With respect to Sec. 300.347(a)(4) (an explanation of the extent to
which the child will not participate with nondisabled children), a few
commenters recommended that the provision be deleted, or that it be
stated in positive terms (extent to which the child ``will''
participate with nondisabled children). Commenters also stated that
documenting what will not happen is burdensome paperwork.
Discussion: As used in Sec. 300.347(a)(3), the term ``on behalf of
the child'' includes, among other things, services that are provided to
the parents or teachers of a child with a disability to help them to
more effectively work with the child. For example, as used in the
definition of ``related services'' under Sec. 300.24, the term ``
`parent counseling and training' means (i) Assisting parents in
understanding the special needs of their child * * * and (iii) Helping
[them] to acquire the necessary skills that will allow them to support
the implementation of their child's IEP or IFSP.''
Supports for school personnel could also include special training
for a child's teacher. However, in order for the training to meet the
requirements of Sec. 300.347(a)(3), it would normally be targeted
directly on assisting the teacher to meet a unique and specific need of
the child, and not simply to participate in an inservice training
program that is generally available within a public agency.
In order to ensure full access to the general curriculum, it is not
necessary to amend Sec. 300.347(a)(3)(ii) to clarify that a child's
involvement and progress in the general curriculum must be ``to the
maximum extent appropriate to needs of the child.'' The
individualization of the IEP process, together with the new
requirements related to the general curriculum, should ensure that such
involvement and progress is ``to the maximum extent appropriate to the
needs of the child.''
The provision in Sec. 300.347(a)(3)(ii) related to participation in
``extracurricular and other nonacademic activities'' is statutory.
The provision in Sec. 300.347(a)(4) (that requires a statement of
the extent to which a child with disabilities will not participate with
nondisabled children) is also a statutory requirement and cannot be
deleted. The basic principle underlying this requirement is that
children with disabilities will be educated in the regular education
environment along with their nondisabled peers, and that these children
are only removed from that environment if it is determined that they
cannot be appropriately served in the regular education environment,
even with the use of supplementary aids and services.
This new provision is designed to ensure that each IEP team
carefully considers the extent to which a child can be educated with
his or her nondisabled peers; and if the team determines that the child
cannot participate full time with nondisabled children in the regular
classroom and in the other activities described in
Sec. 300.347(a)(3)(ii), the IEP must include a statement that explains
why full participation is not possible.
If (for example) a child needs speech-language pathology services
in a separate setting two to three times a week, but will otherwise
spend full time with nondisabled children in the activities described
in Sec. 300.347(a)(4), the ``explanation'' would require only the
statement described in the preceding sentence. A similar explanation
would be required for any other child with a disability who, in the
judgement of the IEP team, will not participate on a full time basis
with nondisabled children in the regular class. Thus, while the IEP
needs to clearly address this situation, the required explanation does
not have to be burdensome.
Changes: None.
Comment: A few comments were received on Sec. 300.347(a)(5)
(related to State or district-wide assessments), including requesting
that: (1) the regulations clarify that if the individual modifications
necessary for a child to participate in the assessment are not known at
the time of the IEP meeting, a subsequent meeting be required to make
this determination, as long as the decision is made before the
assessment is conducted; and (2) an alternate assessment not be
construed as an exemption and a separate assessment system, but,
rather, that the provision in Sec. 300.347(a)(5)(ii)(B) be amended to
require a statement of how the child will be included in the State or
district-wide assessment program with an alternative assessment.
Discussion: If the individual modifications necessary for a child
to participate in the assessment are not known at the time of the IEP
meeting, it would be necessary for a subsequent meeting to be conducted
early enough to ensure that any necessary modifications are in place at
the time the assessment is administered. It is not necessary, however,
to add a regulation to address this matter.
The IDEA Amendments of 1997 require that all children with
disabilities be included in general State and
[[Page 12594]]
district-wide assessment programs, with appropriate accommodations,
where necessary. (Sec. 300.138). In some cases, alternate assessments
may be necessary, depending on the needs of the child, and not the
category or severity of the child's disability.
Changes: None.
Comment: Several comments were received on Sec. 300.347(a)(6)
(related to the projected date for beginning services and modifications
and their anticipated frequency, location, and duration). A few
commenters requested that the term ``anticipated'' be defined so that
it does not diminish an LEA's obligation to provide services. Some
commenters requested that the term ``location'' be defined as the
placement on the continuum and not the exact building where the IEP
service is to be provided, especially if the service is not available
in the LEA and must be provided via contract. Other commenters
similarly stated that a note be added clarifying that ``location''
means the general setting in which the services will be provided and
not a particular school or facility.
Discussion: Use of the term ``anticipated'' to diminish the
agency's obligation to provide services would be inconsistent with the
requirements of this part. Moreover, a public agency could not alter
the basic nature and scope of the child's IEP without reconvening the
child's IEP team.
The ``location'' of services in the context of an IEP generally
refers to the type of environment that is the appropriate place for
provision of the service. For example, is the related service to be
provided in the child's regular classroom or in a resource room?
Changes: None.
Comment: With respect to Sec. 300.347(a)(7) (related to a statement
of how a child's progress toward annual goals will be measured and
reported), commenters requested that a definition of ``progress
report'' be added; and stated that the provision is burdensome, and
should be changed to require that report cards for children with
disabilities contain information about the child's progress in meeting
annual goals.
Commenters also requested that the regulations (1) clarify the
manner and frequency in which parents are kept informed of their
child's progress; (2) clarify the extent to which this requirement can
be met in writing as opposed to conducting an IEP meeting; (3) require
a detailed written narrative report of how a child is progressing
toward meeting IEP objectives instead of using a grade, because a grade
is related to the system and not the child, and gives no indication of
what is right or wrong; and (4) include a provision requiring action to
be taken if satisfactory progress in not being made.
Discussion: It is not appropriate or necessary to include a
definition of ``progress report'' because that term is not used in
either the statute or these final regulations. The provision in
Sec. 300.347(a)(7)(ii) is incorporated verbatim from the statute. No
additional burden was added by the NPRM or these final regulations.
Under the statute and regulations, the manner in which that
requirement is implemented is left to the discretion of each State.
Therefore, a State could elect to ensure that report cards used for
children with disabilities contain information about each child's
progress toward meeting the child's IEP goals, as suggested by
commenters, but would not be required to do so.
With respect to the frequency of reporting, the statute and
regulations are both clear that the parents of a child with a
disability must be regularly informed of their child's progress at
least as often as parents are informed of their nondisabled children's
progress.
Requiring a ``detailed written narrative'' of how a child is
progressing toward meeting the IEP objectives, as suggested by a
commenter, could add an unnecessary burden. However, the commenter's
concern about using a grade to designate a child's progress in meeting
the IEP objectives in some cases may be valid because a grade does not
always lend itself to sufficiently describing progress toward the
annual goals. The statute and regulations make clear that a written
report is sufficient, although in some instances, an agency may decide
that a meeting with the parents (which does not have to be an IEP
meeting) would be a more effective means of communication.
The agency must ensure that whatever method, or combination of
methods, is adopted provides sufficient information to enable parents
to be informed of (1) their child's progress toward the annual goals,
and (2) the extent to which that progress is sufficient to enable the
child to achieve the goals by the end of the year.
Generally, reports to parents are not expected to be lengthy or
burdensome. The statement of the annual goals and short term objectives
or benchmarks in the child's current IEP could serve as the base
document for briefly describing the child's progress.
Changes: None.
Comment: A number of comments were received on Notes 2 through 5
(which focus on matters related to the child's participation in the
general curriculum, the expected impact on the length and scope of the
IEP from such participation and from discussing teaching methodologies,
and reporting to parents) are addressed in the following sections of
this analysis. Some commenters requested that all notes be deleted.
Other commenters requested that Notes 2, 3, and 4 be incorporated into
the regulations. A few commenters recommended that for Notes 2 and 3,
the regulations define the terms ``adaptations,'' ``modifications,''
``accommodations,'' and ``adjustments.''
Regarding Note 3, some of the commenters recommended deleting the
idea that the general curriculum is not intended to significantly
increase the size of the IEP. One commenter recommended replacing the
word ``accessing'' with ``fully participating in'' the general
curriculum. The commenter stated that the language in the note (from
the House Committee Report) could be used by LEAs as a basis for
limiting the use of the IEP as a tool for enabling children with
disabilities to participate fully in the general curriculum. Other
commenters recommended that Note 3 be deleted.
Discussion: The IDEA Amendments of 1997 emphasize providing greater
access by children with disabilities to the general curriculum and to
educational reforms, as an effective means of ensuring better results
for these children. Both the Senate and House Committee Reports on Pub.
L. 105-17 state that:
The Committee wishes to emphasize that, once a child has been
identified as being eligible for special education, the connection
between special education and related services and the child's
opportunity to experience and benefit from the general education
curriculum should be strengthened. The majority of children
identified as eligible for special education and related services
are capable of participating in the general education curriculum to
varying degrees with some adaptations and modifications. This
provision is intended to ensure that children's special education
and related services are in addition to and are affected by the
general education curriculum, not separate from it. (S. Rep. No.
105-17, p. 20; H.R. Rep. No. 105-95, p. 99 (1997))
These are important principles to keep in mind when implementing
the new IEP requirements. However, in light of the general decision to
remove notes from the final regulation, Note 2 would be removed.
The concepts in the committee reports cited in Note 3 also are
valid. The new focus of the IEP is intended to address the
accommodations and adjustments necessary to enable children with
disabilities to be able to participate in
[[Page 12595]]
the general curriculum to the maximum extent appropriate. Although the
annual goals and short term objectives (and the service accommodations
described above) would be basic components of the IEP, it would not be
appropriate for the IEP to include specific details related to the
general curriculum itself (and to daily lesson plans).
Generally, the overall length of the IEP should not be greatly
affected by including relevant information about the accommodations and
adjustments needed by the child, along with the other required
information. But the IEP should provide sufficient information
necessary to enable parents, regular education teachers, and all
service providers to understand what is required to effectively
implement its provisions. However, consistent with the general decision
made with respect to notes, Notes 2 and 3 would be deleted.
Because Note 3 has been deleted, it is not necessary to replace the
word ``accessing'' with ``fully participating in'' the general
curriculum. Clearly, the intent of the IDEA is full participation of
each child with a disability in the general curriculum to the maximum
extent appropriate to the needs of child; and the IDEA Amendments of
1997, as reflected in these final regulations, have given greater
emphasis to that intent.
It is not necessary to include a regulatory definition of the terms
``adaptations,'' ``modifications,'' ``accommodations,'' and
``adjustments.'' The terms are essentially self-explanatory, and may
overlap to some extent.
Certain changes may need to be made in a regular education
classroom to make it possible for a child with a disability to
participate more fully and effectively in general curricular activities
that take place in that room. These changes could involve (for example)
providing a special seating arrangement for a child; using professional
or student ``tutors'' to help the child; raising the level of a child's
desk; allowing the child more time to complete a given assignment;
working with the parents to help the child at home; and providing extra
help to the child before or after the beginning of the school day.
``Modifications'' or ``accommodations'' could involve providing a
particular assistive technology device for the child, or modifying the
child's desk in some manner that facilitates the child's ability to
write or hold books, etc.
Changes: Notes 2 and 3 have been removed.
Comment: Several comments were received on Note 4 (related to
teaching and related services methodologies). A few commenters
expressed support for Note 4, and stated that the note should be added
to the regulations. Other commenters requested that the note be
deleted. Some of these commenters stated that, in some instances, it
may be appropriate to include teaching methods and approaches in the
IEP, and added that when methodologies differ significantly, one
approach may be appropriate while others are inappropriate, based on
the unique needs of each individual child. Other commenters pointed out
that methodologies are an inherent part of the definition of special
education, and it would be inconsistent with the definition to not
include them in the IEP.
With respect to Note 5 (i.e., that the reporting provision in
Sec. 300.347(a)(7)(ii), related to the child's progress on the annual
goals, is intended to be in addition to regular reporting for all
children), a few commenters expressed appreciation for the provision.
Some commenters stated that the note be deleted. Other commenters
recommended that the note either be deleted, or changed to state that
the provision in Sec. 300.347(a)(7)(ii) may be incorporated as part of
the regular reporting to all parents.
Discussion: In some cases, it may be appropriate to include
teaching methods and approaches in a child's IEP. As used in the
definition of ``special education'' under Sec. 300.26, the term
``specially-designed instruction'' means ``adapting, as appropriate to
each eligible child under this part, the content, methodology, or
delivery of services * * * (i) to meet the unique needs of an eligible
child under this part that result from the child's disability * * *''
In general, however, specific day-to-day adjustments in
instructional methods and approaches that are made by either a regular
or special education teacher to assist a disabled child to achieve his
or her annual goals would not normally require action by the child's
IEP team.
With respect to Note 5 (that the reporting provision in
Sec. 300.347(a)(7)(ii) is intended to be in addition to regular
reporting for all children), as addressed earlier in this attachment,
the report described in Sec. 300.347(a)(7)(ii) may be incorporated in
the regular reporting to all parents. Therefore, Note 5 is not needed.
Changes: Notes 4 and 5 have been deleted.
Comment: Several comments were received on the transition services
provision in Sec. 300.347(b)(1), including requests that the
regulations: (1) clarify what is meant by transition services for 14
year-old students; (2) add ``daily living'' and independent living'' to
the example in paragraph (b)(1)(i) because transition is much broader
than employment; and (3) require that transition plans analyze and
report the prospect of a student benefiting from higher education and
if so what kind; and if vocational education is recommended and not
general higher education, the transition plans specify the reason why
general higher education is not a meaningful alternative.
A few commenters recommended that language be added to more clearly
distinguish between ``a statement of the transition service needs'' of
a student at age 14, and ``a statement of needed transition services''
at age 16. The commenters included a proposed definition that requires
the identification of targeted post-school activities.
Discussion: The terms ``a statement of the transition service
needs'' and ``a statement of needed transition services'' are
incorporated verbatim from the statute. The purpose of ``a statement of
the transition service needs'' is to focus on the planning of a
student's courses of study during the student's secondary school
experience (e.g., whether the student will participate in advanced
placement or vocational education courses).
With respect to a statement of needed transition services, the
focus is on the student's need for such services as he or she moves
from school to postschool experiences, and any linkages that may be
needed. These statements, as with the other components of the IEP, must
be individualized in accordance with the needs of the student.
The Department has invested considerable resources in providing
technical assistance in the area of transition services, and has a
number of technical assistance resources available to public agencies
in implementing these statutory provisions.
Changes: None.
Comment: A number of comments were received related to the
provision in Sec. 300.347(b)(2), that requires that if the IEP team
determines that services are not needed in one or more of the areas
specified in the definition of transition services, the IEP must
include a statement to that effect and the basis upon which the
determination was made. These commenters recommended that the provision
be deleted because it is not statutory, not needed, and adds
unnecessary and excessive paperwork.
[[Page 12596]]
Discussion: It is appropriate to remove the provision in
Sec. 300.347(b)(2) because, as stated by the commenters, the provision
is not statutory and adds unnecessary paperwork.
That provision was based on the definition of ``transition
services'' that was in effect prior to June 4, 1997, and did not
account for the change in the definition of ``transition services''
that was made by the IDEA Amendments of 1997.
The ``prior law'' definition mandated the inclusion of specific
components under the coordinated set of activities described in the
definition. In recognition that all students with disabilities may not
require services in all of the mandated areas, the final regulations
implementing that provision (published in 1992) included a statement
that ``If the IEP team determines that services are not needed in one
or more of the areas specified in [the definition of transition
services], the IEP must include a statement to that effect, and the
basis upon which the determination was made.'' However, while the new
definition of ``transition services'' added by Pub L. 105-17 includes
the same components as in prior law, the provision requiring the
inclusion of all components in a student's IEP was removed.
Changes: Sec. 300.347(b)(2) has been deleted.
Comment: Comments were received related to Notes 1, 6, and 7
following Sec. 300.347 of the NPRM, all of which focus on the
transition services requirements. Some commenters recommended that all
three notes be deleted. Other commenters recommended that Note 7 be
modified to encourage public agencies to begin transition services
before age 14. A few commenters stated that Note 7 is not needed
because the regulations are already clear.
Discussion: Consistent with the Department's decision to not
include notes in the final regulations, the notes should be deleted.
Changes: Notes 1, 6, and 7 have been deleted.
Comment: With respect to the transfer of rights at the age of
majority (Sec. 300.347(c)), one commenter stated that the provision
should be deleted. Another commenter stated that there is general
confusion about this provision, especially when parents are unable
financially or unwilling to seek legal guardianship for their child,
and added that schools need guidance. A commenter asked, how do LEAs
determine which students get transfer rights at age 18; and once
transferred, does the LEA still have to notify the parents.
Another commenter requested that the regulations allow a student to
authorize the continued participation of the student's parent or
guardian after the age of majority to develop, review, or revise an
IEP, and added that if the student authorizes parent participation, the
parent should be considered a member of the IEP team.
Discussion: The provision at Sec. 300.347(c) is statutory. Whether
or not rights transfer at the age of majority depends on State law,
and, consistent with Sec. 300.517, whether or not the student has been
determined incompetent under State law. State law also determines what
constitutes the age of majority in that jurisdiction. The discussion
concerning Sec. 300.517 in this attachment provides a fuller
explanation of the provision concerning the transfer of rights at the
age of majority. Generally, a public agency will satisfy
Sec. 300.347(c) if, at least one year before the student reaches the
age of majority under State law, the agency informs the student of the
rights that transfer at the age of majority (and includes a statement
to that effect in the IEP). If the public agency receives notice of the
student's legal incompetency, so that no rights transfer to the student
at the age of majority, the IEP need not include this statement.
The composition of the IEP team is discussed in Sec. 300.344. There
is nothing in the regulation that would prevent a student to whom
rights have been transferred at the age of majority from exercising his
or her discretion under Sec. 300.344(a)(6) to include in the IEP team a
parent as an individual with knowledge regarding the child.
Changes: None.
Private School Placements by Public Agencies (Sec. 300.349)
Comment: Some commenters suggested that Sec. 300.349(a) be amended
to require a public agency to conduct a subsequent IEP meeting before
or shortly after actual enrollment with the participation of a
representative of the private school.
A few commenters objected to the requirement in Sec. 300.349(a)(2)
that the public agency ensure that a representative of a private school
or facility at which a disabled student is publicly-placed or referred
must attend the initial IEP meeting initiated by the public agency.
These commenters recommended that a private school representative be
invited but not be forced to attend, since distance could prevent that
individual from attending.
Another recommendation made by commenters was that private school
staff should not be required to attend the IEP meeting required under
Sec. 300.349(a)(2), but that the IEP team should be allowed to confer
with private school staff after the meeting. One commenter asked
whether if the private school initiates an IEP meeting, all of the
individuals identified in Sec. 300.344 must participate.
Another commenter was concerned that this section implies that the
team has predetermined placement, and recommended requiring that a
second meeting should be held with private school staff to determine if
they could provide the services.
One commenter also indicated that Sec. 300.349(b)(2)(ii) is
confusing, because it suggests that if either the parent or public
agency disagrees with the changes proposed by the private school, those
changes will not be implemented. This commenter also questioned why
either party should have veto authority, and requested clarification
regarding the responsibility to request a hearing. However, another
commenter objected that this section gives a private school veto
authority over a decision of the IEP team.
One commenter also objected to the use of ``must ensure'' in
Sec. 300.349(a) and (b), and recommended that more qualified language
be substituted. Another commenter requested clarification that parents
have the right to be reimbursed for costs incurred as a result of their
participation at IEP meetings associated with their children's public
placements at private schools or facilities.
Discussion: Section 612(a)(10)(B) of the Act makes clear that, as a
condition of eligibility for receipt of Part B funds, States must
ensure that children with disabilities placed in or referred to private
schools or facilities by public agencies receive special education and
related services, in accordance with an IEP, at no cost to their
parents. This statutory requirement substantially reflects prior law in
this area. Section 300.401 also provides that IEPs for children with
disabilities who are publicly placed at or referred to private schools
must meet the requirements of Secs. 300.340-300.350.
Because these disabled children are publicly-placed or referred to
private schools or facilities as a means of ensuring that they are
provided FAPE, it would not be appropriate to change the regulatory
language in the manner suggested by these commenters. The regulation
gives public agencies and private schools and facilities some
flexibility in the manner in which IEP
[[Page 12597]]
meetings are conducted; however, there is no need to require additional
meetings, since these meetings can be initiated by the public agency or
requested by the private school or facility at any time.
Regarding concerns about participation of representatives of
private schools at meetings to develop the child's IEP,
Sec. 300.349(a)(2) provides that before a child with a disability is
placed or referred to a private school or facility, a representative of
that private school must be invited to the meeting to develop the
student's IEP. However, if the private school representative is unable
to attend in person, the public agency must use other methods to ensure
that individual's participation at the meeting, including individual or
conference telephone calls. Therefore, this regulation does not require
participation of a private school representative if that individual is
unable to attend the IEP meeting initiated by the public agency.
If a public agency initiates an IEP meeting in connection with a
disabled child's placement at or referral to a private school or
facility, the requirements of Sec. 300.344 regarding participants at
meetings apply. However, after the disabled child enters the private
school or facility, Sec. 300.349(b)(1) provides that the private school
or facility, at the public agency's discretion, may initiate and
conduct meetings for purposes of reviewing or revising the child's IEP.
Section 300.344 applies to all IEP meetings for which a public agency
is responsible, including those conducted by a private school or
facility for a publicly-placed child with a disability.
If a public agency exercises its discretion under
Sec. 300.349(b)(1) to permit the private school or facility to initiate
and conduct certain IEP meetings, Sec. 300.349(b)(2) specifies that the
public agency is still responsible for ensuring that the parents and a
public agency representative are involved in those IEP decisions and
agree to any changes in the child's program before they are
implemented.
Section 300.349(b) does not afford veto authority either to the
parents and the public agency, or to the private school, if there is a
disagreement about the IEP for the child to be implemented at the
private school. This is equally true for IEPs developed for public
placements of children with disabilities at private schools.
Further, Sec. 300.349(c) makes clear that the public agency is
ultimately responsible for ensuring that the publicly-placed disabled
student receives FAPE. Therefore, regardless of whether the public
agency initiates meetings for the purpose of reviewing and revising
IEPs of children with disabilities publicly-placed at private schools
or facilities, the public agency must ensure that the child's IEP is
reviewed at least once every twelve months, and that the child's
placement at the private school or facility is in accordance with that
child's IEP.
If the public agency disagrees with changes proposed by the private
school, the public agency nevertheless remains responsible for ensuring
that the student receives an appropriate program. If the private school
or facility is unwilling to provide such a program, the public agency
either must ensure that the student's IEP can be implemented at that or
another private school or facility, or must develop an appropriate
public placement for the child to address that child's needs. In all
instances, the child's placement at the private school or facility must
be based on the child's IEP, and that placement must be the LRE
placement for the child.
The commenter's assumption that normal due process rights would
apply is correct. The due process rights of Part B are available to
parents and public educational agencies to resolve issues such as the
appropriateness of the child's program at the private school, but
representatives of private schools or facilities at which children with
disabilities are publicly placed or referred do not have due process
rights.
Regarding a parent's right to reimbursement for costs associated
with their child's private school placement, Sec. 300.401 reflects the
statutory requirements of section 612(a)(10)(B) and requires that a
disabled student's placement at a private school by a public agency
must be at no cost to the child's parents, and public agencies must
ensure that all of the rights guaranteed by Part B are afforded to
publicly-placed children with disabilities and their parents. The ``at
no cost'' requirements of the Act also would require public agencies to
reimburse parents for transportation and other costs associated with
their participation at IEP meetings conducted in a geographic area
outside of the jurisdiction of the LEA, and such expenditures
traditionally have been considered the responsibility of the public
agency. See discussion under Sec. 300.24 of this attachment.
Changes: None.
Children With Disabilities in Religiously-Affiliated or Other Private
Schools
Comment: One commenter suggested that this section be amended to
require IEPs for all children with disabilities in the LEA's
jurisdiction who are placed by their parents at private schools,
regardless of whether these children receive services from the public
agency. Another commenter requested that the requirement for IEPs for
children with disabilities who are publicly-placed at private schools
be removed, and that requirements regarding service plans for children
with disabilities placed by their parents at private schools be
substituted and moved to Subpart D.
Discussion: There is no statutory authority to require public
agencies to develop IEPs for every child with a disability in their
jurisdiction placed by their parents at a private school, regardless of
whether that child receives services from the LEA. Section
612(a)(10)(A) of the Act requires States to make provision for the
participation of private school children with disabilities in programs
assisted or carried out under this part, through the provision of
special education and related services, to the extent consistent with
their number and location in the State.
Because private school children with disabilities do not have an
individual entitlement to services under Part B, it would be
inconsistent with the statute to require public agencies to develop
service plans for those private school children with disabilities who
do not receive services from the public agency. However, the
commenter's suggestion that proposed Sec. 300.350 should be deleted and
that a requirement for service plans for children with disabilities
parentally-placed at private schools should be substituted and moved to
Subpart D is reasonable.
Since private school children with disabilities are not entitled to
receive FAPE in connection with their private school placements (See
Sec. 300.403(a)), it is misleading to use the term IEP to refer to the
plans that are developed to serve them. IEPs must contain, among other
elements, the full range of special education and related services
provided to children with disabilities under these regulations.
By contrast, Sec. 300.455(b) makes clear that a private school
child with a disability receives only those services that an LEA
determines it will provide that child, in light of the services that
the LEA has determined, through the requirements of Secs. 300.453-
300.454, it will make available to private school children with
disabilities.
Therefore, proposed Sec. 300.350 should be deleted and its content
incorporated in Sec. 300.454 with appropriate revisions, and
Sec. 300.455(b) should be revised to reflect a new requirement for
service
[[Page 12598]]
plans for those private school children with disabilities in the LEA's
jurisdiction that the LEA has elected to serve in light of the services
it makes available to its private school children with disabilities in
accordance with the requirements of Secs. 300.453-300.454.
Changes: Proposed Sec. 300.350 has been deleted, and a new
Sec. 300.454(c) has been added to specify LEA responsibilities
regarding development of service plans for private school children.
Section 300.455(b) has been changed to reflect the new provision
regarding service plans for private school children with disabilities.
IEP--Accountability (Sec. 300.350)
Comment: Some commenters agreed with this regulation, while other
commenters recommended that the note either be revised or deleted. Some
commenters believe that both the section and note are inconsistent with
Congressional findings on low achievement and new performance
standards.
Commenters also recommended that the regulation be strengthened to
clarify (1) the district's obligation to monitor, review and revise the
IEP if it is not having the desired impact on the student's progress;
(2) the parent's responsibility to request an IEP meeting when progress
reports indicate that the child's IEP is not effective; (3) the extent
of the teacher's responsibility compared with that of the parent and
child; and (4) that public agencies and personnel will not be held
accountable if a child does not achieve the growth projected in annual
goals and benchmarks or objectives if they were implementing an IEP
that provided the child appropriate instruction, services and
modifications.
Other commenters were concerned about the potential negative effect
of this section on the effective implementation of transition services.
Discussion: Section 300.351 has been included in the IEP provisions
of the Part B regulations since those regulations first were issued in
1977. It continues to be necessary to make clear that the IEP is not a
performance contract and does not constitute a guarantee by the public
agency and the teacher that a child will progress at a specified rate.
Despite this, public agencies and teachers have continuing obligations
to make good faith efforts to assist the child in achieving the goals
and objectives or benchmarks listed in the IEP, including those related
to transition services.
In addition, it should be noted that teachers and other personnel
who must carry out portions of a child's IEP must be informed about the
content of the IEP and their responsibility regarding its
implementation. Because the clarification of this issue that was
previously included in the note to this section is essential to the
proper implementation of the Act's IEP requirements, a statement
regarding the responsibilities of public agencies and teachers to make
good faith efforts to ensure that a child achieves the growth projected
in his or her IEP has been included at the conclusion of this section.
In order to meet the new emphasis in the Act that children with
disabilities be involved in and progress in the general curriculum and
be held to high achievement standards, the IEP provisions must be
effectively utilized to ensure that appropriate adjustments can be made
to address performance issues as early as possible in the process.
This section does not limit a parent's right to complain and ask
for revisions of the child's IEP or to invoke due process procedures if
the parent feels that these efforts are not being made. Further, this
section does not prohibit a state or public agency from establishing
its own accountability systems regarding teacher, school or agency
performance if children do not achieve the growth projected in their
IEPs.
Changes: The note to this section has been removed. Section 300.351
is redesignated as Sec. 300.350 of these final regulations, and the
substance of the note has been added to this section.
Use of LEA Allocation for Direct Services (Sec. 300.360)
Comment: Very few comments were received regarding this section.
One comment recommended that the words ``or unwilling'' be added to
Sec. 300.360(a)(2) to correspond to the language of Sec. 300.360(a)(3)
of the current regulations. Another comment asked that the language in
the second paragraph in the note following Sec. 300.360 be updated to
substitute the word ``disabled'' for the word ``handicapped.'' This
comment also requested that a similar change be made to the note
following Sec. 300.552.
Discussion: Section 300.360(a) essentially incorporates the text of
the current regulatory provision verbatim, except with the minor
modifications contained in section 613(h)(1) of Pub. L. 105-17. The
legislative history makes clear that Sec. 613(h)(1) has been ``retained
without substantive alteration'' from prior law. (S. Rep. No. 105-17 at
15). It is true that under Sec. 300.360(a)(3) of the regulations, an
SEA may use funds that would have gone to an LEA for direct services if
the SEA finds that the LEA either is unable or unwilling to establish
and maintain programs of FAPE for children with disabilities. This
regulatory provision implemented section 614(d)(1) of prior law which
contained the reference to LEAs that were unwilling to establish and
maintain programs of FAPE. However, since these words have not been
retained in section 613(h)(1) with regard to an LEA's or State agency's
failure to establish and maintain programs of FAPE, yet remain in the
statute with regard to an LEA's failure to consolidate with other LEA's
in applying for Part B funds, it is not appropriate to make the change
requested by this comment.
Consistent with the general decision to not include notes in these
final regulations, the note following Sec. 300.360 should be deleted.
However, the substance of the note related to the SEA's responsibility
to ensure the provision of FAPE if an LEA elects not to apply for its
Part B funds, or the amount of Part B funds is not sufficient to
provide FAPE should be added to the text of the regulations because of
its importance in ensuring that the purposes of this part are
appropriately implemented.
A new paragraph also should be added to clarify, by referencing
Sec. 300.301, that the SEA may use whatever funding sources are
available in the State to carry out its responsibilities under
Sec. 300.360.
Regarding the note following Sec. 300.360, it is important to point
out that the language that uses ``handicapped'' instead of disabled was
taken verbatim from the original regulations for this program issued in
1977. Included in this note were direct quotations from the
Department's regulation implementing Section 504 of the Rehabilitation
Act of 1973 at 34 CFR Part 104, which has not yet been updated to
substitute the term ``disabled'' or ``disability'' for the term
``handicapped'' or ``handicap.'' While the term ``handicapped'' is not
consistent with current statutory language, it is not appropriate to
modify the quoted language in the notes until the terminology in the
Section 504 regulation is updated.
Changes: The substance of the note relating to SEA's
responsibilities to ensure FAPE when the LEA elects not to receive its
Part B funds, or there are not sufficient funds to ensure the provision
of FAPE has been added to the text of the regulation. The note has been
deleted. A reference is made to other funding sources under
Sec. 300.301.
[[Page 12599]]
Use of SEA Allocations (Sec. 300.370)
Comment: Several favorable comments were received regarding this
section. One comment supported paragraph (a)(4), which permits the use
of State agency allocations to assist LEAs with personnel shortages.
One comment requested that a new paragraph (c) be added to reflect the
statutory requirement ``that LEAs participate in the priority setting
for the allocation of these funds.'' One comment requested that a note
be added following this section to clarify that direct services ``can
include using the State allocation of Part B funds to help LEAs cover
unexpected and extraordinary costs of providing FAPE to a child with a
disability in any setting along the continuum.''
Discussion: There is no statutory requirement that would require a
State to obtain input from LEAs in setting priorities for how the State
agency allocation should be spent. So long as the expenditures are
consistent with the requirements of this part, States have discretion
to determine the manner in which the funds are allocated.
Regarding the suggestion that a note be added following
Sec. 300.370, consistent with the decision to not include notes in
these regulations, a note will not be added. However, the State agency
allocation may be used for direct and support services, including the
expenditure described in this comment. Nothing in this part would
preclude an SEA from using its State allocation to assist an LEA in
defraying the expenses of a costly placement for a student with a
disability if it is determined that such a placement is necessary to
ensure the provision of FAPE to that disabled student.
Changes: No change has been made in response to these comments. See
discussion of comments received under Sec. 300.712 regarding a change
to Sec. 300.370.
General CSPD Requirements (Sec. 300.380)
Comment: A number of comments were received regarding the
recruitment and training of hearing officers included as part of CSPD.
One comment recommended that Sec. 300.380(a)(2) regarding an adequate
supply of qualified special education, regular education, and related
services personnel be expanded to include hearing officers and
mediators.
Some commenters recommended that Sec. 300.381 include a provision
requiring each state ``to establish a council of parents, educators,
attorneys, hearing officers, and mediators to develop and oversee the
recruitment, training, evaluation, and continuing education of hearing
officers and mediators'' and to ensure that they receive pre-service
training and at least annual in-service training on special education
law and promising practices, materials and technology.
A number of commenters indicated that, in order for personnel to be
``qualified'' under this part or a State's CSPD, ``the personnel must
meet the State's legal licensing or certification requirements'' and
``must have the skills and knowledge necessary to ensure that personnel
are qualified to work with children with disabilities.'' Another
comment sought clarification regarding use of Part B funds for the
training of regular education personnel.
Consistent with the emphasis on implementation, one comment
recommended that Sec. 300.380(a)(4) be amended to require that a
State's CSPD be updated at least every two years, instead of at least
every five years, as stated in the NPRM, ``and as often as the quality
of education for children with disabilities within the State may
require.'' The comment also objected that the regulation provides that
States that have a State Improvement Plan under section 653 of the Act
have met their CSPD requirements. Therefore, the comment recommended
that Sec. 300.380(b) be deleted, and instead be replaced with the last
paragraph of the note following Sec. 300.135, which gives a State that
has a State Improvement Plan the option of using it to meet its CSPD,
if it chooses to do so.
Discussion: States must ensure that mediators and hearing officers
are appropriately trained and have the requisite knowledge and
expertise regarding the requirements of this part. Otherwise, the due
process rights of children with disabilities and their parents may not
be adequately safeguarded under this part.
With respect to mediators, section 615(e)(2)(A)(iii) requires that
SEA or LEA procedures for mediation ensure that the mediation is
conducted by a qualified and impartial mediator who is trained in
effective mediation techniques. Section 615(e)(2)(C) requires the State
to maintain a list of individuals who are qualified mediators and
knowledgeable in laws and regulations relating to the provision of
special education and related services to children with disabilities.
Under current regulations, public agencies must maintain a list of
impartial hearing officers and their qualifications. Further, the SEA's
responsibility under section 615 of the Act to ensure that the
procedural safeguard requirements of the Act are established and
implemented includes the responsibility to ensure that impartial due
process hearing officers are appropriately trained. In addition,
Sec. 300.370 makes clear that one of the support services for which the
Part B funds reserved for State level activities may be expended is the
training of hearing officers and mediators.
The comments regarding ensuring that personnel meet State licensing
or certification requirements or are otherwise qualified under this
part are addressed elsewhere in this attachment in the discussions of
qualified personnel and personnel standards. With regard to the
training of regular education personnel, consistent with a State's CSPD
responsibilities, the State must ensure an adequate supply of special
education, regular education, and related services personnel. Further,
the training of regular education personnel is necessary to the proper
administration of the Act and regulations, including carrying out the
Act's LRE provisions, and personnel development is an appropriate
expenditure of funds under this part and is one of the support services
for which the State level allocation under Sec. 300.370 may be
expended.
Finally, there is nothing in this part that would prevent a State
from updating its CSPD more frequently than at least every five years
if the State chooses to do so. Therefore, there is no reason to
incorporate the language from the second paragraph of the note
following Sec. 300.135 in place of Sec. 300.380(b), since
Sec. 300.380(b) gives a State that has a State Improvement plan under
section 653 the option of using it to satisfy its CSPD obligations, if
the State chooses to do so.
Changes: The section has been retitled ``General CSPD
requirements.''
Adequate Supply of Qualified Personnel (Sec. 300.381)
Comment: Only a few comments were received regarding this section.
Some commenters requested that a provision be added to Sec. 300.381(b)
``requiring the State to describe the strategies it will use to address
personnel vacancies and shortages'' identified under that section.
Another comment recommended that this section highlight shortages of
personnel to do behavioral assessments and programming. Another comment
recommended that additional language be included in Sec. 300.381
requiring additional recruitment strategies and fiscal arrangements to
ensure an adequate supply of qualified personnel.
Discussion: It is acknowledged that it is very important to ensure
that appropriately-trained and
[[Page 12600]]
knowledgeable individuals conduct behavioral assessments of children
with disabilities under this part. However, the obligation under
Sec. 300.381 is a general obligation to analyze State and local needs
for professional development, including areas in which there are
shortages, to ensure an adequate supply of qualified special education,
regular education, and related services personnel under this part.
Therefore, the regulation does not identify specific categories of
personnel. In addition, States already have the ability to develop
additional recruitment strategies and fiscal arrangements if they
determine that they are needed to address their particular personnel
needs.
Changes: None.
Improvement Strategies (Sec. 300.382)
Comment: One comment recommended that the name of this section be
changed to ``Comprehensive system strategies'' to avoid confusion with
Part D. Another comment recommended that the words ``content knowledge
and collaborative skills'' to meet the needs of infants and toddlers
and children with disabilities be expanded to specify which skills are
involved, and suggested that skills such as instruction, behavioral
management, communication, and collaboration be included.
One comment expressed concern that the section in the NPRM was not
sufficiently strong to ensure that States design their CSPD to ensure
that core instructional and related needs of children with disabilities
are appropriately addressed. One comment requested clarification
regarding which entity in the State is responsible for ensuring that
the requirements of Sec. 300.382 are met. One comment suggested that
the reference to behavioral interventions in Sec. 300.382(f) should be
changed to positive behavioral supports to be more consistent with
other provisions of these regulations.
Several comments were receive regarding Sec. 300.382(g),
particularly regarding the use of the phrase, ``if appropriate.'' One
comment requested clarification on how ``appropriate'' would be
defined, as well as guiding principles ``for directing the adoption of
promising practices.'' Another comment recommended that the phrase,
``if appropriate'' be eliminated when referring to the State's adoption
of promising practices and materials and technology.
One comment was particularly favorable about the requirement for
joint training of parents, special education and related services
providers, and general education personnel. Another comment recommended
that this section be expanded to include joint training of hearing
officers and mediators with parents and education personnel.
One comment recommended that this section be amended ``to require
reports to the Department by the SEA bi-annually, including a survey of
parents of students with IEPs regarding the effectiveness of the
strategies and other tools being taught to teachers,'' and that parents
``should also be given the chance to state what tools they think ought
to be taught'' to teachers. One comment recommended that a note be
added following this section to clarify that the assurance that regular
education and special education personnel be prepared means that ``they
must be required to be prepared rather than simply `offered the
opportunity.' ''
Discussion: There is no need to change the name of this section
since it is unlikely that, even if it were changed, it would reduce the
potential for confusion between CSPD responsibilities under Part B and
those under Part D. While the delineation of content and skills for
personnel serving infants and toddlers and children with disabilities
is important, inherent in CSPD is the obligation of each State to
identify its particular personnel development needs in light of factors
that are specific to each individual State. The same is true with
respect to strategies and needs. The CSPD is one of several mechanisms
that States have to ensure that children with disabilities receive
appropriate instruction and services consistent with the purposes of
this part; therefore, the regulations do not specify which needs must
be addressed through CSPD.
References throughout this part to State mean the SEA, unless the
State has designated an entity other than the SEA to carry out the
functions of this part. Regarding Sec. 300.380(f), that section is
directed at the State's enhancement of the ability of teachers and
others to use strategies, including behavioral interventions. The
regulatory language about behavioral interventions parallels the
language in section 614(d)(3)(B)(i) of the Act.
It also should be pointed out that the term behavioral
interventions is a broad term that includes positive behavioral
supports. Regarding the use of ``appropriate'' in Sec. 300.382(g), a
State's obligation to adopt promising educational practices, materials,
and technology is dependent on the State's needs. Hence, the use of the
words ``if appropriate'' in this regulation ensures States have
flexibility in this area.
The discussion of the role of hearing officers and mediators in
response to comments on Sec. 300.380 also applies to the suggestion on
joint training of parents and special education and related services
and general education personnel required by Sec. 300.382(j) of these
regulations. It is important to point out that there is nothing in this
part that would preclude a State from including hearing officers and
mediators in the joint training activities if it chooses to do so.
The comment's suggestion for additional reporting requirements has
not been accepted. While input from parents regarding the effectiveness
of personnel development strategies would be useful, the Department is
committed to reducing paperwork burdens rather than increasing them.
Finally, with regard to training of general education personnel,
Sec. 300.382(j) already requires the participation of these individuals
in joint training activities.
Changes: None.
Subpart D
Responsibility of SEA (Sec. 300.401)
Comment: Several commenters asked that Sec. 300.401(a)(3) specify
whether the standards that apply to private schools are limited to
those necessary for the comparable provision of special education and
related services to those provided in public agencies (for example, do
private schools have to comply with SEA personnel standards beyond the
qualifications needed to provide special education and related
services).
Discussion: Children with disabilities who are placed by public
agencies in private schools are entitled to receive FAPE to the same
extent as they would if they were placed in a public school. FAPE
includes not just the special education and related services that a
child with a disability receives, but also includes an appropriate
preschool, elementary and secondary school education in the State
involved and must be provided in conformity with the child's IEP.
The IDEA Amendments of 1997 made a number of changes to reinforce
the importance of the participation of children with disabilities in
the regular education curricula and the need for children with
disabilities to have the opportunity to receive the same substantive
content as nondisabled students. These include provisions that tie IEP
goals and objectives to the regular education curriculum (section
[[Page 12601]]
614(d)(1)(A)), establish performance goals and indicators for children
with disabilities consistent with those that a State establishes for
nondisabled children (section 612(a)(16)), and require the
participation of children with disabilities in the same general State
and district-wide assessments as nondisabled students (section
612(a)(17)).
Because of these changes in the statute and the confusion that has
existed over whether all aspects of the education provided by private
schools to publicly-placed children with disabilities had to meet the
standards that apply to public agencies, a change should be made in the
regulations to ensure that children who are publicly-placed in private
schools receive services consistent with the SEAs' statutory obligation
to ensure that FAPE is provided. SEAs must ensure that public agencies
that place children with disabilities in private schools as a means of
providing FAPE make sure that the education provided to those publicly-
placed children with disabilities meets all standards that apply to
educational services provided by the SEA and LEA that are necessary to
provide FAPE.
With respect to personnel standards, for example, this would mean
that all personnel who provide educational services (including special
education and related services and non-special education services) meet
the personnel standards that apply to SEA and LEA personnel providing
similar services. The responsibility for determining what constitutes
the appropriate personnel standard for any given profession or
discipline is a State and local matter and State and local officials
have great flexibility in exercising this responsibility. With regard
to special education and related services personnel, however, the
regulations provide some parameters for how personnel standards are
developed. (See, Secs. 300.21, 300.135, and 300.136).
Changes: A change has been made to specify that a child with a
disability placed by a public agency as the means of providing FAPE to
the child must receive an education that meets the standards that apply
to the SEA and LEA.
Implementation by SEA (Sec. 300.402)
Comment: Another issue raised by comment was whether the term
``public agency'' in Sec. 300.402(b) referred to just public schools or
included other agencies. Some commenters requested that the term
``applicable standards'' in that paragraph be clarified to include
application, compliance, on-site visits, monitoring, curriculum and
evaluation standards. Several commenters requested various expansions
of Sec. 300.402(c) such as adding a 120-day consultation period prior
to adoption of standards that apply to private schools, and requiring
consultation in all phases of the development and design of SEA
standards and compliance and monitoring procedures that apply to these
private schools.
At least one commenter requested a new provision be added
establishing a mechanism for appeals to the Secretary on standards that
an SEA wants to apply to private schools.
Discussion: The term ``public agency'' as used in these regulations
is defined in Sec. 300.22. The term ``applicable standards'' is
sufficient to encompass the variety of standards that SEAs may have
that apply to private schools accepting public agency referrals of
children with disabilities for the provision of FAPE. Further
regulation about how States provide opportunities for private schools
and facilities to participate in the development and design of State
standards that apply to them is inappropriate. States should have
flexibility in developing standards that meet the requirements of the
IDEA.
The standards that SEAs apply to private schools accepting public
agency referrals of children with disabilities for the provision of
FAPE are, so long as they meet the requirements of Part B and its
regulations, a State matter, so no appeal to the Secretary is
appropriate.
Changes: None.
Placement of Children by Parent if FAPE is at Issue (Sec. 300.403)
Comment: Some commenters stated that some school districts may be
using this provision as the basis for denying special education
services to children with disabilities voluntarily enrolled in a
private school and requested that the regulations make clear that these
children are covered by the provisions of the regulations regarding
participation of private school children in the Part B program.
Discussion: The statute in section 612(a)(10)(C)(i) is clear that
an LEA must provide for the participation of parentally-placed private
school children with disabilities in the Part B program with
expenditures proportionate to their number and location in the State,
even though the LEA is not otherwise required to pay the costs of
education, including special education and related services, for any
individual child with a disability who is voluntarily placed in a
private school under the terms of Sec. 300.403.
Changes: A change has been made to Sec. 300.403(a) to clarify that
the provisions of Secs. 300.450-300.462 apply to children with
disabilities placed voluntarily by their parents in private schools,
even though the LEA made FAPE available to those children.
Comment: One commenter requested that the regulations clearly state
whether a public agency must evaluate and develop an IEP for each
private school child with a disability each year in order to avoid
potential reimbursement claims.
Discussion: The new statutory provisions, incorporated in the
regulations in Sec. 300.403 (c), (d), and (e), provide that, as a
general matter for children with disabilities who previously received
special education and related services under the authority of a public
agency, the claim for reimbursement of a private placement must be made
before a child is removed from a public agency placement. It would not
be necessary for a public agency to develop an IEP that assumes a
public agency placement for each private school child each year. LEAs
do have ongoing, independent responsibilities under the child find
provisions of Secs. 300.125 and 300.451 to locate, identify and
evaluate all children with disabilities in their jurisdiction,
including children whose parents place them in private schools. This
would include scheduling and holding a meeting to discuss with parents
who have consented to an evaluation, the results of the evaluation, the
child's needs, and whether the child is eligible under Part B. (See
Secs. 300.320, and 300.530-300.535.)
In addition, the LEA must offer to make FAPE available if the child
is enrolled in public school. A new evaluation need not be performed
for each private school child each year, but evaluations for each
private school child must meet the same evaluation requirements as for
children in public agency placements, including the requirement for
reevaluation in Sec. 300.536. In addition, since LEAs must make FAPE
available to all children with disabilities in their jurisdiction
(Secs. 300.121, 300.300), public agencies must be prepared to develop
an IEP and to provide FAPE to a private school child if the child's
parents re-enroll the child in public school.
Changes: None.
Comment: Several commenters requested that paragraph (c) be revised
to prohibit reimbursement if the private placement is inappropriate,
which was a part of the Supreme Court's standard on reimbursement
announced in School Comm. of Burlington v. Department of
[[Page 12602]]
Ed. of Mass., 471 U.S. 359 (1985) (Burlington). Another commenter
requested that the term ``timely manner'' be defined.
Another commenter requested that the Department clarify that the
provisions of Sec. 300.403 (c), (d), and (e) apply only in situations
in which the child previously has received special education and
related services under the authority of a public agency. In other
situations, where the child has not yet been provided special education
and related services, the Department should recognize that hearing
officers and courts still retain broad equitable powers to award
relief, and will continue to apply the reimbursement standard in
Burlington.
Discussion: It is not in the public interest to require that public
funds be spent to support inappropriate private placements. For these
reasons, paragraph (c) should be revised consistent with the basic
standard for reimbursement articulated by the Supreme Court in the
Burlington and Carter cases. Since, as the Supreme Court made clear in
Carter, in instances where the school district has not offered FAPE,
the standard for what constitutes an appropriate placement by parents
is not the same as the standards States impose for public agency
placements under the Act, this new provision makes clear that parental
placements do not need to meet State standards in order to be
``appropriate'' under this requirement.
As a commenter noted, hearing officers and courts retain their
authority, recognized in Burlington and Florence County School District
Four v. Carter, 510 U.S. 7 (1993) (Carter) to award ``appropriate''
relief if a public agency has failed to provide FAPE, including
reimbursement and compensatory services, under section
615(l)(2)(B)(iii) in instances in which the child has not yet received
special education and related services. This authority is independent
of their authority under section 612(a)(10)(C)(ii) to award
reimbursement for private placements of children who previously were
receiving special education and related services from a public agency.
The term ``timely manner'' should not be defined, since what
constitutes timely provision of FAPE is best evaluated within the
specific facts of individual cases. (See, e.g., Secs. 300.342(b) and
300.343(b)).
Changes: Paragraph (c) has been revised to include the requirement
that the private placement by the parents must be appropriate (as
determined by a court or hearing officer) in order to be eligible for
reimbursement, and to make clear that a parental placement does not
need to meet the State standards that apply to education provided by
the SEA and LEAs in order to be found to be appropriate.
Comment: A number of commenters suggested definitions of various
terms used in Sec. 300.403(d) and (e) and other changes to the
provisions of these paragraphs, some of which would have made
recovering reimbursement more difficult for parents and others which
would have limited school districts' use of these provisions in defense
of a reimbursement claim.
Discussion: With the exception of making clear that the regulation
also applies when parents choose to enroll their child in a private
preschool program, no change is necessary. The regulation in
Sec. 300.403(d) and (e) reflects the statutory language, which balances
the interests of parents and public agencies. (See the explanation of
the definition of ``business day,'' under the discussion of comments to
Sec. 300.8, a term which is used in several places in these
regulations.)
Changes: Paragraph (c) has been revised to specify that the
reimbursement provisions of Sec. 300.403 also apply if parents of a
child with a disability who previously received special education and
related services under the authority of a public agency enroll the
child in a private preschool program.
Definition of ``Private School Children With Disabilities''
(Sec. 300.450)
Comment: Several commenters asked that the Department clarify
whether children with disabilities who are home-schooled are included
in the definition of ``private school children with disabilities''.
Discussion: State law determines whether home schools are ``private
schools.'' If the State recognizes home schools as private schools,
children with disabilities in those home schools must be treated in the
same way as other private school children with disabilities. If the
State does not recognize home schools as private schools, children with
disabilities who are home-schooled are still covered by the child find
obligations of SEAs and LEAs, and these agencies must insure that home-
schooled children with disabilities are located, identified and
evaluated, and that FAPE is available if their parents choose to enroll
them in public schools.
Changes: None.
Child Find for Private School Children With Disabilities (Sec. 300.451)
Comment: Some commenters stated that there have been major
difficulties in many areas of the country in ensuring that private
school children with disabilities are identified and evaluated. Some
commenters also noted the new statutory provision limiting the amount
of funds that must be spent on parentally-placed private school
children with disabilities based on the number of identified
parentally-placed private school children with disabilities creates an
additional need for timely and effective child find for this
population. These commenters requested that the regulation be revised
to require that consultation with appropriate representatives of
private school children occur before the public agency conducts child
find activities and to provide that child find activities for
parentally-placed private school children be done on the same or
comparable timetable as for public school children. Another commenter
requested that child find activities include children placed by their
parents in private residential facilities.
Discussion: The role of child find for parentally-placed private
school children is very important for services for this population.
Section 612(a)(10)(A)(i) and the regulations in Sec. 300.452 tie the
amount of money that will be used for parentally-placed private school
children with disabilities to the number of parentally-placed private
school children with disabilities in each LEA. Clearly, the adequacy of
the LEA's child find activities for parentally-placed private school
children with disabilities will be crucial to determining how many
children with disabilities are parentally-placed in private schools,
and consequently, the amount of funds that must be spent by an LEA on
special education and related services to parentally-placed private
school children with disabilities. For these reasons, LEAs should
consult with representatives of private school children with
disabilities on how to conduct child find activities for parentally-
placed private school children with disabilities in a manner that is
comparable, which would include timing, to child find for public school
children with disabilities.
LEAs are required to conduct child find activities for children
residing in their jurisdiction. Generally, as a matter of State law,
children are considered to reside in the home of their parents even if
they physically do not live there. Whether children who are in private
residential facilities are residing in the jurisdiction of an LEA when
that facility is within the boundaries of the LEA will be dependent on
State law.
Changes: The term ``religiously-affiliated'' has been replaced with
[[Page 12603]]
``religious,'' to more accurately reflect the types of schools. The
term ``public agency'' has been replaced with ``LEA,'' a technical
change. Paragraph (a) has been revised (see description of comments
received under Sec. 300.453 regarding that revision). A new paragraph
(b) has been added requiring public agencies to consult with
representatives of parentally-placed private school students with
disabilities on how to conduct child find activities for that
population in a manner that is comparable to that for public school
children.
Provision of Services--Basic Requirement (Sec. 300.452)
Comment: None.
Discussion: None.
Changes: Consistent with the comments, discussion, and changes
under Sec. 300.341, a new paragraph (b) has been added to Sec. 300.452
regarding the SEA's responsibility for ensuring that a services plan is
developed and implemented for each private school child with a
disability who has been designated to receive special education and
related services under this part.
Expenditures (Sec. 300.453)
Comment: One commenter asked for clarification that there is no
obligation to spend more than the total per capita Federal allocation
to the LEA, and use of State or local funds are not required, for
private school children. Another commenter requested that the note
following this section be integrated into the regulation, as it
provided valuable guidance to States. Several commenters were concerned
that LEAs were suggesting that no services needed to be provided to
private school students as a proportional share of the Federal funds
was being used to conduct evaluations of these children. Another
commenter asked whether a longstanding State program that allocates
funding to be used for private school children for certain special
education and related services and evaluations can be used to satisfy
the requirements of this section.
Several commenters noted the importance of determinations of the
number of parentally-placed private school children with disabilities
in calculating required expenditures and asked for specificity in how
this number is determined. Another commenter requested that the
Department require that each LEA separately account for funds used for
private school children with disabilities and clarify that these funds
are only to provide special education and related services and cannot
be used to carry out activities such as child find.
Discussion: It is important to clarify that there is a distinction
under the statute between the obligation to conduct child find
activities, including individual evaluations, for parentally-placed
private school children with disabilities, and the obligation to use an
amount of funds equal to a proportional amount of the Federal grant to
provide special education and related services to parentally-placed
private school children with disabilities. The obligation to conduct
child find, including individual evaluations, exists independently from
the services provision described in Secs. 300.452-300.456, and the
costs of child find activities, such as evaluations, may not be
considered in determining whether the LEA has spent the amount
described in Sec. 300.453 on providing special education and related
services to parentally-placed private school children with
disabilities.
The statute describes the minimum amount that must be spent on
these services and does not specify that only Federal funds can be used
to satisfy this obligation. Thus, if a State or LEA uses other funds to
provide special education and related services to private school
children, those funds can be considered in satisfying the provisions of
Sec. 300.453, so long as the services are provided in accordance with
the other provisions of Secs. 300.452-300.462.
The statute does not prohibit a State or LEA from spending
additional State or local funds to provide special education and
related services to private school children. To make this important
point, in light of the general decision to remove all notes from these
regulations, the note that followed this section in the NPRM should be
incorporated into this section as paragraph (d).
Determining the number of parentally-placed private school children
with disabilities is particularly important. Child find, which includes
locating, identifying and evaluating children, is an ongoing activity
that SEAs and LEAs should be engaged in throughout the year for all
children in order to meet the statutory obligations to ensure that all
children in the State are located, identified and evaluated and that
all children have the right to FAPE. The statute does not distinguish
between child find activities for children enrolled in public schools
and those conducted for children enrolled in private schools.
In addition, the importance of child find for determining the
amount to be spent on services for parentally-placed private school
children with disabilities also argues for clarity in the regulations
that child find activities for private school children with
disabilities must be comparable to child find activities conducted for
children in public schools. Further regulation also is necessary on
determining the number of parentally-placed private school children
with disabilities so as to eliminate the potential for disputes about
how to determine the number of private school children with
disabilities that will be used as the basis for the calculation and to
provide a clear standard for LEAs to meet. Possible alternative
standards for who to count, such as private school children referred
for evaluation, or private school children with disabilities who are
receiving services pursuant to Secs. 300.450-300.462 are not consistent
with the statutory language.
Since LEAs and SEAs are already counting children with disabilities
who are receiving special education and related services on December 1
or the last Friday in October of each year (the State decides which
date to use on a State-wide basis) for funding and data reporting
purposes, conducting the count of eligible parentally-placed private
school children with disabilities on that date as well is reasonable,
reduces the amount of double counting of private school children with
disabilities who move from one location to another, and gives States
the same flexibility they have with regard to counting children with
disabilities who are receiving services. Furthermore, this count will
provide the public agencies the basis on which they will be able,
consistent with Sec. 300.454, to plan for the services that will be
provided during the subsequent school year.
Changes: A new paragraph (c) has been added to Sec. 300.453 to
specify that the costs of child find activities for private school
children with disabilities may not be considered in determining whether
the LEA met the expenditures requirements of this section. A paragraph
(d) has been added to clarify that States and LEAs are not prohibited
from spending additional funds on providing special education and
related services to private school children with disabilities. The note
has been removed.
Section 300.451 has been revised to specify that child find
activities for parentally-placed private school children with
disabilities be comparable to child find activities for children with
disabilities in public schools.
Section 300.453 has been revised to add a new paragraph (b) that
specifies that each LEA consult with representatives of private school
children with disabilities to decide how to conduct the count of the
number of parentally-placed children with
[[Page 12604]]
disabilities in private schools on December 1 or the last Friday of
October for determining the amount that must be spent on providing
special education and related services for private school children for
the subsequent school year, and that the LEA ensure that count is
conducted.
Services Determined (Sec. 300.454)
Comment: Several commenters requested clarification of ``timely and
meaningful'' so that parents, private school representatives and LEAs
would have a better understanding of how this process works. Various
other suggestions included public notice of the consultation meetings,
public transcripts of those meetings, and requiring explanations of
refusals to provide service, and decisions on allocations of funds for
services for private school children.
Discussion: The needs of private school children with disabilities,
their number and their location will vary over time and, depending on
the circumstances in a particular LEA, will differ from year to year.
However, an annual consultation with representatives of private school
children is not required, since States and LEAs are best able to
determine the appropriate period between consultations based on
circumstances in their jurisdictions.
Paragraph (b)(3) specifies that consultation must take place before
decisions are made affecting the opportunities of private school
children with disabilities to participate in the State's special
education program which is assisted or carried out with Part B funds.
The regulations on this consultation process have not been amended, in
the expectation that all parties will treat others in the process with
reason and respect.
Changes: No change was made in response to these comments. See
discussion of comments received under Sec. 300.350 regarding a change
to Sec. 300.454.
Services Provided (Sec. 300.455)
Comments: Several commenters expressed concern that using the term
``IEP'' in this section added to confusion over whether private school
children served under these provisions were to receive all the services
they need, or just those services that had been decided through the
consultation process would be provided. Several suggested that a
different term, ``statement of special education and related services
to be provided'' be substituted. Other commenters objected to the
definition of a term ``comparable in quality'' not used in the statute.
Discussion: The use of the term ``IEP'' could result in confusion
about whether these children receive all the services they would have
received if enrolled in a public school. A different term, services
plan, will be used. However, to the extent appropriate given the
services that the LEA has selected through the consultation process
described in Sec. 300.454, that services plan must meet the
requirements for an IEP in order to ensure that the services are
meaningfully related to a child's individual needs. For example, in
almost all instances, the services plan developed for an individual
private school child with a disability would have to meet the
requirements of Sec. 300.347(a)(1)-(4), (6) and (7).
Whether those statements would also have to meet the requirements
of Sec. 300.347(a)(5), (b) and (c) would depend on the services that
are to be provided to the parentally-placed private school student with
a disability. Paragraph (c) provides useful guidance to LEAs and
parents that will prevent disputes. That content will be retained, but
the definition should be eliminated.
Changes: Paragraph (a) has been retitled ``General.'' Paragraph (b)
has been revised by referring to a services plan instead of an IEP and
by specifying that, for the services that are provided, the services
plan, to the extent appropriate, must meet the content requirements for
an IEP (Sec. 300.347) and be developed consistent with Secs. 300.342-
300.346. The useful content from paragraph (c) of the NPRM has been
incorporated into paragraph (a).
Location of Services; Transportation (Sec. 300.456)
Comment: Some commenters requested that the Department require
services to children in private schools be provided on-site, stating
that providing services at a neutral site is disruptive and time
consuming. Another asked for more specificity as to the phrase
``consistent with law.'' Several commenters objected to the treatment
of transportation in Sec. 300.456(b), some stating that there is no
individual right to transportation under the Act, while others noted
that providing transportation services could use all the funds
available for special education and related services. Others asked why
a certain related service (transportation) had been singled out for
special treatment.
Discussion: Decisions about whether services will be provided on-
site or at some other location should be left to LEAs, in consultation
with representatives of private school children. Although in many
instances on-site services are most effective, local considerations
should allow flexibility in this regard. A change should be made to
Sec. 300.454(b)(1) to make clear that where services are provided is
subject to consultation with representatives of private school
children.
The phrase ``consistent with law'' is statutory. As Note 1
following this section indicated, the Department's position, based on
the decisions of the Supreme Court in Zobrest v. Catalina Foothills
School Dist. (1993) and Agostini v. Felton (1997) is that there is no
Federal constitutional prohibition on providing publicly-funded special
education and related service on-site at private, including religious
schools. These decisions make clear that LEAs may provide special
education and related services on-site at religious private schools in
a manner that does not violate the Establishment Clause of the First
Amendment to the U.S. Constitution.
While the statute and regulation do not require the provision of
services on-site to private school children, to the extent it is
possible to do so, LEAs are encouraged to provide those services at
private school sites so as to minimize the amount spent on necessary
transportation and to cause the least disruption in the children's
education. However, State constitutions and laws must also be consulted
when making determinations about whether it is consistent with law to
provide services on-site at a religious school.
If services are offered at a site separate from the child's private
school, transportation may be necessary in order to get the child from
one site to the other, or the child may be effectively denied an
opportunity to benefit. In this sense then, transportation is not a
related service but is a means of making the services that are offered
accessible. LEAs should work in consultation with representatives of
private school children to ensure that services are provided at sites
that will not require significant transportation costs. In light of the
decision to remove notes from the final regulations, paragraph (b) of
this section should be revised to incorporate the concept from the note
that transportation does not need to be provided between the child's
home and the private school.
Changes: Section 300.456 has been re-titled ``Location of services;
transportation.'' A technical change has been made to paragraph (a) to
refer to religious schools rather than religiously-affiliated schools.
Paragraph (b) has been revised to explain when
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