[Federal Register: March 12, 1999 (Volume 64, Number 48)]
[Rules and Regulations]
[Page 12405-12454]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12mr99-12]
[[Page 12405]]
_______________________________________________________________________
Part II
Department of Education
_______________________________________________________________________
34 CFR Parts 300 and 303
Assistance to States for the Education of Children With Disabilities
and the Early Intervention Program for Infants and Toddlers With
Disabilities; Final Regulations
[[Page 12406]]
DEPARTMENT OF EDUCATION
34 CFR Parts 300 and 303
RIN 1820-AB40
Assistance to States for the Education of Children With
Disabilities and the Early Intervention Program for Infants and
Toddlers With Disabilities
AGENCY: Office of Special Education and Rehabilitative Services,
Department of Education.
ACTION: Final regulations.
-----------------------------------------------------------------------
SUMMARY: The Secretary issues final regulations for the Assistance to
States for Education of Children with Disabilities program under Part B
of the Individuals with Disabilities Education Act (IDEA; Part B) and
the Early Intervention Program for Infants and Toddlers with
Disabilities under Part C of the Act (Part C). These regulations are
needed to implement changes made to Part B by the IDEA Amendments of
1997; make other changes to the part B regulations based on relevant,
longstanding policy guidance; and revise the requirements on State
complaint procedures under both the Part B and Part C programs.
DATES: These regulations take effect on May 11, 1999. However,
compliance with these regulations will not be required until the date
the State receives FY 1999 funding (expected to be available for
obligation to States on July 1, 1999) under the program or October 1,
1999, whichever is earlier. Affected parties do not have to comply with
the information collection requirements contained in the regulations
listed under the Paperwork Reduction Act of 1995 section of this
preamble until the Department publishes in the Federal Register the
control number assigned by the Office of Management and Budget (OMB) to
these information collection requirements. Publication of the control
numbers notifies the public that OMB has approved these information
collection requirements under the Paperwork Reduction Act of 1995.
FOR FURTHER INFORMATION CONTACT: Thomas Irvin or JoLeta Reynolds (202)
205-5507. Individuals who use a telecommunications device for the deaf
(TDD) may call (202) 205-5465.
Individuals with disabilities may obtain this document in an
alternate format (e.g., Braille, large print, audiotape, or computer
diskette) on request to Katie Mincey, Director of the Alternate Formats
Center. Telephone: (202) 205-8113.
SUPPLEMENTARY INFORMATION: On October 22, 1997, the Secretary published
a notice of proposed rulemaking (NPRM) in the Federal Register (62 FR
55026) to amend the regulations governing the Assistance to States for
Education of Children with Disabilities program (part 300), the
Preschool Grants for Children with Disabilities program (part 301), and
the Early Intervention Program for Infants and Toddlers with
Disabilities (part 303). A key purpose of the NPRM was to implement
changes made by the IDEA Amendments of 1997 (Pub. L. 105-17).
Since that time, the Department has published final regulations for
both the Preschool Grants program (63 FR 29928, June 1, 1998) and the
Early Intervention program for Infants and Toddlers with Disabilities
(63 FR 18297, April 14, 1998), to incorporate the requirements added to
those programs by Pub. L. 105-17. On April 14, 1998, a document was
published in the Federal Register inviting comment on whether the
regulations for the Early Intervention program for Infants and Toddlers
with Disabilities should be further amended (63 FR 18297). (A
subsequent document reopening the comment period was published on
August 14, 1998 (63 FR 43866)).
The final regulations in this publication are needed to conform the
existing regulations under Part B of the Act to the new statutory
requirements added by Pub. L. 105-17, including (1) amending
requirements under prior law related to areas such as State and local
eligibility, evaluation, and individualized education programs (IEPs),
and (2) incorporating new requirements in the Act (e.g., those relating
to discipline, performance goals and indicators, participation of
children with disabilities in State and district-wide assessments,
procedural safeguards notice, and mediation).
The regulations have also been amended to incorporate relevant
longstanding interpretations of the Act that have been addressed in
nonregulatory guidance in the past and are needed to ensure a more
meaningful implementation of the Act and its regulations for children
with disabilities, parents, and public agencies. These interpretations
are based on the statutory provisions of the IDEA that were in effect
prior to the IDEA Amendments of 1997 and that were not changed by those
Amendments. Examples of provisions of the regulations that incorporate
prior Department interpretations of the statute include:
Section 300.7(c)(9)--recognizing that some children with attention
deficit disorder (ADD) may be identified under the category of other
health impairment;
Section 300.19--recognizing that foster parents may, under certain
circumstances and if permitted under State law, qualify as a ``parent';
Section 300.121(c)--recognizing that if a child's third birthday is
in the summer, the child's IEP team determines the date when services
begin under the child's IEP or IFSP. (The team must develop the IEP or
IFSP by the child's third birthday.);
Section 300.122(a)(3)--recognizing that graduation with a regular
high school diploma ends the child's eligibility under Part B;
Section 300.309--recognizing that extended school year services
must be provided if necessary for the provision of a free appropriate
public education to the child; and
Section 300.519--identifying what constitutes a change of placement
for disciplinary purposes under these regulations.
In addition, changes have been made to the requirements on State
complaint procedures in the regulations for Part B (Secs. 300.660-
300.662), and conforming changes have been made in the Part C
regulations (Secs. 303.510-303.512).
Analysis of Comments and Changes
In response to the Secretary's invitation to comment on the NPRM
published in the Federal Register on October 22, 1997 (62 FR 55026),
about 6,000 individuals, public agencies, and organizations submitted
written or oral comments. An analysis of the public comments received,
including a description of the changes made in the proposed regulations
since publication of the NPRM, is published as Attachment 1 to these
final regulations. The perspectives of individuals and groups of
parents, teachers, related service providers, State and local
officials, individuals with disabilities and members of Congress were
very important in helping to identify where changes were necessary in
the proposed regulations, and in formulating many of those changes. The
detailed, thoughtful comments of so many individuals and organizations
clearly demonstrated a high level of commitment to making sure that the
IDEA and its regulations make a real difference in the day-to-day
education of our children. In light of the comments received, a number
of significant changes are reflected in these final regulations.
Effective Date of These Regulations
These regulations take effect on May 11, 1999. As these regulations
were not in effect at the time Federal fiscal year
[[Page 12407]]
(FY) 1998 funds (funds for use during school year 1998-99) became
available for obligation to States, compliance with the requirements of
these regulations, that are not statutory requirements or provisions of
pre-existing regulations, will not be mandatory for this grant year.
When either the FY 1998 funds that are unobligated by States and school
districts become carryover funds (October 1, 1999) or, if earlier, the
State receives FY 1999 funding (expected to be available for obligation
to States July 1, 1999) compliance with these final regulations is
required. This will enable all parties to become familiar with the new
regulations without requiring changes that could interrupt school or
program operations in the middle of a grant year. However, States and
school districts may adopt and use these regulations when they are
effective, and are encouraged, to the greatest extent possible, to
start to implement them as soon as possible during this school year. In
any case, the statutory requirements of the Individuals with
Disabilities Education Act Amendments of 1997 (IDEA Amendments of 1997)
are in effect and must be complied with throughout the 1998-99 school
year. In addition, States and school districts must comply with all
requirements of the Part 300 regulations that were in effect at the
beginning of this school year unless inconsistent with the IDEA
Amendments of 1997 or these final regulations. Applications for grants
for FY 1999 funds must be consistent with the requirements of these
final regulations.
Most of the provisions of the IDEA Amendments of 1997 relating to
Parts B and C of the Act have been in effect since enactment, June 4,
1997, with a few provisions, such as the new Part B provisions
concerning individualized education programs and the comprehensive
system of personnel development, taking effect on July 1, 1998.
Therefore, States and school districts already are familiar with the
statutory provisions of the IDEA Amendments of 1997 to which they must
comply.
Major Changes in the Regulations
The following is a summary of the major substantive changes from
the NPRM in these final regulations:
1. General Changes
* All notes in the NPRM related to the sections or subparts
covered in these final regulations have been removed. The substance of
any note that should be required for proper implementation of the Act
has been added to the text of these final regulations. Information in
notes considered to be directly relevant to the ``Notice of
Interpretation'' on IEP requirements has been added to the text of that
notice in Appendix A to these final regulations. The substance of any
note considered to provide clarifying information or useful guidance
has been incorporated into the discussion of the applicable comments in
the ``Analysis of Comments and Changes'' (see Attachment 1 to these
final regulations). All other notes have been deleted.
* Appendix C in the NPRM (``Notice of Interpretation on
IEPs) has been redesignated as ``Appendix A'' in these final
regulations; and a new Appendix B--Index to IDEA Part B Regulations has
been added.
* Three attachments have also been added: Attachment 1--
Analysis of Comments and Changes; Attachment 2--Final Regulatory
Flexibility Analysis; and Attachment 3--Table showing ``Disposition of
NPRM Notes in Final Part 300 and 303 Regulations.'' However, these
attachments will not be codified in the Code of Federal Regulations.
2. Changes in Subpart A--General
* Proposed Sec. 300.2 (Applicability of this part to State,
local, and private agencies) has been revised to include ``public
charter schools that are not otherwise included as local educational
agencies (LEAs) or educational service agencies (ESAs) and are not a
school of an LEA or ESA'' and to specify that the rules of Part 300
apply to all public agencies in the State providing special education
and related services.
* Consistent with the general decision to not use notes in
these final regulations, proposed Note 1 immediately preceding
Sec. 300.4 in the NPRM, (which included a list of terms defined in
specific subparts and sections of the regulations) has been deleted and
the terms included as part of an index to these regulations (see
Appendix B).
* The proposed definition of ``child with a disability''
(Sec. 300.7(a)) has been revised to clarify that if a child with a
disability needs only a related service and not special education, the
child is not eligible under this part; but if the related service is
considered to be special education under State standards, the child
would be eligible.
* The proposed definition of ``other health impairment''
(``OHI''), at Sec. 300.7(c)(9), has been amended to (1) add ``attention
deficit disorder'' (ADD) and ``attention deficit hyperactivity
disorder'' (ADHD) to the list of conditions that could render a child
eligible under OHI, and (2) clarify that, with respect to children with
ADD/ADHD, the phrase ``limited strength, vitality, or alertness''
includes ``a child's heightened alertness to environmental stimuli that
results in limited alertness with respect to the educational
environment.''
* The proposed definition of ``Day'' (Sec. 300.9) has been
retitled ``Day; business day; school day,'' and definitions of
``business day'' and ``school day'' have been added.
* The proposed definition of ``educational service agency''
(Sec. 300.10) has been revised to clarify that the term ``[i]ncludes
entities that meet the definition of ``intermediate educational unit''
in section 602(23) of IDEA as in effect prior to June 4, 1997.''
* The proposed definition of ``general curriculum'' in
Sec. 300.12 of the NPRM and the explanatory note following that section
have been deleted. The term is explained where it is used in
Sec. 300.347 and in Appendix A regarding IEP requirements.
* The proposed definition of ``local educational agency''
(Sec. 300.18) has been amended to clarify, consistent with new
statutory language concerning public charter schools, that the term
includes public charter schools that are established as an LEA under
State law.
* The proposed definition of ``native language''
(Sec. 300.19) has been amended to specify that (1) in all direct
contact with a child (including evaluation of the child), the native
language is the language normally used by the child in the home or
learning environment, and (2) for an individual with deafness or
blindness, or with no written language, the mode of communication is
that normally used by the individual (such as sign language, braille,
or oral communication).
* The proposed definition of ``parent'' has been amended to
(1) add language clarifying that the term means a natural or adoptive
parent of a child and a person acting in the place of a parent (such as
a grandparent or stepparent with whom the child lives, or a person who
is legally responsible for the child's welfare), and (2) permit States
in certain circumstances to use foster parents as parents under the Act
unless prohibited by State law.
* The proposed definition of ``public agency'' (Sec. 300.22)
has been amended to add to the list of examples of a public agency
``public charter schools that are not otherwise included as LEAs or
ESAs and are not a school of an LEA or ESA'', consistent with new
statutory language concerning public charter schools.
* The proposed definition of ``parent counseling and
training,'' under the definition of ``related services,''
(Sec. 300.24(b)(7)) has been amended to
[[Page 12408]]
add that the term also means ``helping parents to acquire the necessary
skills that will allow them to support the implementation of their
child's IEP or IFSP.''
* The proposed definition of ``special education''
(Sec. 300.26) has been amended to add ``travel training'' as a special
education service and to include a definition of the term.
3. Changes in Subpart B--State and Local Eligibility
State Eligibility
* Proposed Sec. 300.110 (Condition of assistance) has been
amended to more explicitly state what is required for compliance with
the State eligibility requirements.
* Proposed Sec. 300.121 (FAPE) has been amended to specify
(1) requirements for providing FAPE for children with disabilities
beginning at age 3; (2) that services need not be provided during
periods of removal under Sec. 300.520(a)(1) to a child with a
disability who has been removed from his or her current placement for
10 school days or less in that school year, if services are not
provided to a child without disabiliities who has been similarly
removed; (3) the standards that are used to determine appropriate
services for children with disabilities who have been removed from
their current placement for more than 10 school days in a school year;
(4) that LEAs must ensure that FAPE is available to any child with a
disability who needs special education and related services, even
though the child is advancing from grade to grade; and (5) that the
determination that a child who is advancing from grade to grade is
eligible under this part must be made on an individual basis by the
group within the LEA responsible for making eligibility determinations.
* Proposed Sec. 300.122 (Exception to FAPE for certain ages)
has been amended to (1) specify situations in which the exception to
FAPE for students with disabilities in adult prisons does not apply,
and (2) make clear that graduation from high school with a regular
diploma is a change in placement requiring notice in accordance with
Sec. 300.503. (A related change to Sec. 300.534(c) makes clear that a
reevaluation is not required for graduation with a regular high school
diploma or termination of eligibility for exceeding the age eligibility
for FAPE under State law.)
* Proposed Sec. 300.125 (Child find) has been revised to (1)
clarify that the child find requirements apply to highly mobile
children (e.g., migrant and homeless children), and to children who are
suspected of being a child with a disability under this part, even
though they are advancing from grade to grade, and (2) add needed
clarifications of requirements relating to child find for children from
birth through age 2 when the SEA and lead agency for the Part C program
are different.
* Proposed Sec. 300.136 (Personnel standards) has been
amended as follows:
(1) The proposed definition of ``profession or discipline'' in
Sec. 300.136(a)(3) has been revised to clarify that the term ``specific
occupational category'' is not limited to traditional categories.
(2) The policies and procedures in proposed Sec. 300.136(b) have
been expanded to provide that (A) each State may determine the specific
occupational categories required in the State and revise or expand them
as needed; (B) nothing in these regulations requires a State to
establish a specific training standard (e.g., a masters degree); and
(C) a State with only one entry-level academic degree for employment of
personnel in a specific profession or discipline may modify that
standard, as necessary, to ensure the provision of FAPE to all eligible
children.
(3) Proposed Sec. 300.136(g) (State policy to address shortage of
personnel) has been amended by adding provisions that (A) if a State
has reached its established date for a specific profession or
discipline, it may still exercise the option in redesignated
Sec. 300.136(g)(1); and (B) each State must have a mechanism for
serving children with disabilities if instructional needs exceed
available (qualified) personnel, including addressing those shortages
in its comprehensive system of personnel development if the shortages
continue.
* Proposed Sec. 300.138 (Participation in assessments) has
been amended to require appropriate modifications in the administration
of the assessments, if necessary.
* Proposed Sec. 300.142 (Methods of ensuring services) has
been amended as follows:
(1) Proposed Sec. 300.142(b) (Obligation of noneducational public
agencies) has been revised to specify that those agencies may not
disqualify an eligible service for Medicaid reimbursement because the
service is provided in an educational context.
(2) Proposed Sec. 300.142(b)(2) (Reimbursement for services by
noneducational public agency) has been revised to require that an LEA
must provide services in a timely manner if a public noneducational
agency fails to provide or pay for the services.
(3) Proposed Sec. 300.142(e) has been added to make clear that a
public agency may use a child's public insurance to provide or pay for
services required under Part B, with certain limitations. The public
agency (A) may not require parents to sign up for public insurance in
order for the child to receive FAPE, (B) may not require parents to
incur out-of-pocket expenses in order to file the claim for services
under Part B, and (C) may not use the child's benefits under a public
insurance program if that use would decrease available lifetime
coverage or any other insured benefit, result in the family paying for
services that would have been covered by the public insurance and are
required for the child outside of the time the child is in school,
increase premiums or lead to discontinuation of services or risk loss
of eligibility for home and community-based waivers due to aggregate
health-related expenditures.
(4) The proposed provisions on children covered by private
insurance have been redesignated as Sec. 300.142(f), and revised to
provide that a public agency (A) may access a parent's private
insurance proceeds only if the parent provides informed consent, and
(B) must obtain consent each time it proposes to access those proceeds,
and inform the parents that their refusal to permit such access does
not relieve the public agency of its responsibility to provide all
required services at no cost to the parents.
(5) A new Sec. 300.142(g) has been added to permit the use of part
B funds to ensure FAPE for (A) the cost of required services under
these regulations if the parents refuse consent to use public or
private insurance, and (B) the costs of using the parents' insurance,
such as paying deductible or co-pay amounts.
(6) Proposed Sec. 300.142(f) (Proceeds from public or private
insurance) has been redesignated as paragraph (h), and revised to
clarify that (A) the insurance proceeds received by a public agency do
not have to be returned to the Department or dedicated to the part B
program; and (B) funds expended by a public agency from reimbursements
of Federal funds will not be considered State or local funds for
purposes of State or local maintenance of effort.
(7) A new Sec. 300.142(i) has been added to specify that nothing in
Part B should be construed to alter the requirements imposed on a State
medicaid agency, or any other agency administering a public insurance
program by Federal statute, regulations or policy under Title XIX or
Title XXI of the Social Security Act, or any other public insurance
program.
[[Page 12409]]
* Proposed Sec. 300.148 (Public participation) has been
amended to clarify that a State will be considered to be in compliance
with this section if the State has subjected the policy or procedure to
a public participation process that is required by the State for other
purposes and is comparable to and consistent with the requirements of
Secs. 300.280-300.284.
* Proposed Sec. 300.154 (Maintenance of State financial
support) has been amended to clarify that maintenance of State
financial support can be demonstrated on either a total or per-capita
basis.
LEA Eligibility--Specific Conditions
* Proposed Sec. 300.231 (Maintenance of effort) has been
amended to set out the standard for meeting the maintenance of effort
requirement.
* Proposed Sec. 300.232 (Exception to maintenance of effort)
has been amended to specify that the exception related to voluntary
retirement or resignation of personnel must be in full conformity with
existing school board policies, any applicable collective bargaining
agreement, and applicable State statutes.
* Proposed Sec. 300.234 (Schoolwide programs under title I
of the ESEA) has been amended to make clear that an LEA that uses Part
B funds in schoolwide program schools must ensure that children with
disabilities in those schools receive services in accordance with a
properly developed IEP and are afforded all applicable rights and
services guaranteed under the IDEA.
4. Changes in Subpart C--Services
Free Appropriate Public Education
* Proposed Sec. 300.300 (Provision of FAPE) has been amended
to specify that the State must ensure that the child find requirements
of Sec. 300.125 are implemented by public agencies throughout the
State. Proposed Sec. 300.300 also has been amended to specify that (1)
the services provided to the child under this part address all of the
child's identified special education and related services needs, and
(2) are based on the child's identified needs and not the child's
disability category.
* Proposed Sec. 300.301 (FAPE--methods and payments) has
been amended to add a provision requiring that the State must ensure
that there is no delay in implementing a child's IEP, including any
case in which the payment source for providing or paying for the
special education and related services to the child is being
determined.
* Proposed Sec. 300.308 (Assistive technology) has been
amended to clarify that, on a case-by-case basis, the use of school-
purchased assistive technology devices in a child's home or in other
settings is required if the child's IEP team determines that the child
needs access to those devices in order to receive FAPE.
* Proposed Sec. 300.309 (Extended school year (ESY)
services) has been amended to specify that (1) ESY services must be
provided only if a child's IEP team determines, on an individual basis,
that the services are necessary for the provision of FAPE to the child,
and (2) an LEA may not limit ESY services to particular categories of
disability, or unilaterally limit the type, amount, or duration of
those services.
* A new Sec. 300.312 (Children with disabilities in public
charter schools) has been added to (1) specify that these children and
their parents retain all rights under these regulations, and that
compliance with part B is required regardless of whether a public
charter school receives Part B funds; and (2) address the
responsibilities of the following: public charter schools that are
LEAs; LEAs if the charter school is a school in the LEA; and the SEA if
the charter school is not an LEA or a school of an LEA.
* A new Sec. 300.313 (Children experiencing developmental
delays) has been added to (1) clarify the circumstances under which the
designation ``developmental delay'' may be used by a State or an LEA in
the State; (2) permit a State or LEA that elects to use that term to
also use one or more of the disability categories described in
Sec. 300.7 for any child aged 3 through 9 who has been determined to
have a disability and who, by reason thereof, needs special education;
and (3) permit a State to adopt a common definition of developmental
delay under Parts B and C of the Act.
Individualized Education Programs (IEPs)
* Proposed Sec. 300.341 (retitled ``Responsibility of SEA
and other public agencies for IEPs) has been revised to (1) consistent
with provisions regarding parentally-placed children with disabilities
in religious or other private schools (see changes to Subpart D), and
(2) to clarify that the section also applies to the SEA if it provides
direct services to children with disabilities as well as other public
agencies that provide special education either directly, by contract,
or through other means.
* Proposed Sec. 300.342(b) has been revised to provide that
the child's IEP must be accessible to each of the child's teachers and
service providers and that teacher and service provider with
responsibility for its implementation be informed of his or her
specific responsibilities under the IEP and of the specific
accommodations, modifications, and supports that must be provided for
the child under that IEP.
* Proposed Sec. 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.
* Proposed Sec. 300.343 (IEP meetings) has been revised to
clarify that special education and related services must be available
to the child within a reasonable period of time following receipt of
parent consent to an initial evaluation.
* Proposed Sec. 300.344 (IEP Team) has been amended to (1)
clarify that the determination of knowledge or special expertise of
``other individuals'' under Sec. 300.344(a)(6) is made by the party who
has invited the individual to be a member of the IEP team; and (2)
permit a public agency to designate another public agency member of the
IEP team to also serve as the agency representative, if the criteria in
Sec. 300.344(a)(4) are satisfied.
* Proposed Sec. 300.345 (Parent participation) has been
revised to clarify that (1) the public agency's notice to parents about
the IEP meeting must inform them about the ability of either party to
invite individuals with knowledge or special expertise to the meeting,
consistent with Sec. 300.344(a)(6) and (c); and (2) the agency must
give the parents a copy of their child's IEP.
* Proposed Sec. 300.346 (Development, review, and revision
of IEP) has been revised to clarify that, in developing each child's
IEP, the IEP team also must consider ``as appropriate, the results of
the child's performance on any general State or district-wide
assessment programs.
* Proposed Sec. 300.347 (Content of IEP) has been amended to
(1) clarify that ``general curriculum'' is the same curriculum as for
nondisabled children, and (2) delete the requirement 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 (Sec. 300.29),
the IEP must include a statement to that effect and the basis upon
which the determination was made.
* Proposed Sec. 300.350 (Children with disabilities in
religiously-affiliated or other private schools) has been deleted. A
new Sec. 300.455(c) has been added to specify LEA responsibilities
regarding the development of ``services plans'' for private school
children.
[[Page 12410]]
* Proposed Sec. 300.351 (IEP--accountability) has been
redesignated as Sec. 300.350, and revised to provide that (1) each
public agency must make a good faith effort to assist the child to
achieve the goals and objectives or benchmarks listed in the IEP; (2) a
State or public agency is not prohibited from establishing its own
accountability systems regarding teacher, school, or agency
performance; and (3) ``[n]othing in this section limits a parent's
right to ask for revisions of the child's IEP or to invoke due process
procedures if the parent feels that efforts required in paragraph (a)
of this section are not being met.''
Direct Services by SEA
* Proposed Sec. 300.360 (Use of LEA allocation for direct
services) has been amended to clarify that (1) if an LEA does not elect
to apply for its Part B funds, the SEA must use those funds to ensure
that FAPE is available to all eligible children residing in the
jurisdiction of the LEA; (2) if the local allotment is not sufficient
to ensure FAPE to all eligible children within the LEA, the SEA must
ensure that FAPE is available to those children; and (3) the SEA may
use whatever funding sources are available in the State to ensure that
all eligible children within each LEA receive FAPE (see Sec. 300.301).
* Proposed Sec. 300.370 (Use of SEA allocations) has been
amended to clarify that, of the Part B funds it retains for other than
administration, the SEA may use the funds either directly, or
distribute them to LEAs on a competitive, targeted, or formula basis.
5. Changes in Subpart D--Children in Private Schools
Children With Disabilities in Private Schools Placed or Referred by
Public Agencies
* Proposed Sec. 300.401 (``Responsibility of SEA'') has been
revised to provide 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.
Children With Disabilities Enrolled by Their Parents in Private Schools
When FAPE Is at Issue
* Proposed Sec. 300.403 (``Placement of children by parent
if FAPE is at issue'') has been revised to clarify that (1) the
provisions of Secs. 300.450-300.462 apply to children with disabilities
placed voluntarily in private schools, even though the public agency
made FAPE available to those children; (2) private school placement by
the parents must be appropriate (as determined by a court or hearing
officer) in order to be eligible for reimbursement, (3) a parental
placement does not need to meet State standards that apply to education
provided by the SEA and LEAs in order to be appropriate; and (4) 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.
Children With Disabilities Enrolled by Their Parents in Private Schools
* Proposed Sec. 300.451 (``Child find for private school
children with disabilities'') has been revised to specify that (1)
child find activities for those children must be comparable to child
find activities for children with disabilities in public schools, and
(2) LEAs must 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 those
activities for public school children.
* Proposed Sec. 300.452 (retitled ``Provision of services--
basic requirement'') has been amended to add a new provision related to
the SEA's responsibility for ensuring that a services plan is developed
for each private school child with a disability who has been designated
to receive services under these regulations.
* Proposed Sec. 300.453 (``Expenditures'') has been revised
to specify that (1) each LEA must consult with representatives of
private school children with disabilities to decide how to conduct the
annual count of the number of those children; (2) the LEA must ensure
that the count is conducted by specified dates, and that the data are
used to determine the amount of Part B funds to be earmarked for
private school children in the next fiscal year; (3) the costs of child
find activities for private school children with disabilities may not
be considered in determining whether the LEA met the expenditures
requirement of this section; and (4) SEAs and LEAs are not prohibited
from providing services to private school children with disabilities
beyond those required by this part, consistent with State law or local
policy.
* Proposed Sec. 300.454 (Services determined) has been
revised to specify that each LEA must (1) consult with private school
representatives on where services will be provided; (2) conduct
meetings to develop, review, and revise a ``services plan,'' in
accordance with Sec. 300.455, for each private school child with a
disability who has been designated to receive services under this part;
and (3) ensure that a representative of the private school participates
in the meetings.
* Proposed Sec. 300.455 (Services provided) has been revised
to specify that (1) each private school child with a disability who has
been designated to receive Part B services must have a services plan,
and (2) the plan must, to the extent appropriate, meet the requirements
of Sec. 300.347 with respect to the services provided, and be
developed, reviewed and revised consistent with Secs. 300.342-300.346.
* Proposed Sec. 300.456 (Location of services) has been
revised to make clear that, while transportation might be provided
between a child's home or private school and a service site if
necessary for the child to benefit from or participate in the services
offered, LEAs are not required to provide transportation between the
child's home and private school.
* Proposed Sec. 300.457 (Complaints) has been revised to
specify that the due process procedures under this part apply to child
find activities for private school children with disabilities,
including evaluations.
6. Changes in Subpart E--Procedural Safeguards
Due Process Procedures for Parents and Children
* Proposed Sec. 300.500 (General responsibility of public
agencies; definitions) has been amended as follows:
(1) The proposed definition of ``consent'' (300.500(b)(1)) has been
revised to clarify that a revocation of consent does not have a
retroactive effect if the action consented to has already occurred.
(2) The proposed definition of ``evaluation'' (Sec. 300.500(b)(2))
has been revised by deleting the last sentence of the definition, to
ensure that evaluations may include a review of a child's performance
on a test or procedures used for all children in a school, grade, or
class.
* Proposed Sec. 300.501 (Opportunity to examine records;
parent participation in meetings) has been amended to (1) delete the
word ``all'' from Sec. 300.501(a)(2); (2) delete the definition of
``meetings'' but provide that the term does not include certain
conversations or preparation for a meeting and (3) clarify that each
public agency must ``make reasonable efforts'' related to parental
participation in group
[[Page 12411]]
discussions relating to the educational placements of their child.
* Proposed Sec. 300.502 (Independent educational evaluation
(IEE)) has been amended to (1) add that, upon request for an IEE,
parents must be given information about agency criteria applicable for
IEEs; (2) clarify, in Sec. 300.502(e)(1), that the criteria under which
an IEE is obtained must be the same as that of the public agency ``to
the extent such criteria are consistent with the parent's right to an
IEE,'' and (3) explain that an explanation of parent disagreement with
an agency evaluation may not be required and the public agency may not
delay either providing the IEE at public expense or, alternatively,
initiating a due process hearing.
* Proposed Sec. 300.503 (Prior notice by the public agency;
content of notice) has been amended to delete the provision in
Sec. 300.503(b)(8) (related to informing parents about the State
complaint procedures). (See Sec. 300.504(b).)
* Proposed Sec. 300.504 (Procedural safeguards notice) has
been amended to add State complaint procedures under Secs. 300.660-
300.662 to the items included in the notice.
* Proposed Sec. 300.505 (Parental consent) has been amended
to (1) refer to ``informed parent consent;'' (2) add ``all
reevaluations'' to the list of actions requiring consent (see
Sec. 300.505(a)(1)(i)); (3) delete paragraph (a)(1)(iii), and add a new
paragraph (a)(3) to specify that parental consent is not required
before reviewing existing evaluation data as a part of an evaluation or
reevaluation or for administering a test used with all children unless
consent is required of all parents; and (4) specify, in paragraph (e),
that a public agency may not use a parental refusal to consent to one
service or benefit under paragraphs (a) and (d) to deny the parent or
child another service or benefit.
* Proposed Sec. 300.506 (Mediation) has been revised to (1)
add a new Sec. 300.506(b)(2) to specify that the mediator must be
selected from a list of mediators on a random basis (e.g., a rotation),
or that both parties are involved in selecting the mediator and agree
with the selection of the individual who will mediate; and (2) add a
new Sec. 300.506(c)(2) to clarify that payment for mediation services
by the State does not make the mediator an employee of the State agency
for purposes of impartiality.
* Proposed Sec. 300.507 (Impartial due process hearing;
parent notice) has been amended to clarify that, in the content of the
parent notice, the description of the nature of the problem applies to
the action ``refused'' as well as that proposed by the public agency.
* Proposed Sec. 300.509 (Hearing rights) has been revised to
clarify that, in paragraph (a)(3), the disclosure is required at least
5 ``business'' days before the hearing.
* Proposed Sec. 300.510 (Finality of decision; impartiality
of review) has been amended to (1) make the reference to written
findings and decision in Sec. 300.510(b)(2)(vi) consistent with
Sec. 300.509(a)(5), and (2) allow the choice of ``electronic or written
findings of fact and decision.''
* Proposed Sec. 300.513 (Attorneys' fees) has been amended
to include all of the provisions of section 615(i)(3)(C)-(G) of the
Act.
* Proposed Sec. 300.514(c) has been amended to provide that
a decision by a State hearing or review officer that is in agreement
with the parents constitutes an agreement for purposes of pendency.
* Proposed Sec. 300.515 (Surrogate parents) has been revised
to permit employees of nonpublic agencies that have no role in
educating a child to serve as surrogate parents.
Discipline Procedures
* A new Sec. 300.519 (Change of placement for disciplinary
removals) has been added regarding change of placement in the context
of removals under Secs. 300.520-300.529.
* Proposed Sec. 300.520 (Authority of school personnel) has
been amended as follows:
(1) Proposed Sec. 300.520(a)(1) has been revised to specify that to
the extent removal would be applied to children without disabilities,
school personnel may order the removal of a child with a disability
from the child's current placement for not more than 10 consecutive
school days and additional removals of not more than 10 consecutive
school days in that same school year for separate incidents of
misconduct as long as they do not constitute a change in placement
under Sec. 300.519, and to make clear that after a child with a
disability has been removed from his or her current placement for more
than 10 school days in the same school year, during any subsequent days
of removal the public agency must provide services to the extent
necessary under Sec. 300.121(d).
(2) Proposed Sec. 300.520(b) has been revised to replace
``suspension'' with ``removal,'' and to specify that when first
removing a child for more than 10 school days in a school year, or
commencing a removal that constitutes a change of placement, the LEA
must within 10 business days, convene an IEP meeting. If the agency had
not already conducted a functional behavioral assessment and
implemented a behavioral intervention plan for the child the purpose of
the IEP meeting is to develop an assessment plan. As soon as
practicable after completion of the plan, the LEA must then convene an
IEP meeting to develop appropriate behavioral interventions to address
the child's behavior. If a child already has a behavioral intervention
plan, the purpose of the IEP meeting is to review the plan and its
implementation.
(3) Proposed Sec. 300.520(c) has been deleted and replaced with a
provision that requires that if a child with a disability who has a
behavioral intervention plan and has been removed for more than 10
school days in a school year subsequently is subjected to a removal
that is not a change of placement, the child's IEP team members shall
review the behavioral intervention plan, and meet to modify it or its
implementation if one or more team members think modifications are
needed.
* Proposed Sec. 300.521(d) has been modified to make clear
that the hearing officer determines the appropriateness of the interim
alternative educational setting proposed by school personnel who have
consulted with the child's special education teacher.
* Proposed Sec. 300.522 (Determination of setting) has been
amended to (1) specify that the interim alternative educational setting
referred to in Sec. 300.520(a)(2) must be determined by the IEP team;
and (2) clarify that the services and modifications to address the
child's behavior are designed to prevent the behavior from recurring.
* Proposed Sec. 300.523 (Manifestation determination review)
has been amended as follows:
(1) Proposed Sec. 300.523(a) has been revised to (1) specify that
the manifestation determination review is done regarding behavior
described in Secs. 300.520(a)(2) and 300.521, or if a removal is
contemplated that constitutes a change of placement under Sec. 300.519;
and (2) require that parents be provided notice of procedural
safeguards consistent with Sec. 300.504.
(2) Proposed Sec. 300.523(b) (exception to conducting a
manifestation determination review) has been removed.
(3) Proposed Sec. 300.523(c) has been redesignated as
Sec. 300.523(b) and revised to specify that the manifestation
determination review is conducted at a meeting.
(4) Proposed Sec. 300.523(d) and (e) have been redesignated as
Sec. 300.523(c) and (d) and revised by adding ``and other
[[Page 12412]]
qualified personnel'' after ``IEP team'' each time it is used.
(5) Proposed paragraph (f) has been redesignated as paragraph (e)
and a new paragraph (f) has been added to clarify that if in the
manifestation review deficiencies are identified in the child's IEP or
placement or in their implementation, the public agency must act to
correct those deficiencies.
* Proposed Sec. 300.524 (Determination that behavior was not
a manifestation of disability) has been amended to (1) replace, in
paragraph (a), the reference to ``section 612 of the Act'' with
``Sec. 300.121(c);'' and (2) refer, in paragraph (c), to the placement
rules of Sec. 300.526.
* Proposed Sec. 300.525 (Parent appeal) has been revised to
refer to any decision regarding placement under Secs. 300.520-300.528.
* Proposed Sec. 300.526(c)(3) has been revised to clarify
that extensions of 45 day removals by a hearing officer because
returning the child to the child's current placement would be
dangerous, may be repeated, if necessary.
* Proposed Sec. 300.527 (Protections for children not yet
eligible for special education and related services) has been amended
as follows:
(1) Proposed Sec. 300.527(b)(1) has been revised to refer to not
knowing how to write rather than illiteracy in English.
(2) Proposed Sec. 300.527(b)(2) has been revised to clarify that
the behavior or performance is in relation to the categories of
disability identified in Sec. 300.7.
(3) Proposed Sec. 300.527(b)(4) has been revised to refer to other
personnel who have responsibilities for child find or special education
referrals in the agency.
(4) Proposed Sec. 300.527(c) has been redesignated as paragraph
(d), and a new paragraph (c) has been added to provide that if an
agency acts on one of the bases identified in paragraph (b), determines
that the child is not eligible, and provides proper notice to the
parents, and there are no additional bases of knowledge under paragraph
(b) that were not considered, the agency would not be held to have a
basis of knowledge under Sec. 300.527(b).
(5) Proposed Sec. 300.527(d)(2)(ii) has been revised to clarify
that an educational placement under that provision can include
suspension or expulsion without educational services.
* Proposed Sec. 300.528 (Expedited due process hearings) has
been amended as follows:
(1) Proposed Sec. 300.528(a)(1) (requiring a decision within 10
business days) has been deleted. (Paragraphs (a)(2) and (a)(3) are
redesignated as (a)(1) and (a)(2) and paragraphs (b) and (c) are
redesignated as (c) and (d).)
(2) A new Sec. 300.528(b) has been added to require that (A) each
State establish a timeline for expedited due process hearings that
results in a written decision being mailed to the parties within 45
days, with no extensions permitted that result in decisions being
issued more than 45 days after the hearing request is received by the
public agency; and (B) decisions be issued in the same period of time,
whether the hearing is requested by a parent or an agency.
(3) Redesignated Sec. 300.528(d) has been revised to specify that
expedited due process hearings are appealable consistent with the
Sec. 300.510.
* Proposed Sec. 300.529 (Referral to and action by law
enforcement and judicial authorities) has been amended to make clear
that copies of a child's special education and disciplinary records may
be transmitted only to the extent that such transmission is permitted
under FERPA. (Section 300.571 has been amended to note the relationship
of this section.)
Procedures for Evaluation and Determination of Eligibility
* Proposed Sec. 300.532 (Evaluation procedures) has been
amended to (1) require that assessments of children with limited
English proficiency must be selected and administered to ensure that
they measure the extent to which a child has a disability and needs
special education, and do not, instead, measure the child's English
language skills (Sec. 300.532(a)2); (2) provide that the information
gathered include information related to enabling the child to be
involved and progress in the general curriculum or appropriate
activities if the child is a preschool child (Sec. 300.532(b)); (3)
provide that if an assessment is not conducted under standard
conditions, information about the extent to which the assessment varied
from standard conditions, such as the qualifications of the person
administering the test or the method of test administration, must be
included in the evaluation report (Sec. 300.532(c)(2)); and (4) provide
that each public agency ensure that the evaluation of each child with a
disability under Secs. 300.531-300.536 is sufficiently comprehensive to
identify all of the child's special education and related services
needs, whether or not commonly linked to the disability category in
which the child has been classified.
* Proposed Sec. 300.533 (Determination of needed evaluation
data) has been revised to clarify that the group reviewing existing
data may conduct that review without a meeting (Sec. 300.533(b)).
* Proposed Sec. 300.534 (Determination of eligibility) has
been amended to clarify that (1) children are not eligible if they need
specialized instruction because of limited English proficiency or lack
of instruction in reading or math, but do not need such instruction
because of a disability, as defined in Sec. 300.7; and (2) the
evaluation required in Sec. 300.534(c)(1) is not required before
termination of a child's eligibility under Part B of the Act due to
graduation with a regular high school diploma, or ceasing to meet the
age requirement for FAPE under State law.
* Proposed Sec. 300.535 (Procedures for determining
eligibility and placement) has been revised to add ``parent input'' to
the variety of sources from which the public agency will draw in
interpreting evaluation data for the purpose of determining a child's
eligibility under this part.
Least Restrictive Environment (LRE)
* Proposed Sec. 300.550 (General LRE requirements) has been
amended to add a cross reference to Sec. 300.311(b) and (c), to clarify
that the LRE provisions do not apply to students with disabilities who
are convicted as adults under State law and incarcerated in adult
prisons.
* Proposed Sec. 300.552 (Placements) has been amended to (1)
include a reference to preschool children with disabilities in the
introductory paragraph of this section, and (2) to add a new
Sec. 300.552(e) prohibiting the removal of child with a disability from
an age-appropriate regular classroom solely because of needed
modifications in the general curriculum.
Confidentiality of Information
* Proposed Sec. 300.562 (Access rights) has been revised to
make it clear that expedited due process hearing procedures under
Secs. 300.521-300.529 are also covered under this section.
* Proposed Sec. 300.571 (Consent) has been amended to permit
disclosures without parental consent to the agencies identified in
Sec. 300.529, to the extent permitted under the Family Educational
Rights and Privacy Act (FERPA).
* Proposed Sec. 300.574 (Children's rights) has been revised
by incorporating into the regulations the substance of the two notes
following the section (relating to transfer of educational records to
the student at age 18).
Department Procedures
* Proposed Sec. 300.589 (Waiver of requirement regarding
supplementing
[[Page 12413]]
and not supplanting with Part B funds) has been revised to conform to
the statutory provision that the Secretary provides a waiver ``in whole
or in part.''
7. Changes in Subpart F--State Administration
* Proposed Sec. 300.652 (Advisory panel functions) has been
revised to clarify that one of the duties of the advisory panel is
advising the State agency that has general responsibility for students
who have been convicted as adults and incarcerated in adult prisons.
* Proposed Sec. 300.653 (Advisory panel procedures) has been
amended to specify that all advisory panel meetings and agenda items
must be ``announced enough in advance of the meeting to afford
interested parties a reasonable opportunity to attend.''
* Proposed Sec. 300.660 (Adoption of State complaint
procedures) has been revised to clarify that if an SEA, in resolving a
complaint, finds a failure to provide appropriate services to a child
with a disability, the SEA must address (1) how to remediate the denial
of those services, including, as appropriate, the awarding of monetary
reimbursement or other corrective action appropriate to the needs of
the child; and (2) appropriate future provision of services for all
children with disabilities.
* Proposed Sec. 300.661 (Minimum State complaint procedures)
has been revised to clarify that (1) if an issue in a complaint is the
subject of a due process hearing, that issue (but not any issue outside
of the hearing) would be set aside until the conclusion of the hearing,
(2) the decision on an issue in a due process hearing would be binding
in a State complaint resolution, and (3) a public agency's failure to
implement a due process decision would have to be resolved by the SEA.
8. Changes in Subpart G--Allocation of Funds; Reports
* Proposed Sec. 300.712 (Allocations to LEAs) has been
revised to clarify that, if LEAs are created, combined, or otherwise
reconfigured subsequent to the base year (i.e. the year prior to the
year in which the appropriation under section 611(j) of the Act exceeds
$4,924,672,200), the State is required to provide the LEAs involved
with revised base allocations calculated on the basis of the relative
numbers of children with disabilities aged 3 through 21, or 6 through
21, depending on whether the State serves all children with
disabilities aged 3 through 5 currently provided special education by
each of the affected LEAs. The section also has been expanded to state
that, for the purpose of making grants under this section, States must
apply, on a uniform basis across all LEAs, the best data that are
available to them on the numbers of children enrolled in public and
private elementary and secondary schools and the numbers of children
living in poverty.
* Proposed Sec. 300.713 (Former Chapter 1 State agencies)
has been revised to clarify that the amount each former Chapter 1 State
agency must receive is the minimum amount.
* Proposed Sec. 300.751 (Annual report of children served)
has been revised to clarify that the Secretary may permit States to
collect certain data through sampling.
9. Changes to Part 303
* Proposed Sec. 303.510 (Adopting State complaint
procedures) has been revised to clarify that if a lead agency, in
resolving a complaint, finds a failure to provide appropriate services,
it must address (1) how to remediate the denial of those services,
including, as appropriate, the awarding of monetary reimbursement or
other corrective action appropriate to the needs of the child and the
child's family, as well as (2) appropriate future provision of services
for all infants and toddlers with disabilities and their families.
* Proposed Sec. 303.512 (Minimum State complaint procedures)
has been revised to clarify that (1) if an issue in a complaint is the
subject of a due process hearing, that issue (but not any issue outside
of the hearing) would be set aside until the conclusion of the hearing,
(2) the decision on an issue in a due process hearing would be binding
in a State complaint resolution, and (3) a public agency's or private
service provider's failure to implement a due process decision must be
resolved by the lead agency.
Role of the Regular Education Teacher on the IEP Team
The regulations at Secs. 300.344(a)(2) and 300.346(d) repeat the
statutory provisions regarding the role of the regular education
teacher in developing, reviewing, and revising IEPs. The extent of the
regular education teacher's involvement in the IEP process would be
determined on a case by case basis and is addressed in question 24 in
Appendix A.
Discipline for Children With Disabilities
Some Key Changes in the Regulations Regarding Discipline for Children
With Disabilities
One of the major areas of concern in public comment on the NPRM was
the issue of discipline for children with disabilities under the Act.
The previous list of major changes briefly describes the major changes
from the NPRM that are reflected in these final regulations regarding
discipline under Secs. 300.121(d), and 300.519-529. These changes
reflect very serious consideration of the concerns of school
administrators and teachers regarding preserving school safety and
order without unduly burdensome requirements, while helping schools
respond appropriately to a child's behavior, promoting the use of
appropriate behavioral interventions, and increasing the likelihood of
success in school and school completion for some of our most at-risk
students.
The comments also revealed some confusion about several of the
provisions of the Act and the NPRM regarding discipline. Limitations in
the statute and regulations about the amount of time that a child can
be removed from his or her current placement only come into play when
schools are not able to work out an appropriate placement with the
parents of a child who has violated a school code of conduct. In many,
many cases involving discipline for children with disabilities, schools
and parents are able to reach an agreement about how to respond to the
child's behavior. In addition, neither the statute or the proposed or
final regulations impose absolute limits on the number of days that a
child can be removed from his or her current placement in a school
year. As was the case in the past, school personnel have the ability to
remove a child for short periods of time as long as the removal does
not constitute a change of placement. To help make this point, the
regulations include a new provision (Sec. 300.519) that reflects the
Department's longstanding definition of what constitutes a ``change of
placement'' in the disciplinary context. In this regulation, a
disciplinary ``change of placement'' occurs when a child is removed for
more than 10 consecutive school days or when the child is subjected to
a series of removals that constitute a pattern because they cumulate to
more than 10 school days in a school year, and because of factors such
as the length of the removal, the total amount of time the child is
removed, and the proximity of the removals to one another.
(Sec. 300.519). Changes also have been made to Sec. 300.520(a)(1) to
make clear that multiple short-term removals (i.e., 10 consecutive days
or less) for separate incidents of misconduct are permitted, to the
extent removals would be applied
[[Page 12414]]
to children without disabilities as long as those removals do not
constitute a change of placement, as defined in Sec. 300.519.
Instead of requiring that services begin on the eleventh day in a
school year that a child is removed from his or her current educational
placement, as was proposed in the NPRM, the regulations take a more
flexible approach. If the removal is pursuant to school personnel's
authority to remove for not more than 10 consecutive days
(Sec. 300.520(a)(1)) or for behavior that is not a manifestation of the
child's disability, consistent with Sec. 300.524 services must be
provided to the extent necessary to enable the child to continue to
appropriately progress in the general curriculum and appropriately
advance toward the goals in his or her IEP. (Sec. 300.121(d)).
If the removal is by school personnel under their authority to
remove for not more than 10 school days at a time (Sec. 300.520(a)(1)),
school personnel, in consultation with the child's special education
teacher, make the determination regarding the extent to which services
are necessary to meet this standard. (Sec. 300.121(d)(3)(i)). On the
other hand, if the removal constitutes a change in placement, the
child's IEP team must be involved. If the removal is pursuant to the
authority to discipline a child with a disability to the same extent as
a nondisabled child for behavior that has been determined to not be a
manifestation of the child's disability (Sec. 300.524), the child's IEP
team makes the determination regarding the extent to which services are
necessary to meet this standard. (Sec. 300.121(d)(3)(ii)). If the child
is being placed in an interim alternative educational setting for up to
45 days because of certain weapon or drug offenses (Sec. 300.520(a)(2))
or because a hearing officer has determined that there is a substantial
likelihood of injury to the child or others if the child remains in his
or her current placement (Sec. 300.521), the services to be provided to
the child are determined based on Sec. 300.522. In these cases, the
interim alternative educational setting must be selected so as to
enable the child to continue to progress in the general curriculum,
although in another setting, and to continue to receive those services
and modifications, including those described in the child's current
IEP, that will enable the child to meet the goals set out in that IEP
and include services and modifications to address the behavior.
(Secs. 300.121(d)(2)(ii) and 300.522).
Under these regulations, IEP team meetings regarding functional
behavioral assessments and behavioral intervention plans will only be
required within 10 business days of (1) when the child is first removed
for more than 10 school days in a school year, and (2) whenever the
child is subjected to a disciplinary change of placement.
(Sec. 300.520(b)(1)). In other subsequent removals in a school year of
a child who already has a functional behavioral assessment and
behavioral intervention plan, the IEP team members can review the
behavioral intervention plan and its implementation in light of the
child's behavior, without a meeting, and only meet if one or more of
the team members believe that the plan or its implementation need
modification. (Sec. 300.520(c)).
These final regulations also provide that manifestation
determinations, and the IEP team meetings to make these determinations,
are only required when a child is subjected to a disciplinary change of
placement. (Sec. 300.523(a)). These changes should eliminate the need
for unnecessary, repetitive IEP team meetings. The discussion of
comments regarding the disciplinary sections of the regulations in
Attachment 1 provides a fuller explanation of the regulatory provisions
regarding discipline.
Answers to Some Commonly Asked Questions About Discipline Under IDEA
Prior to the amendments to the Education of the Handicapped Act
(EHA) in 1975, (the EHA is today known as IDEA), the special
educational needs of children with disabilities were not being met.
More than half of the children with disabilities in the United States
did not receive appropriate educational services, and a million
children with disabilities were excluded entirely from the public
school system. All too often, school officials used disciplinary
measures to exclude children with disabilities from education simply
because they were different or more difficult to educate than
nondisabled children.
It is against that backdrop that Pub. L. 94-142 was developed, with
one of its primary goals being the elimination of any exclusion of
children with disabilities from education. In the IDEA reauthorization
of 1997, Congress recognized that in certain instances school districts
needed increased flexibility to deal with safety issues while
maintaining needed due process protections in the IDEA. The following
questions and answers address: (1) the proactive requirements of the
IDEA designed to ensure that children with disabilities will be able to
adhere to school rules; (2) IDEA provisions regarding removal of
students from their current placement when their behavior significantly
violates school discipline codes; and (3) the requirement of the IDEA
for the continuation of services for children with disabilities who are
disciplined.
1. Why are there special rules about discipline for children with
disabilities?
The protections in the IDEA regarding discipline are designed to
prevent the type of often speculative and subjective decision making by
school officials that led to widespread abuses of the rights of
children with disabilities to an appropriate education in the past. For
example, in Mills v. Board of Education of the District of Columbia
(1972) the court recognized that many children were being excluded
entirely from education merely because they had been identified as
having a behavior disorder. It is important to keep in mind, however,
that these protections do not prevent school officials from maintaining
a learning environment that is safe and conducive to learning for all
children. Well run schools that have good leadership, well-trained
teachers and high standards for all students have fewer discipline
problems than schools that do not.
It is also extremely important to keep in mind that the provisions
of the statute and regulation concerning the amount of time a child
with a disability can be removed from his or her regular placement for
disciplinary reasons are only called into play if the removal
constitutes a change of placement and the parent objects to proposed
action by school officials (or objects to a refusal by school officials
to take an action) and requests a due process hearing. The discipline
rules concerning the amount of time a child can be removed from his or
her current placement essentially are exceptions to the generally
applicable requirement that a child remains in his or her current
placement during the pendency of due process, and subsequent judicial,
proceedings. (See, section 615(j) of the Act and Sec. 300.514.) If
school officials believe that a child's placement is inappropriate they
can work with the child's parent through the IEP and placement
processes to come up with an appropriate placement for the child that
will meet the needs of the child and result in his or her improved
learning and the learning of others and ensure a safe environment. In
addition to the other measures discussed in the following questions,
the discipline provisions of the IDEA allow responsible and appropriate
changes in placement of children with disabilities when their parents
do not object.
[[Page 12415]]
2. Does IDEA contain provisions that promote proactive up-front
measures that will help prevent discipline problems?
Yes. Research has shown that if teachers and other school personnel
have the knowledge and expertise to provide appropriate behavioral
interventions, future behavior problems can be greatly diminished if
not totally avoided. Appropriate staff development activities and
improved pre-service training programs at the university level with
emphasis in the area of early identification of reading and behavior
problems and appropriate interventions can help to ensure that regular
and special education teachers and other school personnel have the
needed knowledge and skills. Changes in the IDEA emphasize the need of
State and local educational agencies to work to ensure that
superintendents, principals, teachers and other school personnel are
equipped with the knowledge and skills that will enable them to
appropriately address behavior problems when they occur.
In addition, the IDEA includes provisions that focus on individual
children. If a child has behavior problems that interfere with his or
her learning or the learning of others, the IEP team must consider
whether strategies, including positive behavioral interventions,
strategies, and supports are needed to address the behavior. If the IEP
team determines that such services are needed, they must be added to
the IEP and must be provided. The Department has supported a number of
activities such as training institutes, conferences, clearinghouses and
other technical assistance and research activities on this topic to
help school personnel appropriately address behavioral concerns for
children with disabilities.
3. Can a child with a disability who is experiencing significant
disciplinary problems be removed to another placement?
Yes. Even when school personnel are appropriately trained and are
proactively addressing children's behavior issues through positive
behavioral intervention supports, interventions, and strategies, there
may be instances when a child must be removed from his or her current
placement. When there is agreement between school personnel and the
child's parents regarding a change in placement (as there frequently
is), there will be no need to bring into play the discipline provisions
of the law. Even if agreement is not possible, in general, school
officials can remove any child with a disability from his or her
regular school placement for up to 10 school days at a time, even over
the parents' objections, whenever discipline is appropriate and is
administered consistent with the treatment of nondisabled children.
Sec. 300.520(a)(1). However, school officials cannot use this authority
to repeatedly remove a child from his or her current placement if that
series of removals means the child is removed for more than 10 school
days in a school year and factors such as the length of each removal,
the total amount of time that the child is removed, and the proximity
of the removals to one another lead to the conclusion that there has
been a change in placement. Secs. 300.519-300.520(a)(1). There is no
specific limit on the number of days in a school year that a child with
a disability can be removed from his or her current placement. After a
child is removed from his or her current placement for more than 10
cumulative school days in a school year, services must be provided to
the extent required under Sec. 300.121(d), which concerns the provision
of FAPE for children suspended or expelled from school.
If the child's parents do not agree to a change of placement,
school authorities can unilaterally remove a child with a disability
from the child's regular placement for up to 45 days at a time if the
child has brought a weapon to school or to a school function, or
knowingly possessed or used illegal drugs or sold or solicited the sale
of controlled substances while at school or a school function.
Sec. 300.520(a)(2). In addition, if school officials believe that a
child with a disability is substantially likely to injure self or
others in the child's regular placement, they can ask an impartial
hearing officer to order that the child be removed to an interim
alternative educational setting for a period of up to 45 days.
Sec. 300.521. If at the end of an interim alternative educational
placement of up to 45 days, school officials believe that it would be
dangerous to return the child to the regular placement because the
child would be substantially likely to injure self or others in that
placement, they can ask an impartial hearing officer to order that the
child remain in an interim alternative educational setting for an
additional 45 days. Sec. 300.526(c). If necessary, school officials can
also request subsequent extensions of these interim alternative
educational settings for up to 45 days at a time if school officials
continue to believe that the child would be substantially likely to
injure self or others if returned to his or her regular placement.
Sec. 300.526(c)(4).
Additionally, at any time, school officials may seek to obtain a
court order to remove a child with a disability from school or to
change a child's current educational placement if they believe that
maintaining the child in the current educational placement is
substantially likely to result in injury to the child or others.
Finally, school officials can report crimes committed by children
with disabilities to appropriate law enforcement authorities to the
same extent as they do for crimes committed by nondisabled students.
Sec. 300.529.
4. Do the IDEA regulations mean that a child with a disability cannot
be removed from his or her current placement for more than ten school
days in a school year?
No. School authorities may unilaterally suspend a child with a
disability from the child's regular placement for not more than 10
school days at a time for any violation of school rules if nondisabled
children would be subjected to removal for the same offense. They also
may implement additional suspensions of up to ten school days at a time
in that same school year for separate incidents of misconduct if
educational services are provided for the remainder of the removals, to
the extent required under Sec. 300.121(d). (See the next question
regarding the provision of educational services during periods of
removal.) However, school authorities may not remove a child in a
series of short-term suspensions (up to 10 school days at a time), if
these suspensions constitute a pattern that is a change of placement
because the removals cumulate to more than 10 school days in a school
year and because of factors such as the length of each removal, the
total amount of time the child is removed, and the proximity of the
removals to one another. But not all series of removals that cumulate
to more than 10 school days in a school year would constitute a pattern
under Sec. 300.519(b).
Of course, in the case of less serious infractions, schools can
address the misconduct through appropriate instructional and/or related
services, including conflict management, behavior management
strategies, and measures such as study carrels, time-outs, and
restrictions in privileges, so long as they are not inconsistent with
the child's IEP. If a child's IEP or behavior intervention plan
addresses a particular behavior, it generally would be inappropriate to
utilize some other
[[Page 12416]]
response, such as suspension, to that behavior.
5. What must a school district do when removing a child with a
disability from his or her current placement for the eleventh
cumulative day in a school year?
Beginning on the eleventh cumulative day in a school year that a
child with a disability is removed from his or her current placement,
the school district must provide those services that school personnel
(for example, the school administrator or other appropriate school
personnel) in consultation with the child's special education teacher
determine to be necessary to enable the child to appropriately progress
in the general curriculum and appropriately advance toward achieving
the goals set out in the child's IEP. School personnel would determine
where those services would be provided. This means that for the
remainder of the removal that includes the eleventh day, and for any
subsequent removals, services must be provided to the extent determined
necessary, while the removal continues. Sec. 300.121(d)(2) and (3).
Not later than 10 business days after removing a child with a
disability for more than 10 school days in a school year, the school
district must convene an IEP team meeting to develop a behavioral
assessment plan if the district has not already conducted a functional
behavioral assessment and implemented a behavioral intervention plan
for the child. If a child with a disability who is being removed for
the eleventh cumulative school day in a school year already has a
behavioral intervention plan, the school district must convene the IEP
team (either before or not later than 10 business days after first
removing the child for more than 10 school days in a school year) to
review the plan and its implementation, and modify the plan and its
implementation as necessary to address the behavior. Sec. 300.520(b).
A manifestation determination would not be required unless the
removal that includes the eleventh cumulative school day of removal in
a school year is a change of placement. Sec. 300.523(a).
6. Does the IDEA or its regulations mean that a child with a disability
can never be suspended for more than 10 school days at a time or
expelled for behavior that is not a manifestation of his or her
disability?
No. If the IEP team concludes that the child's behavior was not a
manifestation of the child's disability, the child can be disciplined
in the same manner as nondisabled children, except that appropriate
educational services must be provided. Sec. 300.524(a). This means that
if nondisabled children are long-term suspended or expelled for a
particular violation of school rules, the child with disabilities may
also be long-term suspended or expelled. Educational services must be
provided to the extent the child's IEP team determines necessary to
enable the child to appropriately progress in the general curriculum
and appropriately advance toward the goals set out in the child's IEP.
Sec. 300.121(d)(2).
7. Does the statutory language ``carries a weapon to school or to a
school function'' cover instances in which the child acquires a weapon
at school?
Yes. Although the statutory language ``carries a weapon to school
or to a school function'' could be viewed as ambiguous on this point,
in light of the clear intent of Congress in the Act to expand the
authority of school personnel to immediately address school weapons
offenses, the Department's opinion is that this language also covers
instances in which the child is found to have a weapon that he or she
obtained while at school.
Goals 2000: Educate America Act
The Goals 2000: Educate America Act (Goals 2000) focuses the
Nation's education reform efforts on the eight National Education Goals
and provides a framework for meeting them. Goals 2000 promotes new
partnerships to strengthen schools and expands the Department's
capacities for helping communities to exchange ideas and obtain
information needed to achieve the goals.
These final regulations address the following National Education
Goals:
* All children in America will start school ready to learn.
* The high school graduation rate will increase to at least
90 percent.
* All students will leave grades 4, 8, and 12 having
demonstrated competency in challenging subject matter, including
English, mathematics, science, foreign languages, civics and
government, economics, arts, history, and geography; and every school
in America will ensure that all students learn to use their minds well,
so they may be prepared for responsible citizenship, further learning,
and productive employment in our Nation's modern economy.
* United States students will be first in the world in
mathematics and science achievement.
* Every adult American will be literate and will possess the
knowledge and skills necessary to compete in a global economy and
exercise the rights and responsibilities of citizenship.
* Every school in the United States will be free of drugs,
violence, and the unauthorized presence of firearms and alcohol and
will offer a disciplined environment conducive to learning.
* The Nation's teaching force will have access to programs
for the continued improvement of their professional skills and the
opportunity to acquire the knowledge and skills needed to instruct and
prepare all American students for the next century.
* Every school will promote partnerships that will increase
parental involvement and participation in promoting the social,
emotional, and academic growth of children.
Executive Order 12866
This is a significant regulatory action under section 3(f)(1) of
Executive Order 12866 and, therefore, these final regulations have been
reviewed by the Office of Management and Budget in accordance with that
order. Because it has been determined that these regulations are
economically significant under the order, the Department has conducted
an economic analysis, which is provided in Attachment 2. This
regulation has also been determined to be a major rule under the Small
Business Regulatory Enforcement Fairness Act of 1996.
These final regulations implement changes made to the Individuals
with Disabilities Education Act by the IDEA Amendments of 1997 and make
other changes determined by the Secretary as necessary for
administering this program effectively and efficiently.
The IDEA Amendments of 1997 made a number of significant changes to
the law. While retaining the basic rights and protections that have
been in the law since 1975, the amendments strengthened the focus of
the law on improving results for children with disabilities. The
amendments accomplished this through changes that promote the early
identification of, and provision of services to, children with
disabilities, the development of individualized education programs that
enhance the participation of children with disabilities in the general
curriculum, the education of children with disabilities with
nondisabled children, higher expectations for children with
disabilities and accountability for their educational results, the
involvement of parents in their children's education, and reducing
unnecessary paperwork and other burdens to better direct resources to
improved teaching and learning.
[[Page 12417]]
All of these objectives are reflected in these final regulations,
which largely reflect the changes to the statute made by IDEA
Amendments of 1997.
In assessing the potential costs and benefits--both quantitative
and qualitative--of these final regulations, the Secretary has
determined that the benefits of these final regulations justify the
costs.
The Secretary has also determined that this regulatory action does
not unduly interfere with State, local, and tribal governments in the
exercise of their governmental functions.
Paperwork Reduction Act of 1995
Sections 300.110, 300.121, 300.123-300.130, 300.133, 300.135-
300.137, 300.141-300.145, 300.155-300.156, 300.180, 300.192, 300.220-
300.221, 300.240, 300.280-300.281, 300.284, 300.341, 300.343, 300.345,
300.347, 300.380-300.382, 300.402, 300.482-300.483, 300.503-300.504,
300.506, 300.508, 300.510-300.511, 300.532, 300.535, 300.543, 300.561-
300.563, 300.565, 300.569, 300.571-300.572, 300.574-300.575, 300.589,
300.600, 300.653, 300.660-300.662, 300.750-300.751, 300.754, 303.403,
303.510-303.512, and 303.520 contain information collection
requirements. As required by the Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)), the Department of Education has submitted a copy of
these sections to the Office of Management and Budget (OMB) for its
review.
Collection of Information: Assistance for Education of All Children
with Disabilities: Complaint Procedures, Secs. 300.600-300.662 and
303.510-303.512. Each SEA is required to adopt written procedures for
resolving any complaint that meets the requirements in these proposed
regulations.
Annual reporting and recordkeeping burden for this collection of
information is estimated to average 10 hours to issue a written
decision to a complaint. There is an estimated average annual total of
1079 complaints submitted for processing. Thus, the total annual
reporting and recordkeeping burden for this collection is estimated to
be 10,790 hours.
Collection of Information: Assistance for Education of All Children
with Disabilities: State Eligibility, Secs. 300.110, 300.121, 300.123-
300.130, 300.133, 300.135-300.137, 300.141-300.145, 300.155-300.156,
300.280-300.281, 300.284, 300.380-300.382, 300.402, 300.482-300.483,
300.510-300.511, 300.589, 300.600, 300.653, 303.403, and 303.520. Each
State must have on file with the Secretary policies and procedures to
demonstrate to the satisfaction of the Secretary that the State meets
the specified conditions for assistance under this part. In the past,
States were required to submit State plans every three years with one-
third of the entities submitting plans to the Secretary each year. With
the new statute, States will no longer be required to submit State
plans. Rather, the policies and procedures currently approved by, and
on file with, the Secretary that are not inconsistent with the IDEA
Amendments of 1997 will remain in effect unless amended.
Annual reporting and recordkeeping burden for this collection of
information is estimated to average 30 hours for each response for 58
respondents, including the time for reviewing instructions, searching
existing data sources, gathering and maintaining the data needed, and
completing and reviewing the collection of information. Thus, the total
annual reporting and recordkeeping burden for this collection is
estimated to be 1740 hours.
Collection of Information: Assistance for Education of All Children
with Disabilities: LEA Eligibility, Secs. 300.180, 300.192, 300.220-
300.221, 300.240, 300.341, 300.343, 300.345, 300.347, 500.503-300.504,
300.532, 300.535, 300.543, 300.561-300.563, 300.565, 300.569, 300.571-
300.572, and 300.574-300.575. Each local educational agency (LEA) and
each State agency must have on file with the State educational agency
(SEA) information to demonstrate that the agency meets the specified
requirements for assistance under this part. In the past, each LEA was
required to submit a periodic application to the SEA in order to
establish its eligibility for assistance under this part. Under the new
statutory changes, LEAs are no longer required to submit such
applications. Rather, the policies and procedures currently approved
by, and on file with, the SEA that are not inconsistent with the IDEA
Amendments of 1997 will remain in effect unless amended.
Annual reporting and recordkeeping burden for this collection of
information is estimated to average 2 hours for each response for
15,376 respondents, including the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection of information.
Thus, the total annual reporting and recordkeeping burden for this
collection is estimated to be 30,752 hours. The Secretary invites
comment on the estimated time it will take for LEAs to meet this
reporting and recordkeeping requirement.
Collection of Information: Assistance for Education of All Children
with Disabilities: List of Hearing Officers and Mediators,
Secs. 300.506 and 300.508. Each State must 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. Each public agency must, also, keep a list of the persons who
serve as hearing officers.
Annual reporting and recordkeeping burden for this collection of
information is estimated to average 25 hours for each response for 58
respondents, including the time for reviewing instructions, searching
existing data sources, gathering and maintaining the data needed, and
completing and reviewing the collection of information. Thus, the total
annual reporting and recordkeeping burden for this collection is
estimated to be 3050 hours.
Collection of Information: Assistance for Education of All Children
with Disabilities: Report of Children and Youth with Disabilities
Receiving Special Education, Secs. 300.750-300.751, and 300.754. Each
SEA must submit an annual report of children served.
Annual reporting and recordkeeping burden for this collection of
information is estimated to average 262 hours for each response for 58
respondents, including the time for reviewing instructions, searching
existing data sources, gathering and maintaining the data needed, and
completing and reviewing the collection of information. Thus, the total
annual reporting and recordkeeping burden for this collection is
estimated to be 15,196 hours.
Organizations and individuals desiring to submit comments on the
information collection requirements should direct them to the Office of
Information and Regulatory Affairs, OMB, room 10235, New Executive
Office Building, Washington, DC 20503; Attention: Desk Officer for U.S.
Department of Education.
The Department considers comments by the public on these proposed
collections of information in--
* Evaluating whether the proposed collections of information
are necessary for the proper performance of the functions of the
Department, including whether the information will have practical
utility;
* Evaluating the accuracy of the Department's estimate of
the burden of the proposed collections of information, including the
validity of the methodology and assumptions used;
* Enhancing the quality, usefulness, and clarity of the
information to be collected; and
[[Page 12418]]
* Minimizing the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology; e.g., permitting
electronic submission of responses.
OMB is required to make a decision concerning the collections of
information contained in these proposed regulations between 30 and 60
days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. This does not affect
the deadline for the public to comment to the Department on the
proposed regulations.
Regulatory Flexibility Act Certification
The Secretary certifies that these final regulations will not have
a significant economic impact on a substantial number of small
entities. The small entities that would be affected by these
regulations are small local educational agencies receiving Federal
funds under this program. These regulations would not have a
significant economic impact on the small LEAs affected because these
regulations impose minimal requirements beyond those that would
otherwise be required by the statute. In addition, increased costs
imposed by these regulations on LEAs are expected to be offset by
savings to be realized by LEAs.
Intergovernmental Review
This program is subject to the requirements of Executive Order
12372 and the regulations in 34 CFR part 79. The objective of the
Executive order is to foster an intergovernmental partnership and a
strengthened federalism by relying on processes developed by State and
local governments for coordination and review of proposed Federal
financial assistance.
In accordance with the order, this document is intended to provide
early notification of the Department's specific plans and actions for
this program.
Assessment of Educational Impact
In the NPRM published on October 22, 1997, the Secretary requested
comments on whether the proposed regulations would require transmission
of information that is being gathered by or is available from any other
agency or authority of the United States.
Based on the response to the NPRM and on its own review, the
Department has determined that the regulations in this document do not
require transmission of information that is being gathered by or is
available from any other agency or authority of the United States.
Electronic Access to This Document
Anyone may also view this document, as well as all other Department
of Education documents published in the Federal Register, in text or
portable document format (pdf) on the World Wide Web at either of the
following sites:
http://gcs.ed.gov/fedreg.htm
http://www.ed.gov/news.html
To use the pdf you must have the Adobe Acrobat Reader Program with
Search, which is available free at either of the previous sites. If you
have questions about using the pdf, call the U.S. Government Printing
Office toll free at 1-888-293-6498.
Anyone may also view these documents in text copy only on an
electronic bulletin board of the Department. Telephone: (202) 219-1511
or, toll free, 1-800-222-4922. The documents are located under Option
G--Files/Announcements, Bulletins and Press Releases.
Note: The official version of this document is the document
published in the Federal Register.
List of Subjects
34 CFR Part 300
Administrative practice and procedure, Education of individuals
with disabilities, Elementary and secondary education, Equal
educational opportunity, Grant programs-- education, Privacy, Private
schools, Reporting and recordkeeping requirements.
34 CFR Part 303
Education of individuals with disabilities, Grant programs--
education, Infants and children, Reporting and recordkeeping
requirements.
Dated: March 4, 1999.
Richard W. Riley,
Secretary of Education.
(Catalog of Federal Domestic Assistance Number: 84.027 Assistance to
States for the Education of Children with Disabilities, and 84.181
Early Intervention Program for Infants and Toddlers with
Disabilities)
The Secretary amends Title 34 of the Code of Federal Regulations by
revising part 300 and amending part 303 as follows:
1. Part 300 is revised to read as follows:
PART 300--ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH
DISABILITIES
Subpart A--General
Purposes, Applicability, and Regulations That Apply to This Program
Sec.
300.1 Purposes.
300.2 Applicability of this part to State, local, and private
agencies.
Definitions Used in This Part
300.3 Regulations that apply.
300.4 Act.
300.5 Assistive technology device.
300.6 Assistive technology service.
300.7 Child with a disability.
300.8 Consent.
300.9 Day; business day; school day.
300.10 Educational service agency.
300.11 Equipment.
300.12 Evaluation.
300.13 Free appropriate public education.
300.14 Include.
300.15 Individualized education program.
300.16 Individualized education program team.
300.17 Individualized family service plan.
300.18 Local educational agency.
300.19 Native language.
300.20 Parent.
300.21 Personally identifiable.
300.22 Public agency.
300.23 Qualified personnel.
300.24 Related services.
300.25 Secondary school.
300.26 Special education.
300.27 State.
300.28 Supplementary aids and services.
300.29 Transition services.
300.30 Definitions in EDGAR.
Subpart B--State and Local Eligibility
State Eligibility--General
300.110 Condition of assistance.
300.111 Exception for prior State policies and procedures on file
with the Secretary.
300.112 Amendments to State policies and procedures.
300.113 Approval by the Secretary.
300.114--300.120 [Reserved]
State Eligibility--Specific Conditions
300.121 Free appropriate public education (FAPE).
300.122 Exception to FAPE for certain ages.
300.123 Full educational opportunity goal (FEOG).
300.124 FEOG--timetable.
300.125 Child find.
300.126 Procedures for evaluation and determination of eligibility.
300.127 Confidentiality of personally identifiable information.
300.128 Individualized education programs.
300.129 Procedural safeguards.
300.130 Least restrictive environment.
300.131 [Reserved]
300.132 Transition of children from Part C to preschool programs.
300.133 Children in private schools.
300.134 [Reserved]
[[Page 12419]]
300.135 Comprehensive system of personnel development.
300.136 Personnel standards.
300.137 Performance goals and indicators.
300.138 Participation in assessments.
300.139 Reports relating to assessments.
300.140 [Reserved]
300.141 SEA responsibility for general supervision.
300.142 Methods of ensuring services.
300.143 SEA implementation of procedural safeguards.
300.144 Hearings relating to LEA eligibility.
300.145 Recovery of funds for misclassified children.
300.146 Suspension and expulsion rates.
300.147 Additional information if SEA provides direct services.
300.148 Public participation.
300.149 [Reserved]
300.150 State advisory panel.
300.151 [Reserved]
300.152 Prohibition against commingling.
300.153 State-level nonsupplanting.
300.154 Maintenance of State financial support.
300.155 Policies and procedures for use of Part B funds.
300.156 Annual description of use of Part B funds.
LEA and State Agency Eligibility--General
300.180 Condition of assistance.
300.181 Exception for prior LEA or State agency policies and
procedures on file with the SEA.
300.182 Amendments to LEA policies and procedures.
300.183 [Reserved]
300.184 Excess cost requirement.
300.185 Meeting the excess cost requirement.
300.186--300.189 [Reserved]
300.190 Joint establishment of eligibility.
300.191 [Reserved]
300.192 Requirements for establishing eligibility.
300.193 [Reserved]
300.194 State agency eligibility.
300.195 [Reserved]
300.196 Notification of LEA or State agency in case of
ineligibility.
300.197 LEA and State agency compliance.
LEA and State Agency Eligibility--Specific Conditions
300.220 Consistency with State policies.
300.221 Implementation of CSPD.
300.222--300.229 [Reserved]
300.230 Use of amounts.
300.231 Maintenance of effort.
300.232 Exception to maintenance of effort.
300.233 Treatment of federal funds in certain fiscal years.
300.234 Schoolwide programs under title I of the ESEA.
300.235 Permissive use of funds.
300.236--300.239 [Reserved]
300.240 Information for SEA.
300.241 Treatment of charter schools and their students.
300.242 Public information.
300.243 [Reserved]
300.244 Coordinated services system.
School-Based Improvement Plan
300.245 School-based improvement plan.
300.246 Plan requirements.
300.247 Responsibilities of the LEA.
300.248 Limitation.
300.249 Additional requirements.
300.250 Extension of plan.
Secretary of the Interior--Eligibility
300.260 Submission of information.
300.261 Public participation.
300.262 Use of Part B funds.
300.263 Plan for coordination of services.
300.264 Definitions.
300.265 Establishment of advisory board.
300.266 Annual report by advisory board.
300.267 Applicable regulations.
Public Participation
300.280 Public hearings before adopting State policies and
procedures.
300.281 Notice.
300.282 Opportunity to participate; comment period.
300.283 Review of public comments before adopting policies and
procedures.
300.284 Publication and availability of approved policies and
procedures.
Subpart C--Services
Free Appropriate Public Education
300.300 Provision of FAPE.
300.301 FAPE--methods and payments.
300.302 Residential placement.
300.303 Proper functioning of hearing aids.
300.304 Full educational opportunity goal.
300.305 Program options.
300.306 Nonacademic services.
300.307 Physical education.
300.308 Assistive technology.
300.309 Extended school year services.
300.310 [Reserved]
300.311 FAPE requirements for students with disabilities in adult
prisons.
300.312 Children with disabilities in public charter schools.
300.313 Children experiencing developmental delays.
Evaluations and Reevaluations
300.320 Initial evaluations.
300.321 Reevaluations.
300.322--300.324 [Reserved]
Individualized Education Programs
300.340 Definitions related to IEPs.
300.341 Responsibility of SEA and other public agencies for IEPs.
300.342 When IEPs must be in effect.
300.343 IEP Meetings.
300.344 IEP team.
300.345 Parent participation.
300.346 Development, review, and revision of IEP.
300.347 Content of IEP.
300.348 Agency responsibilities for transition services.
300.349 Private school placements by public agencies.
300.350 IEPs--accountability.
Direct Services by the Sea
300.360 Use of LEA allocation for direct services.
300.361 Nature and location of services.
300.362--300.369 [Reserved]
300.370 Use of SEA allocations.
300.371 [Reserved]
300.372 Nonapplicability of requirements that prohibit commingling
and supplanting of funds.
Comprehensive System of Personnel Development (CSPD)
300.380 General CSPD requirements.
300.381 Adequate supply of qualified personnel.
300.382 Improvement strategies.
300.383--300.387 [Reserved]
Subpart D--Children in Private Schools
Children With Disabilities in Private Schools Placed or Referred by
Public Agencies
300.400 Applicability of Secs. 300.400-300.402.
300.401 Responsibility of State educational agency.
300.402 Implementation by State educational agency.
Children With Disabilities Enrolled by Their Parents in Private Schools
When FAPE is at Issue
300.403 Placement of children by parents if FAPE is at issue.
Children With Disabilities Enrolled by Their Parents in Private Schools
300.450 Definition of ``private school children with
disabilities.''
300.451 Child find for private school children with disabilities.
300.452 Provision of services--basic requirement.
300.453 Expenditures.
300.454 Services determined.
300.455 Services provided.
300.456 Location of services; transportation.
300.457 Complaints.
300.458 Separate classes prohibited.
300.459 Requirement that funds not benefit a private school.
300.460 Use of public school personnel.
300.461 Use of private school personnel.
300.462 Requirements concerning property, equipment, and supplies
for the benefit of private school children with disabilities.
Procedures for By-Pass
300.480 By-pass--general.
300.481 Provisions for services under a by-pass.
300.482 Notice of intent to implement a by-pass.
300.483 Request to show cause.
300.484 Show cause hearing.
300.485 Decision.
300.486 Filing requirements.
300.487 Judicial review.
Subpart E--Procedural Safeguards
Due Process Procedures for Parents and Children
300.500 General responsibility of public agencies; definitions.
300.501 Opportunity to examine records; parent participation in
meetings.
300.502 Independent educational evaluation.
[[Page 12420]]
300.503 Prior notice by the public agency; content of notice.
300.504 Procedural safeguards notice.
300.505 Parental consent.
300.506 Mediation.
300.507 Impartial due process hearing; parent notice.
300.508 Impartial hearing officer.
300.509 Hearing rights.
300.510 Finality of decision; appeal; impartial review.
300.511 Timelines and convenience of hearings and reviews.
300.512 Civil action.
300.513 Attorneys' fees.
300.514 Child's status during proceedings.
300.515 Surrogate parents.
300.516 [Reserved]
300.517 Transfer of parental rights at age of majority.
Discipline Procedures
300.519 Change of placement for disciplinary removals.
300.520 Authority of school personnel.
300.521 Authority of hearing officer.
300.522 Determination of setting.
300.523 Manifestation determination review.
300.524 Determination that behavior was not manifestation of
disability.
300.525 Parent appeal.
300.526 Placement during appeals.
300.527 Protections for children not yet eligible for special
education and related services.
300.528 Expedited due process hearings.
300.529 Referral to and action by law enforcement and judicial
authorities.
Procedures for Evaluation and Determination of Eligibility
300.530 General.
300.531 Initial evaluation.
300.532 Evaluation procedures.
300.533 Determination of needed evaluation data.
300.534 Determination of eligibility.
300.535 Procedures for determining eligibility and placement.
300.536 Reevaluation.
Additional Procedures for Evaluating Children With Specific Learning
Disabilities
300.540 Additional team members.
300.541 Criteria for determining the existence of a specific
learning disability.
300.542 Observation.
300.543 Written report.
Least Restrictive Environment (LRE)
300.550 General LRE requirements.
300.551 Continuum of alternative placements.
300.552 Placements.
300.553 Nonacademic settings.
300.554 Children in public or private institutions.
300.555 Technical assistance and training activities.
300.556 Monitoring activities.
Confidentiality of Information
300.560 Definitions.
300.561 Notice to parents.
300.562 Access rights.
300.563 Record of access.
300.564 Records on more than one child.
300.565 List of types and locations of information.
300.566 Fees.
300.567 Amendment of records at parent's request.
300.568 Opportunity for a hearing.
300.569 Result of hearing.
300.570 Hearing procedures.
300.571 Consent.
300.572 Safeguards.
300.573 Destruction of information.
300.574 Children's rights.
300.575 Enforcement.
300.576 Disciplinary information.
300.577 Department use of personally identifiable information.
Department Procedures
300.580 Determination by the Secretary that a State is eligible.
300.581 Notice and hearing before determining that a State is not
eligible.
300.582 Hearing official or panel.
300.583 Hearing procedures.
300.584 Initial decision; final decision.
300.585 Filing requirements.
300.586 Judicial review.
300.587 Enforcement.
300.588 [Reserved]
300.589 Waiver of requirement regarding supplementing and not
supplanting with Part B funds.
Subpart F--State Administration
General
300.600 Responsibility for all educational programs.
300.601 Relation of Part B to other Federal programs.
300.602 State-level activities.
Use of Funds
300.620 Use of funds for State administration.
300.621 Allowable costs.
300.622 Subgrants to LEAs for capacity-building and improvement.
300.623 Amount required for subgrants to LEAs.
300.624 State discretion in awarding subgrants.
State Advisory Panel
300.650 Establishment of advisory panels.
300.651 Membership.
300.652 Advisory panel functions.
300.653 Advisory panel procedures.
State Complaint Procedures
300.660 Adoption of State complaint procedures.
300.661 Minimum State complaint procedures.
300.662 Filing a complaint.
Subpart G--Allocation of Funds; Reports
Allocations
300.700 Special definition of the term ``State.''
300.701 Grants to States.
300.702 Definition.
300.703 Allocations to States.
300.704-300.705 [Reserved]
300.706 Permanent formula.
300.707 Increase in funds.
300.708 Limitation.
300.709 Decrease in funds.
300.710 Allocation for State in which by-pass is implemented for
private school children with disabilities.
300.711 Subgrants to LEAs.
300.712 Allocations to LEAs.
300.713 Former Chapter 1 State agencies.
300.714 Reallocation of LEA funds.
300.715 Payments to the Secretary of the Interior for the education
of Indian children.
300.716 Payments for education and services for Indian children
with disabilities aged 3 through 5.
300.717 Outlying areas and freely associated States.
300.718 Outlying area--definition.
300.719 Limitation for freely associated States.
300.720 Special rule.
300.721 [Reserved]
300.722 Definition.
Reports
300.750 Annual report of children served--report requirement.
300.751 Annual report of children served--information required in
the report.
300.752 Annual report of children served--certification.
300.753 Annual report of children served--criteria for counting
children.
300.754 Annual report of children served--other responsibilities of
the SEA.
300.755 Disproportionality.
300.756 Acquisition of equipment; construction or alteration of
facilities.
Appendix A to Part 300--Notice of Interpretation
Appendix B to Part 300--Index for IDEA--Part B Regulations
Authority: 20 U.S.C. 1411-1420, unless otherwise noted.
Subpart A--General
Purposes, Applicability, and Regulations That Apply to This Program
Sec. 300.1 Purposes.
The purposes of this part are--
(a) To ensure that all children with disabilities have available to
them a free appropriate public education that emphasizes special
education and related services designed to meet their unique needs and
prepare them for employment and independent living;
(b) To ensure that the rights of children with disabilities and
their parents are protected;
(c) To assist States, localities, educational service agencies, and
Federal agencies to provide for the education of all children with
disabilities; and
(d) To assess and ensure the effectiveness of efforts to educate
children with disabilities.
(Authority: 20 U.S.C. 1400 note)
[[Page 12421]]
Sec. 300.2 Applicability of this part to State, local, and private
agencies.
(a) States. This part applies to each State that receives payments
under Part B of the Act.
(b) Public agencies within the State. The provisions of this part--
(1) Apply to all political subdivisions of the State that are
involved in the education of children with disabilities, including--
(i) The State educational agency (SEA);
(ii) Local educational agencies (LEAs), educational service
agencies (ESAs), and public charter schools that are not otherwise
included as LEAs or ESAs and are not a school of an LEA or ESA;
(iii) Other State agencies and schools (such as Departments of
Mental Health and Welfare and State schools for children with deafness
or children with blindness); and
(iv) State and local juvenile and adult correctional facilities;
and
(2) Are binding on each public agency in the State that provides
special education and related services to children with disabilities,
regardless of whether that agency is receiving funds under Part B.
(c) Private schools and facilities. Each public agency in the State
is responsible for ensuring that the rights and protections under Part
B of the Act are given to children with disabilities--
(1) Referred to or placed in private schools and facilities by that
public agency; or
(2) Placed in private schools by their parents under the provisions
of Sec. 300.403(c).
(Authority: 20 U.S.C. 1412)
Sec. 300.3 Regulations that apply.
The following regulations apply to this program:
(a) 34 CFR part 76 (State-Administered Programs) except for
Secs. 76.125-76.137 and 76.650-76.662.
(b) 34 CFR part 77 (Definitions).
(c) 34 CFR part 79 (Intergovernmental Review of Department of
Education Programs and Activities).
(d) 34 CFR part 80 (Uniform Administrative Requirements for Grants
and Cooperative Agreements to State and Local Governments).
(e) 34 CFR part 81 (General Education Provisions Act--Enforcement).
(f) 34 CFR part 82 (New Restrictions on Lobbying).
(g) 34 CFR part 85 (Government-wide Debarment and Suspension
(Nonprocurement) and Government-wide Requirements for Drug-Free
Workplace (Grants)).
(h) The regulations in this part--34 CFR part 300 (Assistance for
Education of Children with Disabilities).
(Authority: 20 U.S.C. 1221e-3(a)(1))
Definitions Used in This Part
Sec. 300.4 Act.
As used in this part, Act means the Individuals with Disabilities
Education Act (IDEA), as amended.
(Authority: 20 U.S.C. 1400(a))
Sec. 300.5 Assistive technology device.
As used in this part, Assistive technology device means any item,
piece of equipment, or product system, whether acquired commercially
off the shelf, modified, or customized, that is used to increase,
maintain, or improve the functional capabilities of a child with a
disability.
(Authority: 20 U.S.C. 1401(1))
Sec. 300.6 Assistive technology service.
As used in this part, Assistive technology service means any
service that directly assists a child with a disability in the
selection, acquisition, or use of an assistive technology device.
The term includes--
(a) The evaluation of the needs of a child with a disability,
including a functional evaluation of the child in the child's customary
environment;
(b) Purchasing, leasing, or otherwise providing for the acquisition
of assistive technology devices by children with disabilities;
(c) Selecting, designing, fitting, customizing, adapting, applying,
maintaining, repairing, or replacing assistive technology devices;
(d) Coordinating and using other therapies, interventions, or
services with assistive technology devices, such as those associated
with existing education and rehabilitation plans and programs;
(e) Training or technical assistance for a child with a disability
or, if appropriate, that child's family; and
(f) Training or technical assistance for professionals (including
individuals providing education or rehabilitation services), employers,
or other individuals who provide services to, employ, or are otherwise
substantially involved in the major life functions of that child.
(Authority: 20 U.S.C. 1401(2))
Sec. 300.7 Child with a disability.
(a) General. (1) As used in this part, the term child with a
disability means a child evaluated in accordance with Secs. 300.530-
300.536 as having mental retardation, a hearing impairment including
deafness, a speech or language impairment, a visual impairment
including blindness, serious emotional disturbance (hereafter referred
to as emotional disturbance), an orthopedic impairment, autism,
traumatic brain injury, an other health impairment, a specific learning
disability, deaf-blindness, or multiple disabilities, and who, by
reason thereof, needs special education and related services.
(2)(i) Subject to paragraph (a)(2)(ii) of this section, if it is
determined, through an appropriate evaluation under Secs. 300.530-
300.536, that a child has one of the disabilities identified in
paragraph (a)(1) of this section, but only needs a related service and
not special education, the child is not a child with a disability under
this part.
(ii) If, consistent with Sec. 300.26(a)(2), the related service
required by the child is considered special education rather than a
related service under State standards, the child would be determined to
be a child with a disability under paragraph (a)(1) of this section.
(b) Children aged 3 through 9 experiencing developmental delays.
The term child with a disability for children aged 3 through 9 may, at
the discretion of the State and LEA and in accordance with
Sec. 300.313, include a child--
(1) Who is experiencing developmental delays, as defined by the
State and as measured by appropriate diagnostic instruments and
procedures, in one or more of the following areas: physical
development, cognitive development, communication development, social
or emotional development, or adaptive development; and
(2) Who, by reason thereof, needs special education and related
services.
(c) Definitions of disability terms. The terms used in this
definition are defined as follows:
(1)(i) Autism means a developmental disability significantly
affecting verbal and nonverbal communication and social interaction,
generally evident before age 3, that adversely affects a child's
educational performance. Other characteristics often associated with
autism are engagement in repetitive activities and stereotyped
movements, resistance to environmental change or change in daily
routines, and unusual responses to sensory experiences. The term does
not apply if a child's educational performance is adversely affected
primarily because the child has an emotional disturbance, as defined in
paragraph (b)(4) of this section.
(ii) A child who manifests the characteristics of ``autism'' after
age 3 could be diagnosed as having ``autism'' if the criteria in
paragraph (c)(1)(i) of this section are satisfied.
[[Page 12422]]
(2) Deaf-blindness means concomitant hearing and visual
impairments, the combination of which causes such severe communication
and other developmental and educational needs that they cannot be
accommodated in special education programs solely for children with
deafness or children with blindness.
(3) Deafness means a hearing impairment that is so severe that the
child is impaired in processing linguistic information through hearing,
with or without amplification, that adversely affects a child's
educational performance.
(4) Emotional disturbance is defined as follows:
(i) The term means a condition exhibiting one or more of the
following characteristics over a long period of time and to a marked
degree that adversely affects a child's educational performance:
(A) An inability to learn that cannot be explained by intellectual,
sensory, or health factors.
(B) An inability to build or maintain satisfactory interpersonal
relationships with peers and teachers.
(C) Inappropriate types of behavior or feelings under normal
circumstances.
(D) A general pervasive mood of unhappiness or depression.
(E) A tendency to develop physical symptoms or fears associated
with personal or school problems.
(ii) The term includes schizophrenia. The term does not apply to
children who are socially maladjusted, unless it is determined that
they have an emotional disturbance.
(5) Hearing impairment means an impairment in hearing, whether
permanent or fluctuating, that adversely affects a child's educational
performance but that is not included under the definition of deafness
in this section.
(6) Mental retardation means significantly subaverage general
intellectual functioning, existing concurrently with deficits in
adaptive behavior and manifested during the developmental period, that
adversely affects a child's educational performance.
(7) Multiple disabilities means concomitant impairments (such as
mental retardation-blindness, mental retardation-orthopedic impairment,
etc.), the combination of which causes such severe educational needs
that they cannot be accommodated in special education programs solely
for one of the impairments. The term does not include deaf-blindness.
(8) Orthopedic impairment means a severe orthopedic impairment that
adversely affects a child's educational performance. The term includes
impairments caused by congenital anomaly (e.g., clubfoot, absence of
some member, etc.), impairments caused by disease (e.g., poliomyelitis,
bone tuberculosis, etc.), and impairments from other causes (e.g.,
cerebral palsy, amputations, and fractures or burns that cause
contractures).
(9) Other health impairment means having limited strength, vitality
or alertness, including a heightened alertness to environmental
stimuli, that results in limited alertness with respect to the
educational environment, that--
(i) Is due to chronic or acute health problems such as asthma,
attention deficit disorder or attention deficit hyperactivity disorder,
diabetes, epilepsy, a heart condition, hemophilia, lead poisoning,
leukemia, nephritis, rheumatic fever, and sickle cell anemia; and
(ii) Adversely affects a child's educational performance.
(10) Specific learning disability is defined as follows:
(i) General. The term means a disorder in one or more of the basic
psychological processes involved in understanding or in using language,
spoken or written, that may manifest itself in an imperfect ability to
listen, think, speak, read, write, spell, or to do mathematical
calculations, including conditions such as perceptual disabilities,
brain injury, minimal brain dysfunction, dyslexia, and developmental
aphasia.
(ii) Disorders not included. The term does not include learning
problems that are primarily the result of visual, hearing, or motor
disabilities, of mental retardation, of emotional disturbance, or of
environmental, cultural, or economic disadvantage.
(11) Speech or language impairment means a communication disorder,
such as stuttering, impaired articulation, a language impairment, or a
voice impairment, that adversely affects a child's educational
performance.
(12) Traumatic brain injury means an acquired injury to the brain
caused by an external physical force, resulting in total or partial
functional disability or psychosocial impairment, or both, that
adversely affects a child's educational performance. The term applies
to open or closed head injuries resulting in impairments in one or more
areas, such as cognition; language; memory; attention; reasoning;
abstract thinking; judgment; problem-solving; sensory, perceptual, and
motor abilities; psychosocial behavior; physical functions; information
processing; and speech. The term does not apply to brain injuries that
are congenital or degenerative, or to brain injuries induced by birth
trauma.
(13) Visual impairment including blindness means an impairment in
vision that, even with correction, adversely affects a child's
educational performance. The term includes both partial sight and
blindness.
(Authority: 20 U.S.C. 1401(3)(A) and (B); 1401(26))
Sec. 300.8 Consent.
As used in this part, the term consent has the meaning given that
term in Sec. 300.500(b)(1).
(Authority: 20 U.S.C. 1415(a))
Sec. 300.9 Day; business day; school day.
As used in this part, the term--
(a) Day means calendar day unless otherwise indicated as business
day or school day;
(b) Business day means Monday through Friday, except for Federal
and State holidays (unless holidays are specifically included in the
designation of business day, as in Sec. 300.403(d)(1)(ii)); and
(c)(1) School day means any day, including a partial day, that
children are in attendance at school for instructional purposes.
(2) The term school day has the same meaning for all children in
school, including children with and without disabilities.
(Authority: 20 U.S.C. 1221e-3)
Sec. 300.10 Educational service agency.
As used in this part, the term educational service agency--
(a) Means a regional public multiservice agency--
(1) Authorized by State law to develop, manage, and provide
services or programs to LEAs; and
(2) Recognized as an administrative agency for purposes of the
provision of special education and related services provided within
public elementary and secondary schools of the State;
(b) Includes any other public institution or agency having
administrative control and direction over a public elementary or
secondary school; and
(c) Includes entities that meet the definition of intermediate
educational unit in section 602(23) of IDEA as in effect prior to June
4, 1997.
(Authority: 20 U.S.C. 1401(4))
Sec. 300.11 Equipment.
As used in this part, the term equipment means--
(a) Machinery, utilities, and built-in equipment and any necessary
[[Page 12423]]
enclosures or structures to house the machinery, utilities, or
equipment; and
(b) All other items necessary for the functioning of a particular
facility as a facility for the provision of educational services,
including items such as instructional equipment and necessary
furniture; printed, published and audio-visual instructional materials;
telecommunications, sensory, and other technological aids and devices;
and books, periodicals, documents, and other related materials.
(Authority: 20 U.S.C. 1401(6))
Sec. 300.12 Evaluation.
As used in this part, the term evaluation has the meaning given
that term in Sec. 300.500(b)(2).
(Authority: 20 U.S.C. 1415(a))
Sec. 300.13 Free appropriate public education.
As used in this part, the term free appropriate public education or
FAPE means special education and related services that--
(a) Are provided at public expense, under public supervision and
direction, and without charge;
(b) Meet the standards of the SEA, including the requirements of
this part;
(c) Include preschool, elementary school, or secondary school
education in the State; and
(d) Are provided in conformity with an individualized education
program (IEP) that meets the requirements of Secs. 300.340-300.350.
(Authority: 20 U.S.C. 1401(8))
Sec. 300.14 Include.
As used in this part, the term include means that the items named
are not all of the possible items that are covered, whether like or
unlike the ones named.
(Authority: 20 U.S.C. 1221e-3)
Sec. 300.15 Individualized education program.
As used in this part, the term individualized education program or
IEP has the meaning given the term in Sec. 300.340(a).
(Authority: 20 U.S.C. 1401(11))
Sec. 300.16 Individualized education program team.
As used in this part, the term individualized education program
team or IEP team means a group of individuals described in Sec. 300.344
that is responsible for developing, reviewing, or revising an IEP for a
child with a disability.
(Authority: 20 U.S.C. 1221e-3)
Sec. 300.17 Individualized family service plan.
As used in this part, the term individualized family service plan
or IFSP has the meaning given the term in 34 CFR 303.340(b).
(Authority: 20 U.S.C. 1401(12))
Sec. 300.18 Local educational agency.
(a) As used in this part, the term local educational agency means a
public board of education or other public authority legally constituted
within a State for either administrative control or direction of, or to
perform a service function for, public elementary or secondary schools
in a city, county, township, school district, or other political
subdivision of a State, or for a combination of school districts or
counties as are recognized in a State as an administrative agency for
its public elementary or secondary schools.
(b) The term includes--
(1) An educational service agency, as defined in Sec. 300.10;
(2) Any other public institution or agency having administrative
control and direction of a public elementary or secondary school,
including a public charter school that is established as an LEA under
State law; and
(3) An elementary or secondary school funded by the Bureau of
Indian Affairs, and not subject to the jurisdiction of any SEA other
than the Bureau of Indian Affairs, but only to the extent that the
inclusion makes the school eligible for programs for which specific
eligibility is not provided to the school in another provision of law
and the school does not have a student population that is smaller than
the student population of the LEA receiving assistance under this Act
with the smallest student population.
(Authority: 20 U.S.C. 1401(15))
Sec. 300.19 Native language.
(a) As used in this part, the term native language, if used with
reference to an individual of limited English proficiency, means the
following:
(1) The language normally used by that individual, or, in the case
of a child, the language normally used by the parents of the child,
except as provided in paragraph (a)(2) of this section.
(2) In all direct contact with a child (including evaluation of the
child), the language normally used by the child in the home or learning
environment.
(b) For an individual with deafness or blindness, or for an
individual with no written language, the mode of communication is that
normally used by the individual (such as sign language, braille, or
oral communication).
(Authority: 20 U.S.C. 1401(16))
Sec. 300.20 Parent.
(a) General. As used in this part, the term parent means--
(1) A natural or adoptive parent of a child;
(2) A guardian but not the State if the child is a ward of the
State;
(3) A person acting in the place of a parent (such as a grandparent
or stepparent with whom the child lives, or a person who is legally
responsible for the child's welfare); or
(4) A surrogate parent who has been appointed in accordance with
Sec. 300.515.
(b) Foster parent. Unless State law prohibits a foster parent from
acting as a parent, a State may allow a foster parent to act as a
parent under Part B of the Act if--
(1) The natural parents' authority to make educational decisions on
the child's behalf has been extinguished under State law; and
(2) The foster parent--
(i) Has an ongoing, long-term parental relationship with the child;
(ii) Is willing to make the educational decisions required of
parents under the Act; and
(iii) Has no interest that would conflict with the interests of the
child.
(Authority: 20 U.S.C. 1401(19))
Sec. 300.21 Personally identifiable
As used in this part, the term personally identifiable has the
meaning given that term in Sec. 300.500(b)(3).
(Authority: 20 U.S.C. 1415(a))
Sec. 300.22 Public agency.
As used in this part, the term public agency includes the SEA,
LEAs, ESAs, public charter schools that are not otherwise included as
LEAs or ESAs and are not a school of an LEA or ESA, and any other
political subdivisions of the State that are responsible for providing
education to children with disabilities.
(Authority: 20 U.S.C. 1412(a)(1)(A), (a)(11))
Sec. 300.23 Qualified personnel.
As used in this part, the term qualified personnel means personnel
who have met SEA-approved or SEA-recognized certification, licensing,
registration, or other comparable requirements that apply to the area
in which the individuals are providing special education or related
services.
(Authority: 20 U.S.C. 1221e-3)
Sec. 300.24 Related services.
(a) General. As used in this part, the term related services means
transportation and such developmental, corrective, and other supportive
services as are required to assist a child with a
[[Page 12424]]
disability to benefit from special education, and includes speech-
language pathology and audiology services, psychological services,
physical and occupational therapy, recreation, including therapeutic
recreation, early identification and assessment of disabilities in
children, counseling services, including rehabilitation counseling,
orientation and mobility services, and medical services for diagnostic
or evaluation purposes. The term also includes school health services,
social work services in schools, and parent counseling and training.
(b) Individual terms defined. The terms used in this definition are
defined as follows:
(1) Audiology includes--
(i) Identification of children with hearing loss;
(ii) Determination of the range, nature, and degree of hearing
loss, including referral for medical or other professional attention
for the habilitation of hearing;
(iii) Provision of habilitative activities, such as language
habilitation, auditory training, speech reading (lip-reading), hearing
evaluation, and speech conservation;
(iv) Creation and administration of programs for prevention of
hearing loss;
(v) Counseling and guidance of children, parents, and teachers
regarding hearing loss; and
(vi) Determination of children's needs for group and individual
amplification, selecting and fitting an appropriate aid, and evaluating
the effectiveness of amplification.
(2) Counseling services means services provided by qualified social
workers, psychologists, guidance counselors, or other qualified
personnel.
(3) Early identification and assessment of disabilities in children
means the implementation of a formal plan for identifying a disability
as early as possible in a child's life.
(4) Medical services means services provided by a licensed
physician to determine a child's medically related disability that
results in the child's need for special education and related services.
(5) Occupational therapy--
(i) Means services provided by a qualified occupational therapist;
and
(ii) Includes--
(A) Improving, developing or restoring functions impaired or lost
through illness, injury, or deprivation;
(B) Improving ability to perform tasks for independent functioning
if functions are impaired or lost; and
(C) Preventing, through early intervention, initial or further
impairment or loss of function.
(6) Orientation and mobility services--
(i) Means services provided to blind or visually impaired students
by qualified personnel to enable those students to attain systematic
orientation to and safe movement within their environments in school,
home, and community; and
(ii) Includes teaching students the following, as appropriate:
(A) Spatial and environmental concepts and use of information
received by the senses (such as sound, temperature and vibrations) to
establish, maintain, or regain orientation and line of travel (e.g.,
using sound at a traffic light to cross the street);
(B) To use the long cane to supplement visual travel skills or as a
tool for safely negotiating the environment for students with no
available travel vision;
(C) To understand and use remaining vision and distance low vision
aids; and
(D) Other concepts, techniques, and tools.
(7) Parent counseling and training means--
(i) Assisting parents in understanding the special needs of their
child;
(ii) Providing parents with information about child development;
and
(iii) Helping parents to acquire the necessary skills that will
allow them to support the implementation of their child's IEP or IFSP.
(8) Physical therapy means services provided by a qualified
physical therapist.
(9) Psychological services includes--
(i) Administering psychological and educational tests, and other
assessment procedures;
(ii) Interpreting assessment results;
(iii) Obtaining, integrating, and interpreting information about
child behavior and conditions relating to learning;
(iv) Consulting with other staff members in planning school
programs to meet the special needs of children as indicated by
psychological tests, interviews, and behavioral evaluations;
(v) Planning and managing a program of psychological services,
including psychological counseling for children and parents; and
(vi) Assisting in developing positive behavioral intervention
strategies.
(10) Recreation includes--
(i) Assessment of leisure function;
(ii) Therapeutic recreation services;
(iii) Recreation programs in schools and community agencies; and
(iv) Leisure education.
(11) Rehabilitation counseling services means services provided by
qualified personnel in individual or group sessions that focus
specifically on career development, employment preparation, achieving
independence, and integration in the workplace and community of a
student with a disability. The term also includes vocational
rehabilitation services provided to a student with disabilities by
vocational rehabilitation programs funded under the Rehabilitation Act
of 1973, as amended.
(12) School health services means services provided by a qualified
school nurse or other qualified person.
(13) Social work services in schools includes--
(i) Preparing a social or developmental history on a child with a
disability;
(ii) Group and individual counseling with the child and family;
(iii) Working in partnership with parents and others on those
problems in a child's living situation (home, school, and community)
that affect the child's adjustment in school;
(iv) Mobilizing school and community resources to enable the child
to learn as effectively as possible in his or her educational program;
and
(v) Assisting in developing positive behavioral intervention
strategies.
(14) Speech-language pathology services includes--
(i) Identification of children with speech or language impairments;
(ii) Diagnosis and appraisal of specific speech or language
impairments;
(iii) Referral for medical or other professional attention
necessary for the habilitation of speech or language impairments;
(iv) Provision of speech and language services for the habilitation
or prevention of communicative impairments; and
(v) Counseling and guidance of parents, children, and teachers
regarding speech and language impairments.
(15) Transportation includes--
(i) Travel to and from school and between schools;
(ii) Travel in and around school buildings; and
(iii) Specialized equipment (such as special or adapted buses,
lifts, and ramps), if required to provide special transportation for a
child with a disability.
(Authority: 20 U.S.C. 1401(22))
Sec. 300.25 Secondary school.
As used in this part, the term secondary school means a nonprofit
institutional day or residential school that provides secondary
education, as determined under State law, except that
[[Page 12425]]
it does not include any education beyond grade 12.
(Authority: 20 U.S.C. 1401(23))
Sec. 300.26 Special education.
(a) General. (1) As used in this part, the term special education
means specially designed instruction, at no cost to the parents, to
meet the unique needs of a child with a disability, including--
(i) Instruction conducted in the classroom, in the home, in
hospitals and institutions, and in other settings; and
(ii) Instruction in physical education.
(2) The term includes each of the following, if it meets the
requirements of paragraph (a)(1) of this section:
(i) Speech-language pathology services, or any other related
service, if the service is considered special education rather than a
related service under State standards;
(ii) Travel training; and
(iii) Vocational education.
(b) Individual terms defined. The terms in this definition are
defined as follows:
(1) At no cost means that all specially-designed instruction is
provided without charge, but does not preclude incidental fees that are
normally charged to nondisabled students or their parents as a part of
the regular education program.
(2) Physical education--
(i) Means the development of--
(A) Physical and motor fitness;
(B) Fundamental motor skills and patterns; and
(C) Skills in aquatics, dance, and individual and group games and
sports (including intramural and lifetime sports); and
(ii) Includes special physical education, adapted physical
education, movement education, and motor development.
(3) Specially-designed instruction means adapting, as appropriate
to the needs of an eligible child under this part, the content,
methodology, or delivery of instruction--
(i) To address the unique needs of the child that result from the
child's disability; and
(ii) To ensure access of the child to the general curriculum, so
that he or she can meet the educational standards within the
jurisdiction of the public agency that apply to all children.
(4) Travel training means providing instruction, as appropriate, to
children with significant cognitive disabilities, and any other
children with disabilities who require this instruction, to enable them
to--
(i) Develop an awareness of the environment in which they live; and
(ii) Learn the skills necessary to move effectively and safely from
place to place within that environment (e.g., in school, in the home,
at work, and in the community).
(5) Vocational education means organized educational programs that
are directly related to the preparation of individuals for paid or
unpaid employment, or for additional preparation for a career requiring
other than a baccalaureate or advanced degree.
(Authority: 20 U.S.C. 1401(25))
Sec. 300.27 State.
As used in this part, the term State means each of the 50 States,
the District of Columbia, the Commonwealth of Puerto Rico, and each of
the outlying areas.
(Authority: 20 U.S.C. 1401(27))
Sec. 300.28 Supplementary aids and services.
As used in this part, the term supplementary aids and services
means, aids, services, and other supports that are provided in regular
education classes or other education-related settings to enable
children with disabilities to be educated with nondisabled children to
the maximum extent appropriate in accordance with Secs. 300.550-
300.556.
(Authority: 20 U.S.C. 1401(29))
Sec. 300.29 Transition services.
(a) As used in this part, transition services means a coordinated
set of activities for a student with a disability that--
(1) Is designed within an outcome-oriented process, that promotes
movement from school to post-school activities, including postsecondary
education, vocational training, integrated employment (including
supported employment), continuing and adult education, adult services,
independent living, or community participation;
(2) Is based on the individual student's needs, taking into account
the student's preferences and interests; and
(3) Includes--
(i) Instruction;
(ii) Related services;
(iii) Community experiences;
(iv) The development of employment and other post-school adult
living objectives; and
(v) If appropriate, acquisition of daily living skills and
functional vocational evaluation.
(b) Transition services for students with disabilities may be
special education, if provided as specially designed instruction, or
related services, if required to assist a student with a disability to
benefit from special education.
(Authority: 20 U.S.C. 1401(30))
Sec. 300.30 Definitions in EDGAR.
The following terms used in this part are defined in 34 CFR 77.1:
Application
Award
Contract
Department
EDGAR
Elementary school
Fiscal year
Grant
Nonprofit
Project
Secretary
Subgrant
State educational agency
(Authority: 20 U.S.C. 1221e-3(a)(1))
Subpart B--State and Local Eligibility
State Eligibility--General
Sec. 300.110 Condition of assistance.
(a) A State is eligible for assistance under Part B of the Act for
a fiscal year if the State demonstrates to the satisfaction of the
Secretary that the State has in effect policies and procedures to
ensure that it meets the conditions in Secs. 300.121-300.156.
(b) To meet the requirement of paragraph (a) of this section, the
State must have on file with the Secretary--
(1) The information specified in Secs. 300.121-300.156 that the
State uses to implement the requirements of this part; and
(2) Copies of all applicable State statutes, regulations, and other
State documents that show the basis of that information.
(Authority: 20 U.S.C. 1412(a))
Sec. 300.111 Exception for prior State policies and procedures on file
with the Secretary.
If a State has on file with the Secretary policies and procedures
approved by the Secretary that demonstrate that the State meets any
requirement of Sec. 300.110, including any policies and procedures
filed under Part B of the Act as in effect before June 4, 1997, the
Secretary considers the State to have met the requirement for purposes
of receiving a grant under Part B of the Act.
(Authority: 20 U.S.C. 1412(c)(1))
Sec. 300.112 Amendments to State policies and procedures.
(a) Modifications made by a State. (1) Subject to paragraph (b) of
this section, policies and procedures submitted by a State in
accordance with this subpart
[[Page 12426]]
remain in effect until the State submits to the Secretary the
modifications that the State decides are necessary.
(2) The provisions of this subpart apply to a modification to a
State's policies and procedures in the same manner and to the same
extent that they apply to the State's original policies and procedures.
(b) Modifications required by the Secretary. The Secretary may
require a State to modify its policies and procedures, but only to the
extent necessary to ensure the State's compliance with this part, if--
(1) After June 4, 1997, the provisions of the Act or the
regulations in this part are amended;
(2) There is a new interpretation of this Act or regulations by a
Federal court or a State's highest court; or
(3) There is an official finding of noncompliance with Federal law
or regulations.
(Authority: 20 U.S.C. 1412(c)(2) and (3))
Sec. 300.113 Approval by the Secretary.
(a) General. If the Secretary determines that a State is eligible
to receive a grant under Part B of the Act, the Secretary notifies the
State of that determination.
(b) Notice and hearing before determining a State is not eligible.
The Secretary does not make a final determination that a State is not
eligible to receive a grant under Part B of the Act until after
providing the State reasonable notice and an opportunity for a hearing
in accordance with the procedures in Secs. 300.581-300.586.
(Authority: 20 U.S.C. 1412(d))
Secs. 300.114--300.120 [Reserved]
State Eligibility--Specific Conditions
Sec. 300.121 Free appropriate public education (FAPE).
(a) General. Each State must have on file with the Secretary
information that shows that, subject to Sec. 300.122, the State has in
effect a policy that ensures that all children with disabilities aged 3
through 21 residing in the State have the right to FAPE, including
children with disabilities who have been suspended or expelled from
school.
(b) Required information. The information described in paragraph
(a) of this section must--
(1) Include a copy of each State statute, court order, State
Attorney General opinion, and other State documents that show the
source of the State's policy relating to FAPE; and
(2) Show that the policy--
(i)(A) Applies to all public agencies in the State; and
(B) Is consistent with the requirements of Secs. 300.300-300.313;
and
(ii) Applies to all children with disabilities, including children
who have been suspended or expelled from school.
(c) FAPE for children beginning at age 3. (1) Each State shall
ensure that--
(i) The obligation to make FAPE available to each eligible child
residing in the State begins no later than the child's third birthday;
and
(ii) An IEP or an IFSP is in effect for the child by that date, in
accordance with Sec. 300.342(c).
(2) If a child's third birthday occurs during the summer, the
child's IEP team shall determine the date when services under the IEP
or IFSP will begin.
(d) FAPE for children suspended or expelled from school. (1) A
public agency need not provide services during periods of removal under
Sec. 300.520(a)(1) to a child with a disability who has been removed
from his or her current placement for 10 school days or less in that
school year, if services are not provided to a child without
disabilities who has been similarly removed.
(2) In the case of a child with a disability who has been removed
from his or her current placement for more than 10 school days in that
school year, the public agency, for the remainder of the removals,
must--
(i) Provide services to the extent necessary to enable the child to
appropriately progress in the general curriculum and appropriately
advance toward achieving the goals set out in the child's IEP, if the
removal is--
(A) Under the school personnel's authority to remove for not more
than 10 consecutive school days as long as that removal does not
constitute a change of placement under Sec. 300.519(b)
(Sec. 300.520((a)(1)); or
(B) For behavior that is not a manifestation of the child's
disability, consistent with Sec. 300.524; and
(ii) Provide services consistent with Sec. 300.522, regarding
determination of the appropriate interim alternative educational
setting, if the removal is--
(A) For drug or weapons offenses under Sec. 300.520(a)(2); or
(B) Based on a hearing officer determination that maintaining the
current placement of the child is substantially likely to result in
injury to the child or to others if he or she remains in the current
placement, consistent with Sec. 300.521.
(3)(i) School personnel, in consultation with the child's special
education teacher, determine the extent to which services are necessary
to enable the child to appropriately progress in the general curriculum
and appropriately advance toward achieving the goals set out in the
child's IEP if the child is removed under the authority of school
personnel to remove for not more than 10 consecutive school days as
long as that removal does not constitute a change of placement under
Sec. 300.519 (Sec. 300.520(a)(1)).
(ii) The child's IEP team determines the extent to which services
are necessary to enable the child to appropriately progress in the
general curriculum and appropriately advance toward achieving the goals
set out in the child's IEP if the child is removed because of behavior
that has been determined not to be a manifestation of the child's
disability, consistent with Sec. 300.524.
(e) Children advancing from grade to grade. (1) Each State shall
ensure that FAPE is available to any individual child with a disability
who needs special education and related services, even though the child
is advancing from grade to grade.
(2) The determination that a child described in paragraph (a)(1) of
this section is eligible under this part, must be made on an individual
basis by the group responsible within the child's LEA for making those
determinations.
(Authority: 20 U.S.C. 1412(a)(1))
Sec. 300.122 Exception to FAPE for certain ages.
(a) General. The obligation to make FAPE available to all children
with disabilities does not apply with respect to the following:
(1) Children aged 3, 4, 5, 18, 19, 20, or 21 in a State to the
extent that its application to those children would be inconsistent
with State law or practice, or the order of any court, respecting the
provision of public education to children in one or more of those age
groups.
(2)(i) Students aged 18 through 21 to the extent that State law
does not require that special education and related services under Part
B of the Act be provided to students with disabilities who, in the last
educational placement prior to their incarceration in an adult
correctional facility--
(A) Were not actually identified as being a child with a disability
under Sec. 300.7; and
(B) Did not have an IEP under Part B of the Act.
(ii) The exception in paragraph (a)(2)(i) of this section does not
apply to students with disabilities, aged 18 through 21, who--
(A) Had been identified as a child with disability and had received
services in accordance with an IEP, but
[[Page 12427]]
who left school prior to their incarceration; or
(B) Did not have an IEP in their last educational setting, but who
had actually been identified as a ``child with a disability'' under
Sec. 300.7.
(3)(i) Students with disabilities who have graduated from high
school with a regular high school diploma.
(ii) The exception in paragraph (a)(3)(i) of this section does not
apply to students who have graduated but have not been awarded a
regular high school diploma.
(iii) Graduation from high school with a regular diploma
constitutes a change in placement, requiring written prior notice in
accordance with Sec. 300.503.
(b) Documents relating to exceptions. The State must have on file
with the Secretary--
(1)(i) Information that describes in detail the extent to which the
exception in paragraph (a)(1) of this section applies to the State; and
(ii) A copy of each State law, court order, and other documents
that provide a basis for the exception; and
(2) With respect to paragraph (a)(2) of this section, a copy of the
State law that excludes from services under Part B of the Act certain
students who are incarcerated in an adult correctional facility.
(Authority: 20 U.S.C. 1412(a)(1)(B))
Sec. 300.123 Full educational opportunity goal (FEOG).
The State must have on file with the Secretary detailed policies
and procedures through which the State has established a goal of
providing full educational opportunity to all children with
disabilities aged birth through 21.
(Authority: 20 U.S.C. 1412(a)(2))
Sec. 300.124 FEOG--timetable.
The State must have on file with the Secretary a detailed timetable
for accomplishing the goal of providing full educational opportunity
for all children with disabilities.
(Authority: 20 U.S.C. 1412(a)(2))
Sec. 300.125 Child find.
(a) General requirement. (1) The State must have in effect policies
and procedures to ensure that--
(i) All children with disabilities residing in the State, including
children with disabilities attending private schools, regardless of the
severity of their disability, and who are in need of special education
and related services, are identified, located, and evaluated; and
(ii) A practical method is developed and implemented to determine
which children are currently receiving needed special education and
related services.
(2) The requirements of paragraph (a)(1) of this section apply to--
(i) Highly mobile children with disabilities (such as migrant and
homeless children); and
(ii) Children who are suspected of being a child with a disability
under Sec. 300.7 and in need of special education, even though they are
advancing from grade to grade.
(b) Documents relating to child find. The State must have on file
with the Secretary the policies and procedures described in paragraph
(a) of this section, including--
(1) The name of the State agency (if other than the SEA)
responsible for coordinating the planning and implementation of the
policies and procedures under paragraph (a) of this section;
(2) The name of each agency that participates in the planning and
implementation of the child find activities and a description of the
nature and extent of its participation;
(3) A description of how the policies and procedures under
paragraph (a) of this section will be monitored to ensure that the SEA
obtains--
(i) The number of children with disabilities within each disability
category that have been identified, located, and evaluated; and
(ii) Information adequate to evaluate the effectiveness of those
policies and procedures; and
(4) A description of the method the State uses to determine which
children are currently receiving special education and related
services.
(c) Child find for children from birth through age 2 when the SEA
and lead agency for the Part C program are different. (1) In States
where the SEA and the State's lead agency for the Part C program are
different and the Part C lead agency will be participating in the child
find activities described in paragraph (a) of this section, a
description of the nature and extent of the Part C lead agency's
participation must be included under paragraph (b)(2) of this section.
(2) With the SEA's agreement, the Part C lead agency's
participation may include the actual implementation of child find
activities for infants and toddlers with disabilities.
(3) The use of an interagency agreement or other mechanism for
providing for the Part C lead agency's participation does not alter or
diminish the responsibility of the SEA to ensure compliance with the
requirements of this section.
(d) Construction. Nothing in the Act requires that children be
classified by their disability so long as each child who has a
disability listed in Sec. 300.7 and who, by reason of that disability,
needs special education and related services is regarded as a child
with a disability under Part B of the Act.
(e) Confidentiality of child find data. The collection and use of
data to meet the requirements of this section are subject to the
confidentiality requirements of Secs. 300.560-300.577.
(Authority: 20 U.S.C. 1412 (a)(3)(A) and (B))
Sec. 300.126 Procedures for evaluation and determination of
eligibility.
The State must have on file with the Secretary policies and
procedures that ensure that the requirements of Secs. 300.530-300.536
are met.
(Authority: 20 U.S.C. 1412(a)(6)(B), (7))
Sec. 300.127 Confidentiality of personally identifiable information.
(a) The State must have on file in detail the policies and
procedures that the State has undertaken to ensure protection of the
confidentiality of any personally identifiable information, collected,
used, or maintained under Part B of the Act.
(b) The Secretary uses the criteria in Secs. 300.560-300.576 to
evaluate the policies and procedures of the State under paragraph (a)
of this section.
(Authority: 20 U.S.C. 1412(a)(8))
Sec. 300.128 Individualized education programs.
(a) General. The State must have on file with the Secretary
information that shows that an IEP, or an IFSP that meets the
requirements of section 636(d) of the Act, is developed, reviewed, and
revised for each child with a disability in accordance with
Secs. 300.340-300.350.
(b) Required information. The information described in paragraph
(a) of this section must include--
(1) A copy of each State statute, policy, and standard that
regulates the manner in which IEPs are developed, implemented,
reviewed, and revised; and
(2) The procedures that the SEA follows in monitoring and
evaluating those IEPs or IFSPs.
(Authority: 20 U.S.C. 1412(a)(4))
Sec. 300.129 Procedural safeguards.
(a) The State must have on file with the Secretary procedural
safeguards that ensure that the requirements of Secs. 300.500-300.529
are met.
(b) Children with disabilities and their parents must be afforded
the procedural safeguards identified in paragraph (a) of this section.
[[Page 12428]]
(Authority: 20 U.S.C. 1412(a)(6)(A))
Sec. 300.130 Least restrictive environment.
(a) General. The State must have on file with the Secretary
procedures that ensure that the requirements of Secs. 300.550-300.556
are met, including the provision in Sec. 300.551 requiring a continuum
of alternative placements to meet the unique needs of each child with a
disability.
(b) Additional requirement. (1) If the State uses a funding
mechanism by which the State distributes State funds on the basis of
the type of setting where a child is served, the funding mechanism may
not result in placements that violate the requirements of paragraph (a)
of this section.
(2) If the State does not have policies and procedures to ensure
compliance with paragraph (b)(1) of this section, the State must
provide the Secretary an assurance that the State will revise the
funding mechanism as soon as feasible to ensure that the mechanism does
not result in placements that violate that paragraph.
(Authority: 20 U.S.C. 1412(a)(5))
Sec. 300.131 [Reserved]
Sec. 300.132 Transition of children from Part C to preschool programs.
The State must have on file with the Secretary policies and
procedures to ensure that--
(a) Children participating in early-intervention programs assisted
under Part C of the Act, and who will participate in preschool programs
assisted under Part B of the Act, experience a smooth and effective
transition to those preschool programs in a manner consistent with
section 637(a)(8) of the Act;
(b) By the third birthday of a child described in paragraph (a) of
this section, an IEP or, if consistent with Sec. 300.342(c) and section
636(d) of the Act, an IFSP, has been developed and is being implemented
for the child consistent with Sec. 300.121(c); and
(c) Each LEA will participate in transition planning conferences
arranged by the designated lead agency under section 637(a)(8) of the
Act.
(Authority: 20 U.S.C. 1412(a)(9))
Sec. 300.133 Children in private schools.
The State must have on file with the Secretary policies and
procedures that ensure that the requirements of Secs. 300.400-300.403
and Secs. 300.450-300.462 are met.
(Authority: 20 U.S.C. 1413(a)(4))
Sec. 300.134 [Reserved]
Sec. 300.135 Comprehensive system of personnel development.
(a) General. The State must have in effect, consistent with the
purposes of this part and with section 635(a)(8) of the Act, a
comprehensive system of personnel development that--
(1) Is designed to ensure an adequate supply of qualified special
education, regular education, and related services personnel; and
(2) Meets the requirements for a State improvement plan relating to
personnel development in section 653(b)(2)(B) and (c)(3)(D) of the Act.
(b) Information. The State must have on file with the Secretary
information that shows that the requirements of paragraph (a) of this
section are met.
(Authority: 20 U.S.C. 1412(a)(14))
Sec. 300.136 Personnel standards.
(a) Definitions. As used in this part--
(1) Appropriate professional requirements in the State means entry
level requirements that--
(i) Are based on the highest requirements in the State applicable
to the profession or discipline in which a person is providing special
education or related services; and
(ii) Establish suitable qualifications for personnel providing
special education and related services under Part B of the Act to
children with disabilities who are served by State, local, and private
agencies (see Sec. 300.2);
(2) Highest requirements in the State applicable to a specific
profession or discipline means the highest entry-level academic degree
needed for any State-approved or -recognized certification, licensing,
registration, or other comparable requirements that apply to that
profession or discipline;
(3) Profession or discipline means a specific occupational category
that--
(i) Provides special education and related services to children
with disabilities under Part B of the Act;
(ii) Has been established or designated by the State;
(iii) Has a required scope of responsibility and degree of
supervision; and
(iv) Is not limited to traditional occupational categories; and
(4) State-approved or -recognized certification, licensing,
registration, or other comparable requirements means the requirements
that a State legislature either has enacted or has authorized a State
agency to promulgate through rules to establish the entry-level
standards for employment in a specific profession or discipline in that
State.
(b) Policies and procedures. (1)(i) The State must have on file
with the Secretary policies and procedures relating to the
establishment and maintenance of standards to ensure that personnel
necessary to carry out the purposes of this part are appropriately and
adequately prepared and trained.
(ii) The policies and procedures required in paragraph (b)(1)(i) of
this section must provide for the establishment and maintenance of
standards that are consistent with any State-approved or -recognized
certification, licensing, registration, or other comparable
requirements that apply to the profession or discipline in which a
person is providing special education or related services.
(2) Each State may--
(i) Determine the specific occupational categories required to
provide special education and related services within the State; and
(ii) Revise or expand those categories as needed.
(3) 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.
(4) A State with only one entry-level academic degree for
employment of personnel in a specific profession or discipline may
modify that standard as necessary to ensure the provision of FAPE to
all children with disabilities in the State without violating the
requirements of this section.
(c) Steps for retraining or hiring personnel. To the extent that a
State's standards for a profession or discipline, including standards
for temporary or emergency certification, are not based on the highest
requirements in the State applicable to a specific profession or
discipline, the State must provide the steps the State is taking and
the procedures for notifying public agencies and personnel of those
steps and the timelines it has established for the retraining or hiring
of personnel to meet appropriate professional requirements in the
State.
(d) Status of personnel standards in the State. (1) In meeting the
requirements in paragraphs (b) and (c) of this section, a determination
must be made about the status of personnel standards in the State. That
determination must be based on current information that accurately
describes, for each profession or discipline in which personnel are
providing special education or related services, whether the applicable
standards are consistent with the highest requirements in the State for
that profession or discipline.
(2) The information required in paragraph (d)(1) of this section
must be
[[Page 12429]]
on file in the SEA and available to the public.
(e) Applicability of State statutes and agency rules. In
identifying the highest requirements in the State for purposes of this
section, the requirements of all State statutes and the rules of all
State agencies applicable to serving children with disabilities must be
considered.
(f) Use of paraprofessionals and assistants. A State may allow
paraprofessionals and assistants who are appropriately trained and
supervised, in accordance with State law, regulations, or written
policy, in meeting the requirements of this part to be used to assist
in the provision of special education and related services to children
with disabilities under Part B of the Act.
(g) Policy to address shortage of personnel. (1) In implementing
this section, a State may adopt a policy that includes a requirement
that LEAs in the State make an ongoing good faith effort to recruit and
hire appropriately and adequately trained personnel to provide special
education and related services to children with disabilities,
including, in a geographic area of the State where there is a shortage
of personnel that meet these qualifications, the most qualified
individuals available who are making satisfactory progress toward
completing applicable course work necessary to meet the standards
described in paragraph (b)(2) of this section, consistent with State
law and the steps described in paragraph (c) of this section, within
three years.
(2) If a State has reached its established date under paragraph (c)
of this section, the State may still exercise the option under
paragraph (g)(1) of this section for training or hiring all personnel
in a specific profession or discipline to meet appropriate professional
requirements in the State.
(3)(i) Each State must have a mechanism for serving children with
disabilities if instructional needs exceed available personnel who meet
appropriate professional requirements in the State for a specific
profession or discipline.
(ii) A State that continues to experience shortages of qualified
personnel must address those shortages in its comprehensive system of
personnel development under Sec. 300.135.
(Authority: 20 U.S.C. 1412(a)(15))
Sec. 300.137 Performance goals and indicators.
The State must have on file with the Secretary information to
demonstrate that the State--
(a) Has established goals for the performance of children with
disabilities in the State that--
(1) Will promote the purposes of this part, as stated in
Sec. 300.1; and
(2) Are consistent, to the maximum extent appropriate, with other
goals and standards for all children established by the State;
(b) Has established performance indicators that the State will use
to assess progress toward achieving those goals that, at a minimum,
address the performance of children with disabilities on assessments,
drop-out rates, and graduation rates;
(c) Every two years, will report to the Secretary and the public on
the progress of the State, and of children with disabilities in the
State, toward meeting the goals established under paragraph (a) of this
section; and
(d) Based on its assessment of that progress, will revise its State
improvement plan under subpart 1 of Part D of the Act as may be needed
to improve its performance, if the State receives assistance under that
subpart.
(Authority: 20 U.S.C. 1412(a)(16))
Sec. 300.138 Participation in assessments.
The State must have on file with the Secretary information to
demonstrate that--
(a) Children with disabilities are included in general State and
district-wide assessment programs, with appropriate accommodations and
modifications in administration, if necessary;
(b) As appropriate, the State or LEA--
(1) Develops guidelines for the participation of children with
disabilities in alternate assessments for those children who cannot
participate in State and district-wide assessment programs;
(2) Develops alternate assessments in accordance with paragraph
(b)(1) of this section; and
(3) Beginning not later than, July 1, 2000, conducts the alternate
assessments described in paragraph (b)(2) of this section.
(Authority: 20 U.S.C. 1412(a)(17)(A))
Sec. 300.139 Reports relating to assessments.
(a) General. In implementing the requirements of Sec. 300.138, the
SEA shall make available to the public, and report to the public with
the same frequency and in the same detail as it reports on the
assessment of nondisabled children, the following information:
(1) The number of children with disabilities participating--
(i) In regular assessments; and
(ii) In alternate assessments.
(2) The performance results of the children described in paragraph
(a)(1) of this section if doing so would be statistically sound and
would not result in the disclosure of performance results identifiable
to individual children--
(i) On regular assessments (beginning not later than July 1, 1998);
and
(ii) On alternate assessments (not later than July 1, 2000).
(b) Combined reports. Reports to the public under paragraph (a) of
this section must include--
(1) Aggregated data that include the performance of children with
disabilities together with all other children; and
(2) Disaggregated data on the performance of children with
disabilities.
(c) Timeline for disaggregation of data. Data relating to the
performance of children described under paragraph (a)(2) of this
section must be disaggregated--
(1) For assessments conducted after July 1, 1998; and
(2) For assessments conducted before July 1, 1998, if the State is
required to disaggregate the data prior to July 1, 1998.
(Authority: 20 U.S.C. 612(a)(17)(B))
Sec. 300.140 [Reserved]
Sec. 300.141 SEA responsibility for general supervision.
(a) The State must have on file with the Secretary information that
shows that the requirements of Sec. 300.600 are met.
(b) The information described under paragraph (a) of this section
must include a copy of each State statute, State regulation, signed
agreement between respective agency officials, and any other documents
that show compliance with that paragraph.
(Authority: 20 U.S.C. 1412(a)(11))
Sec. 300.142 Methods of ensuring services.
(a) Establishing responsibility for services. The Chief Executive
Officer or designee of that officer shall ensure that an interagency
agreement or other mechanism for interagency coordination is in effect
between each noneducational public agency described in paragraph (b) of
this section and the SEA, in order to ensure that all services
described in paragraph (b)(1) of this section that are needed to ensure
FAPE are provided, including the provision of these services during the
pendency of any dispute under paragraph (a)(3) of this section. The
agreement or mechanism must include the following:
(1) Agency financial responsibility. An identification of, or a
method for
[[Page 12430]]
defining, the financial responsibility of each agency for providing
services described in paragraph (b)(1) of this section to ensure FAPE
to children with disabilities. The financial responsibility of each
noneducational public agency described in paragraph (b) of this
section, including the State Medicaid agency and other public insurers
of children with disabilities, must precede the financial
responsibility of the LEA (or the State agency responsible for
developing the child's IEP).
(2) Conditions and terms of reimbursement. The conditions, terms,
and procedures under which an LEA must be reimbursed by other agencies.
(3) Interagency disputes. Procedures for resolving interagency
disputes (including procedures under which LEAs may initiate
proceedings) under the agreement or other mechanism to secure
reimbursement from other agencies or otherwise implement the provisions
of the agreement or mechanism.
(4) Coordination of services procedures. Policies and procedures
for agencies to determine and identify the interagency coordination
responsibilities of each agency to promote the coordination and timely
and appropriate delivery of services described in paragraph (b)(1) of
this section.
(b) Obligation of noneducational public agencies. (1) General. (i)
If any public agency other than an educational agency is otherwise
obligated under Federal or State law, or assigned responsibility under
State policy or pursuant to paragraph (a) of this section, to provide
or pay for any services that are also considered special education or
related services (such as, but not limited to, services described in
Sec. 300.5 relating to assistive technology devices, Sec. 300.6
relating to assistive technology services, Sec. 300.24 relating to
related services, Sec. 300.28 relating to supplementary aids and
services, and Sec. 300.29 relating to transition services) that are
necessary for ensuring FAPE to children with disabilities within the
State, the public agency shall fulfill that obligation or
responsibility, either directly or through contract or other
arrangement.
(ii) A noneducational public agency described in paragraph
(b)(1)(i) of this section may not disqualify an eligible service for
Medicaid reimbursement because that service is provided in a school
context.
(2) Reimbursement for services by noneducational public agency. If
a public agency other than an educational agency fails to provide or
pay for the special education and related services described in
paragraph (b)(1) of this section, the LEA (or State agency responsible
for developing the child's IEP) shall provide or pay for these services
to the child in a timely manner. The LEA or State agency may then claim
reimbursement for the services from the noneducational public agency
that failed to provide or pay for these services and that agency shall
reimburse the LEA or State agency in accordance with the terms of the
interagency agreement or other mechanism described in paragraph (a)(1)
of this section, and the agreement described in paragraph (a)(2) of
this section.
(c) Special rule. The requirements of paragraph (a) of this section
may be met through--
(1) State statute or regulation;
(2) Signed agreements between respective agency officials that
clearly identify the responsibilities of each agency relating to the
provision of services; or
(3) Other appropriate written methods as determined by the Chief
Executive Officer of the State or designee of that officer.
(d) Information. The State must have on file with the Secretary
information to demonstrate that the requirements of paragraphs (a)
through (c) of this section are met.
(e) Children with disabilities who are covered by public insurance.
(1) A public agency may use the Medicaid or other public insurance
benefits programs in which a child participates to provide or pay for
services required under this part, as permitted under the public
insurance program, except as provided in paragraph (e)(2) of this
section.
(2) With regard to services required to provide FAPE to an eligible
child under this part, the public agency--
(i) May not require parents to sign up for or enroll in public
insurance programs in order for their child to receive FAPE under Part
B of the Act;
(ii) May not require parents to incur an out-of-pocket expense such
as the payment of a deductible or co-pay amount incurred in filing a
claim for services provided pursuant to this part, but pursuant to
paragraph (g)(2) of this section, may pay the cost that the parent
otherwise would be required to pay; and
(iii) May not use a child's benefits under a public insurance
program if that use would--
(A) Decrease available lifetime coverage or any other insured
benefit;
(B) Result in the family paying for services that would otherwise
be covered by the public insurance program and that are required for
the child outside of the time the child is in school;
(C) Increase premiums or lead to the discontinuation of insurance;
or
(D) Risk loss of eligibility for home and community-based waivers,
based on aggregate health-related expenditures.
(f) Children with disabilities who are covered by private
insurance. (1) With regard to services required to provide FAPE to an
eligible child under this part, a public agency may access a parent's
private insurance proceeds only if the parent provides informed consent
consistent with Sec. 300.500(b)(1).
(2) Each time the public agency proposes to access the parent's
private insurance proceeds, it must--
(i) Obtain parent consent in accordance with paragraph (f)(1) of
this section; and
(ii) Inform the parents that their refusal to permit the 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.
(g) Use of Part B funds. (1) If a public agency is unable to obtain
parental consent to use the parent's private insurance, or public
insurance when the parent would incur a cost for a specified service
required under this part, to ensure FAPE the public agency may use its
Part B funds to pay for the service.
(2) To avoid financial cost to parents who otherwise would consent
to use private insurance, or public insurance if the parent would incur
a cost, the public agency may use its Part B funds to pay the cost the
parents otherwise would have to pay to use the parent's insurance
(e.g., the deductible or co-pay amounts).
(h) Proceeds from public or private insurance. (1) Proceeds from
public or private insurance will not be treated as program income for
purposes of 34 CFR 80.25.
(2) If a public agency spends reimbursements from Federal funds
(e.g., Medicaid) for services under this part, those funds will not be
considered ``State or local'' funds for purposes of the maintenance of
effort provisions in Secs. 300.154 and 300.231.
(i) Construction. 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 by Federal statute,
regulations or policy under title XIX, or title XXI of the Social
Security Act, or any other public insurance program.
(Authority: 20 U.S.C. 1412(a)(12)(A), (B), and (C); 1401(8))
[[Page 12431]]
Sec. 300.143 SEA implementation of procedural safeguards.
The State must have on file with the Secretary the procedures that
the SEA (and any agency assigned responsibility pursuant to
Sec. 300.600(d)) follows to inform each public agency of its
responsibility for ensuring effective implementation of procedural
safeguards for the children with disabilities served by that public
agency.
(Authority: 20 U.S.C. 1412(a)(11); 1415(a))
Sec. 300.144 Hearings relating to LEA eligibility.
The State must have on file with the Secretary procedures to ensure
that the SEA does not make any final determination that an LEA is not
eligible for assistance under Part B of the Act without first giving
the LEA reasonable notice and an opportunity for a hearing under 34 CFR
76.401(d).
(Authority: 20 U.S.C. 1412(a)(13))
Sec. 300.145 Recovery of funds for misclassified children.
The State must have on file with the Secretary policies and
procedures that ensure that the State seeks to recover any funds
provided under Part B of the Act for services to a child who is
determined to be erroneously classified as eligible to be counted under
section 611(a) or (d) of the Act.
(Authority: 20 U.S.C. 1221e-3(a)(1))
Sec. 300.146 Suspension and expulsion rates.
The State must have on file with the Secretary information to
demonstrate that the following requirements are met:
(a) General. The SEA examines data to determine if significant
discrepancies are occurring in the rate of long-term suspensions and
expulsions of children with disabilities--
(1) Among LEAs in the State; or
(2) Compared to the rates for nondisabled children within the
agencies.
(b) Review and revision of policies. If the discrepancies described
in paragraph (a) of this section are occurring, the SEA reviews and, if
appropriate, revises (or requires the affected State agency or LEA to
revise) its policies, procedures, and practices relating to the
development and implementation of IEPs, the use of behavioral
interventions, and procedural safeguards, to ensure that these
policies, procedures, and practices comply with the Act.
(Authority: 20 U.S.C. 612(a)(22))
Sec. 300.147 Additional information if SEA provides direct services.
(a) If the SEA provides FAPE to children with disabilities, or
provides direct services to these children, the agency--
(1) Shall comply with any additional requirements of Secs. 300.220-
300.230(a) and 300.234-300.250 as if the agency were an LEA; and
(2) May use amounts that are otherwise available to the agency
under Part B of the Act to serve those children without regard to
Sec. 300.184 (relating to excess costs).
(b) The SEA must have on file with the Secretary information to
demonstrate that it meets the requirements of paragraph (a)(1) of this
section.
(Authority: 20 U.S.C. 1412(b))
Sec. 300.148 Public participation.
(a) General; exception. (1) Subject to paragraph (a)(2) of this
section, each State must ensure that, prior to the adoption of any
policies and procedures needed to comply with this part, there are
public hearings, adequate notice of the hearings, and an opportunity
for comment available to the general public, including individuals with
disabilities and parents of children with disabilities consistent with
Secs. 300.280-300.284.
(2) A State will be considered to have met paragraph (a)(1) of this
section with regard to a policy or procedure needed to comply with this
part if it can demonstrate that prior to the adoption of that policy or
procedure, the policy or procedure was subjected to a public review and
comment process that is required by the State for other purposes and is
comparable to and consistent with the requirements of Secs. 300.280-
300.284.
(b) Documentation. The State must have on file with the Secretary
information to demonstrate that the requirements of paragraph (a) of
this section are met.
(Authority: 20 U.S.C. 1412(a)(20))
Sec. 300.149 [Reserved]
Sec. 300.150 State advisory panel.
The State must have on file with the Secretary information to
demonstrate that the State has established and maintains an advisory
panel for the purpose of providing policy guidance with respect to
special education and related services for children with disabilities
in the State in accordance with the requirements of Secs. 300.650-
300.653.
(Authority: 20 U.S.C. 1412(a)(21)(A))
Sec. 300.151 [Reserved]
Sec. 300.152 Prohibition against commingling.
(a) The State must have on file with the Secretary an assurance
satisfactory to the Secretary that the funds under Part B of the Act
are not commingled with State funds.
(b) The assurance in paragraph (a) of this section is satisfied by
the use of a separate accounting system that includes an audit trail of
the expenditure of the Part B funds. Separate bank accounts are not
required. (See 34 CFR 76.702 (Fiscal control and fund accounting
procedures).)
(Authority: 20 U.S.C. 1412(a)(18)(B))
Sec. 300.153 State-level nonsupplanting.
(a) General. (1) Except as provided in Sec. 300.230, funds paid to
a State under Part B of the Act must be used to supplement the level of
Federal, State, and local funds (including funds that are not under the
direct control of the SEA or LEAs) expended for special education and
related services provided to children with disabilities under Part B of
the Act and in no case to supplant these Federal, State, and local
funds.
(2) The State must have on file with the Secretary information to
demonstrate to the satisfaction of the Secretary that the requirements
of paragraph (a)(1) of this section are met.
(b) Waiver. If the State provides clear and convincing evidence
that all children with disabilities have available to them FAPE, the
Secretary may waive, in whole or in part, the requirements of paragraph
(a) of this section if the Secretary concurs with the evidence provided
by the State under Sec. 300.589.
(Authority: 20 U.S.C. 1412(a)(18)(c))
Sec. 300.154 Maintenance of State financial support.
(a) General. The State must have on file with the Secretary
information to demonstrate, on either a total or per-capita basis, that
the State will not reduce the amount of State financial support for
special education and related services for children with disabilities,
or otherwise made available because of the excess costs of educating
those children, below the amount of that support for the preceding
fiscal year.
(b) Reduction of funds for failure to maintain support. The
Secretary reduces the allocation of funds under section 611 of the Act
for any fiscal year following the fiscal year in which the State fails
to comply with the requirement of paragraph (a) of this section by the
same amount by which the State fails to meet the requirement.
(c) Waivers for exceptional or uncontrollable circumstances. The
[[Page 12432]]
Secretary may waive the requirement of paragraph (a) of this section
for a State, for one fiscal year at a time, if the Secretary determines
that--
(1) Granting a waiver would be equitable due to exceptional or
uncontrollable circumstances such as a natural disaster or a
precipitous and unforeseen decline in the financial resources of the
State; or
(2) The State meets the standard in Sec. 300.589 for a waiver of
the requirement to supplement, and not to supplant, funds received
under Part B of the Act.
(d) Subsequent years. If, for any fiscal year, a State fails to
meet the requirement of paragraph (a) of this section, including any
year for which the State is granted a waiver under paragraph (c) of
this section, the financial support required of the State in future
years under paragraph (a) of this section must be the amount that would
have been required in the absence of that failure and not the reduced
level of the State's support.
(Authority: 20 U.S.C. 1412(a)(19))
Sec. 300.155 Policies and procedures for use of Part B funds.
The State must have on file with the Secretary policies and
procedures designed to ensure that funds paid to the State under Part B
of the Act are spent in accordance with the provisions of Part B.
(Authority: 20 U.S.C. 1412(a)(18)(A))
Sec. 300.156 Annual description of use of Part B funds.
(a) In order to receive a grant in any fiscal year a State must
annually describe--
(1) How amounts retained for State-level activities under
Sec. 300.602 will be used to meet the requirements of this part;
(2) How those amounts will be allocated among the activities
described in Secs. 300.621 and 300.370 to meet State priorities based
on input from LEAs; and
(3) The percentage of those amounts, if any, that will be
distributed to LEAs by formula.
(b) If a State's plans for use of its funds under Secs. 300.370 and
300.620 for the forthcoming year do not change from the prior year, the
State may submit a letter to that effect to meet the requirement in
paragraph (a) of this section.
(Authority: 20 U.S.C. 1411(f)(5))
LEA and State Agency Eeligibility--General
Sec. 300.180 Condition of assistance.
An LEA or State agency is eligible for assistance under Part B of
the Act for a fiscal year if the agency demonstrates to the
satisfaction of the SEA that it meets the conditions in Secs. 300.220-
300.250.
(Authority: 20 U.S.C. 1413(a))
Sec. 300.181 Exception for prior LEA or State agency policies and
procedures on file with the SEA.
If an LEA or a State agency described in Sec. 300.194 has on file
with the SEA policies and procedures that demonstrate that the LEA or
State agency meets any requirement of Sec. 300.180, including any
policies and procedures filed under Part B of the Act as in effect
before June 4, 1997, the SEA shall consider the LEA or State agency to
have met the requirement for purposes of receiving assistance under
Part B of the Act.
(Authority: 20 U.S.C. 1413(b)(1))
Sec. 300.182 Amendments to LEA policies and procedures.
(a) Modification made by an LEA or a State agency. (1) Subject to
paragraph (b) of this section, policies and procedures submitted by an
LEA or a State agency in accordance with this subpart remain in effect
until it submits to the SEA the modifications that the LEA or State
agency decides are necessary.
(2) The provisions of this subpart apply to a modification to an
LEA's or State agency's policies and procedures in the same manner and
to the same extent that they apply to the LEA's or State agency's
original policies and procedures.
(b) Modifications required by the SEA. The SEA may require an LEA
or a State agency to modify its policies and procedures, but only to
the extent necessary to ensure the LEA's or State agency's compliance
with this part, if--
(1) After June 4, 1997, the provisions of the Act or the
regulations in this part are amended;
(2) There is a new interpretation of the Act by Federal or State
courts; or
(3) There is an official finding of noncompliance with Federal or
State law or regulations.
(Authority: 20 U.S.C. 1413(b))
Sec. 300.183 [Reserved]
Sec. 300.184 Excess cost requirement.
(a) General. Amounts provided to an LEA under Part B of the Act may
be used only to pay the excess costs of providing special education and
related services to children with disabilities.
(b) Definition. As used in this part, the term excess costs means
those costs that are in excess of the average annual per-student
expenditure in an LEA during the preceding school year for an
elementary or secondary school student, as may be appropriate. Excess
costs must be computed after deducting--
(1) Amounts received--
(i) Under Part B of the Act;
(ii) Under Part A of title I of the Elementary and Secondary
Education Act of 1965; or
(iii) Under Part A of title VII of that Act; and
(2) Any State or local funds expended for programs that would
qualify for assistance under any of those parts.
(c) LLimitation on use of Part B funds. (1) The excess cost
requirement prevents an LEA from using funds provided under Part B of
the Act to pay for all of the costs directly attributable to the
education of a child with a disability, subject to paragraph (c)(2) of
this section.
(2) The excess cost requirement does not prevent an LEA from using
Part B funds to pay for all of the costs directly attributable to the
education of a child with a disability in any of the ages 3, 4, 5, 18,
19, 20, or 21, if no local or State funds are available for nondisabled
children in that age range. However, the LEA must comply with the
nonsupplanting and other requirements of this part in providing the
education and services for these children.
(Authority: 20 U.S.C. 1401(7), 1413(a)(2)(A))
Sec. 300.185 Meeting the excess cost requirement.
(a)(1) General. An LEA meets the excess cost requirement if it has
spent at least a minimum average amount for the education of its
children with disabilities before funds under Part B of the Act are
used.
(2) The amount described in paragraph (a)(1) of this section is
determined using the formula in Sec. 300.184(b). This amount may not
include capital outlay or debt service.
(b) Joint establishment of eligibility. If two or more LEAs jointly
establish eligibility in accordance with Sec. 300.190, the minimum
average amount is the average of the combined minimum average amounts
determined under Sec. 300.184 in those agencies for elementary or
secondary school students, as the case may be.
(Authority: 20 U.S.C. 1413(a)(2)(A))
Secs. 300.186-300.189 [Reserved]
Sec. 300.190 Joint establishment of eligibility.
(a) General. An SEA may require an LEA to establish its eligibility
jointly
[[Page 12433]]
with another LEA if the SEA determines that the LEA would be ineligible
under this section because the agency would not be able to establish
and maintain programs of sufficient size and scope to effectively meet
the needs of children with disabilities.
(b) Charter school exception. An SEA may not require a charter
school that is an LEA to jointly establish its eligibility under
paragraph (a) of this section unless it is explicitly permitted to do
so under the State's charter school statute.
(c) Amount of payments. If an SEA requires the joint establishment
of eligibility under paragraph (a) of this section, the total amount of
funds made available to the affected LEAs must be equal to the sum of
the payments that each LEA would have received under Secs. 300.711-
300.714 if the agencies were eligible for these payments.
(Authority: 20 U.S.C. 1413(e)(1), and (2))
Sec. 300.191 [Reserved]
Sec. 300.192 Requirements for establishing eligibility.
(a) Requirements for LEAs in general. LEAs that establish joint
eligibility under this section must--
(1) Adopt policies and procedures that are consistent with the
State's policies and procedures under Secs. 300.121-300.156; and
(2) Be jointly responsible for implementing programs that receive
assistance under Part B of the Act.
(b) Requirements for educational service agencies in general. If an
educational service agency is required by State law to carry out
programs under Part B of the Act, the joint responsibilities given to
LEAs under Part B of the Act--
(1) Do not apply to the administration and disbursement of any
payments received by that educational service agency; and
(2) Must be carried out only by that educational service agency.
(c) Additional requirement. Notwithstanding any other provision of
Secs. 300.190-300.192, an educational service agency shall provide for
the education of children with disabilities in the least restrictive
environment, as required by Sec. 300.130.
(Authority: 20 U.S.C. 1413(e)(3), and (4))
Sec. 300.193 [Reserved]
Sec. 300.194 State agency eligibility.
Any State agency that desires to receive a subgrant for any fiscal
year under Secs. 300.711-300.714 must demonstrate to the satisfaction
of the SEA that--
(a) All children with disabilities who are participating in
programs and projects funded under Part B of the Act receive FAPE, and
that those children and their parents are provided all the rights and
procedural safeguards described in this part; and
(b) The agency meets the other conditions of this subpart that
apply to LEAs.
(Authority: 20 U.S.C. 1413(i))
Sec. 300.195 [Reserved]
Sec. 300.196 Notification of LEA or State agency in case of
ineligibility.
If the SEA determines that an LEA or State agency is not eligible
under Part B of the Act, the SEA shall--
(a) Notify the LEA or State agency of that determination; and
(b) Provide the LEA or State agency with reasonable notice and an
opportunity for a hearing.
(Authority: 20 U.S.C. 1413(c))
Sec. 300.197 LEA and State agency compliance.
(a) General. If the SEA, after reasonable notice and an opportunity
for a hearing, finds that an LEA or State agency that has been
determined to be eligible under this section is failing to comply with
any requirement described in Secs. 300.220-300.250, the SEA shall
reduce or may not provide any further payments to the LEA or State
agency until the SEA is satisfied that the LEA or State agency is
complying with that requirement.
(b) Notice requirement. Any State agency or LEA in receipt of a
notice described in paragraph (a) of this section shall, by means of
public notice, take the measures necessary to bring the pendency of an
action pursuant to this section to the attention of the public within
the jurisdiction of the agency.
(c) In carrying out its functions under this section, each SEA
shall consider any decision resulting from a hearing under
Secs. 300.507-300.528 that is adverse to the LEA or State agency
involved in the decision.
(Authority: 20 U.S.C. 1413(d))
LEA and State Agency Eligibility--Specific Conditions
Sec. 300.220 Consistency with State policies.
(a) General. The LEA, in providing for the education of children
with disabilities within its jurisdiction, must have in effect
policies, procedures, and programs that are consistent with the State
policies and procedures established under Secs. 300.121-300.156.
(b) Policies on file with SEA. The LEA must have on file with the
SEA the policies and procedures described in paragraph (a) of this
section.
(Authority: 20 U.S.C. 1413(a)(1))
Sec. 300.221 Implementation of CSPD.
The LEA must have on file with the SEA information to demonstrate
that--
(a) All personnel necessary to carry out Part B of the Act within
the jurisdiction of the agency are appropriately and adequately
prepared, consistent with the requirements of Secs. 300.380-300.382;
and
(b) To the extent the LEA determines appropriate, it shall
contribute to and use the comprehensive system of personnel development
of the State established under Sec. 300.135.
(Authority: 20 U.S.C. 1413(a)(3))
Secs. 300.222-300.229 [Reserved]
Sec. 300.230 Use of amounts.
The LEA must have on file with the SEA information to demonstrate
that amounts provided to the LEA under Part B of the Act--
(a) Will be expended in accordance with the applicable provisions
of this part;
(b) Will be used only to pay the excess costs of providing special
education and related services to children with disabilities,
consistent with Secs. 300.184-300.185; and
(c) Will be used to supplement State, local, and other Federal
funds and not to supplant those funds.
(Authority: 20 U.S.C. 1413(a)(2)(A))
Sec. 300.231 Maintenance of effort.
(a) General. Except as provided in Secs. 300.232 and 300.233, funds
provided to an LEA under Part B of the Act may not be used to reduce
the level of expenditures for the education of children with
disabilities made by the LEA from local funds below the level of those
expenditures for the preceding fiscal year.
(b) Information. The LEA must have on file with the SEA information
to demonstrate that the requirements of paragraph (a) of this section
are met.
(c) Standard. (1) Except as provided in paragraph (c)(2) of this
section, the SEA determines that an LEA complies with paragraph (a) of
this section for purposes of establishing the LEA's eligibility for an
award for a fiscal year if the LEA budgets, for the education of
children with disabilities, at least the same total or per-capita
amount from either of the following sources as the LEA spent for that
purpose from the same source for the most recent prior year for which
information is available:
(i) Local funds only.
(ii) The combination of State and local funds.
(2) An LEA that relies on paragraph (c)(1)(i) of this section for
any fiscal year
[[Page 12434]]
must ensure that the amount of local funds it budgets for the education
of children with disabilities in that year is at least the same, either
in total or per capita, as the amount it spent for that purpose in--
(i) The most recent fiscal year for which information is available,
if that year is, or is before, the first fiscal year beginning on or
after July 1, 1997; or
(ii) If later, the most recent fiscal year for which information is
available and the standard in paragraph (c)(1)(i) of this section was
used to establish its compliance with this section.
(3) The SEA may not consider any expenditures made from funds
provided by the Federal Government for which the SEA is required to
account to the Federal Government or for which the LEA is required to
account to the Federal Government directly or through the SEA in
determining an LEA's compliance with the requirement in paragraph (a)
of this section.
(Authority: 20 U.S.C. 1413(a)(2)(A))
Sec. 300.232 Exception to maintenance of effort.
An LEA may reduce the level of expenditures by the LEA under Part B
of the Act below the level of those expenditures for the preceding
fiscal year if the reduction is attributable to the following:
(a)(1) The voluntary departure, by retirement or otherwise, or
departure for just cause, of special education or related services
personnel, who are replaced by qualified, lower-salaried staff.
(2) In order for an LEA to invoke the exception in paragraph (a)(1)
of this section, the LEA must ensure that those voluntary retirements
or resignations and replacements are in full conformity with:
(i) Existing school board policies in the agency;
(ii) The applicable collective bargaining agreement in effect at
that time; and
(iii) Applicable State statutes.
(b) A decrease in the enrollment of children with disabilities.
(c) The termination of the obligation of the agency, consistent
with this part, to provide a program of special education to a
particular child with a disability that is an exceptionally costly
program, as determined by the SEA, because the child--
(1) Has left the jurisdiction of the agency;
(2) Has reached the age at which the obligation of the agency to
provide FAPE to the child has terminated; or
(3) No longer needs the program of special education.
(d) The termination of costly expenditures for long-term purchases,
such as the acquisition of equipment or the construction of school
facilities.
(Authority: 20 U.S.C. 1413(a)(2)(B))
Sec. 300.233 Treatment of Federal funds in certain fiscal years.
(a)(1) Subject to paragraphs (a)(2) and (b) of this section, for
any fiscal year for which amounts appropriated to carry out section 611
of the Act exceeds $4,100,000,000, an LEA may treat as local funds up
to 20 percent of the amount of funds it receives under Part B of the
Act that exceeds the amount it received under Part B of the Act for the
previous fiscal year.
(2) The requirements of Secs. 300.230(c) and 300.231 do not apply
with respect to the amount that may be treated as local funds under
paragraph (a)(1) of this section.
(b) If an SEA determines that an LEA is not meeting the
requirements of this part, the SEA may prohibit the LEA from treating
funds received under Part B of the Act as local funds under paragraph
(a)(1) of this section for any fiscal year, but only if it is
authorized to do so by the State constitution or a State statute.
(Authority: 20 U.S.C. 1413(a)(2)(C))
Sec. 300.234 Schoolwide programs under title I of the ESEA.
(a) General; limitation on amount of Part B funds used. An LEA may
use funds received under Part B of the Act for any fiscal year to carry
out a schoolwide program under section 1114 of the Elementary and
Secondary Education Act of 1965, except that the amount used in any
schoolwide program may not exceed--
(1)(i) The amount received by the LEA under Part B for that fiscal
year; divided by
(ii) The number of children with disabilities in the jurisdiction
of the LEA; and multiplied by
(2) The number of children with disabilities participating in the
schoolwide program.
(b) Funding conditions. The funds described in paragraph (a) of
this section are subject to the following conditions:
(1) The funds must be considered as Federal Part B funds for
purposes of the calculations required by Secs. 300.230(b) and (c).
(2) The funds may be used without regard to the requirements of
Sec. 300.230(a).
(c) Meeting other Part B requirements. Except as provided in
paragraph (b) of this section, all other requirements of Part B must be
met by an LEA using Part B funds in accordance with paragraph (a) of
this section, including ensuring that children with disabilities in
schoolwide program schools--
(1) Receive services in accordance with a properly developed IEP;
and
(2) Are afforded all of the rights and services guaranteed to
children with disabilities under the IDEA.
(Authority: 20 U.S.C. 1413(a)(2)(D))
Sec. 300.235 Permissive use of funds.
(a) General. Subject to paragraph (b) of this section, funds
provided to an LEA under Part B of the Act may be used for the
following activities:
(1) Services and aids that also benefit nondisabled children. For
the costs of special education and related services and supplementary
aids and services provided in a regular class or other education-
related setting to a child with a disability in accordance with the IEP
of the child, even if one or more nondisabled children benefit from
these services.
(2) Integrated and coordinated services system. To develop and
implement a fully integrated and coordinated services system in
accordance with Sec. 300.244.
(b) Non-applicability of certain provisions. An LEA does not
violate Secs. 300.152, 300.230, and 300.231 based on its use of funds
provided under Part B of the Act in accordance with paragraphs (a)(1)
and (a)(2) of this section.
(Authority: 20 U.S.C. 1413(a)(4))
Secs. 300.236-300.239 [Reserved]
Sec. 300.240 Information for SEA.
(a) The LEA shall provide the SEA with information necessary to
enable the SEA to carry out its duties under Part B of the Act,
including, with respect to Secs. 300.137 and 300.138, information
relating to the performance of children with disabilities participating
in programs carried out under Part B of the Act.
(b) The LEA must have on file with the SEA an assurance
satisfactory to the SEA that the LEA will comply with the requirements
of paragraph (a) of this section.
(Authority: 20 U.S.C. 1413(a)(6))
Sec. 300.241 Treatment of charter schools and their students.
The LEA must have on file with the SEA information to demonstrate
that in carrying out this part with respect to charter schools that are
public schools of the LEA, the LEA will--
(a) Serve children with disabilities attending those schools in the
same
[[Page 12435]]
manner as it serves children with disabilities in its other schools;
and
(b) Provide funds under Part B of the Act to those schools in the
same manner as it provides those funds to its other schools.
(Authority: 20 U.S.C. 1413(a)(5))
Sec. 300.242 Public information.
The LEA must have on file with the SEA information to demonstrate
to the satisfaction of the SEA that it will make available to parents
of children with disabilities and to the general public all documents
relating to the eligibility of the agency under Part B of the Act.
(Authority: 20 U.S.C. 1413(a)(7))
Sec. 300.243 [Reserved]
Sec. 300.244 Coordinated services system.
(a) General. An LEA may not use more than 5 percent of the amount
the agency receives under Part B of the Act for any fiscal year, in
combination with other amounts (which must include amounts other than
education funds), to develop and implement a coordinated services
system designed to improve results for children and families, including
children with disabilities and their families.
(b) Activities. In implementing a coordinated services system under
this section, an LEA may carry out activities that include--
(1) Improving the effectiveness and efficiency of service delivery,
including developing strategies that promote accountability for
results;
(2) Service coordination and case management that facilitate the
linkage of IEPs under Part B of the Act and IFSPs under Part C of the
Act with individualized service plans under multiple Federal and State
programs, such as title I of the Rehabilitation Act of 1973 (vocational
rehabilitation), title XIX of the Social Security Act (Medicaid), and
title XVI of the Social Security Act (supplemental security income);
(3) Developing and implementing interagency financing strategies
for the provision of education, health, mental health, and social
services, including transition services and related services under the
Act; and
(4) Interagency personnel development for individuals working on
coordinated services.
(c) Coordination with certain projects under Elementary and
Secondary Education Act of 1965. If an LEA is carrying out a
coordinated services project under title XI of the Elementary and
Secondary Education Act of 1965 and a coordinated services project
under Part B of the Act in the same schools, the agency shall use the
amounts under Sec. 300.244 in accordance with the requirements of that
title.
(Authority: 20 U.S.C. 1413(f))
School-Based Improvement Plan
Sec. 300.245 School-based improvement plan.
(a) General. Each LEA may, in accordance with paragraph (b) of this
section, use funds made available under Part B of the Act to permit a
public school within the jurisdiction of the LEA to design, implement,
and evaluate a school-based improvement plan that--
(1) Is consistent with the purposes described in section 651(b) of
the Act; and
(2) Is designed to improve educational and transitional results for
all children with disabilities and, as appropriate, for other children
consistent with Sec. 300.235(a) and (b) in that public school.
(b) Authority. (1) General. An SEA may grant authority to an LEA to
permit a public school described in Sec. 300.245 (through a school-
based standing panel established under Sec. 300.247(b)) to design,
implement, and evaluate a school-based improvement plan described in
Sec. 300.245 for a period not to exceed 3 years.
(2) Responsibility of LEA. If an SEA grants the authority described
in paragraph (b)(1) of this section, an LEA that is granted this
authority must have the sole responsibility of oversight of all
activities relating to the design, implementation, and evaluation of
any school-based improvement plan that a public school is permitted to
design under this section.
(Authority: 20 U.S.C. 1413(g)(1) and (g)(2)).
Sec. 300.246 Plan requirements.
A school-based improvement plan described in Sec. 300.245 must--
(a) Be designed to be consistent with the purposes described in
section 651(b) of the Act and to improve educational and transitional
results for all children with disabilities and, as appropriate, for
other children consistent with Sec. 300.235(a) and (b), who attend the
school for which the plan is designed and implemented;
(b) Be designed, evaluated, and, as appropriate, implemented by a
school-based standing panel established in accordance with
Sec. 300.247(b);
(c) Include goals and measurable indicators to assess the progress
of the public school in meeting these goals; and
(d) Ensure that all children with disabilities receive the services
described in their IEPs.
(Authority: 20 U.S.C. 1413(g)(3))
Sec. 300.247 Responsibilities of the LEA.
An LEA that is granted authority under Sec. 300.245(b) to permit a
public school to design, implement, and evaluate a school-based
improvement plan shall--
(a) Select each school under the jurisdiction of the agency that is
eligible to design, implement, and evaluate the plan;
(b) Require each school selected under paragraph (a) of this
section, in accordance with criteria established by the LEA under
paragraph (c) of this section, to establish a school-based standing
panel to carry out the duties described in Sec. 300.246(b);
(c) Establish--
(1) Criteria that must be used by the LEA in the selection of an
eligible school under paragraph (a) of this section;
(2) Criteria that must be used by a public school selected under
paragraph (a) of this section in the establishment of a school-based
standing panel to carry out the duties described in Sec. 300.246(b) and
that ensure that the membership of the panel reflects the diversity of
the community in which the public school is located and includes, at a
minimum--
(i) Parents of children with disabilities who attend a public
school, including parents of children with disabilities from unserved
and underserved populations, as appropriate;
(ii) Special education and general education teachers of public
schools;
(iii) Special education and general education administrators, or
the designee of those administrators, of those public schools; and
(iv) Related services providers who are responsible for providing
services to the children with disabilities who attend those public
schools; and
(3) Criteria that must be used by the LEA with respect to the
distribution of funds under Part B of the Act to carry out this
section;
(d) Disseminate the criteria established under paragraph (c) of
this section to local school district personnel and local parent
organizations within the jurisdiction of the LEA;
(e) Require a public school that desires to design, implement, and
evaluate a school-based improvement plan to submit an application at
the time, in the manner and accompanied by the information, that the
LEA shall reasonably require; and
(f) Establish procedures for approval by the LEA of a school-based
improvement plan designed under Part B of the Act.
[[Page 12436]]
(Authority:1413(g)(4))
Sec. 300.248 Limitation.
A school-based improvement plan described in Sec. 300.245(a) may be
submitted to an LEA for approval only if a consensus with respect to
any matter relating to the design, implementation, or evaluation of the
goals of the plan is reached by the school-based standing panel that
designed the plan.
(Authority: 20 U.S.C. 1413(g)(5))
Sec. 300.249 Additional requirements.
(a) Parental involvement. In carrying out the requirements of
Secs. 300.245-300.250, an LEA shall ensure that the parents of children
with disabilities are involved in the design, evaluation, and, if
appropriate, implementation of school-based improvement plans in
accordance with this section.
(b) Plan approval. An LEA may approve a school-based improvement
plan of a public school within the jurisdiction of the agency for a
period of 3 years, if--
(1) The approval is consistent with the policies, procedures, and
practices established by the LEA and in accordance with Secs. 300.245-
300.250; and
(2) A majority of parents of children who are members of the
school-based standing panel, and a majority of other members of the
school-based standing panel that designed the plan, agree in writing to
the plan.
(Authority: 20 U.S.C. 1413(g)(6))
Sec. 300.250 Extension of plan.
If a public school within the jurisdiction of an LEA meets the
applicable requirements and criteria described in Secs. 300.246 and
300.247 at the expiration of the 3-year approval period described
Sec. 300.249(b), the agency may approve a school-based improvement plan
of the school for an additional 3-year period.
(Authority: 20 U.S.C. 1413(g)(7))
Secretary of the Interior--Eligibility
Sec. 300.260 Submission of information.
The Secretary may provide the Secretary of the Interior amounts
under Sec. 300.715(b) and (c) for a fiscal year only if the Secretary
of the Interior submits to the Secretary information that--
(a) Meets the requirements of section 612(a)(1), (3)--(9), (10)(B),
(C), (11)--(12), (14)--(17), (20), (21) and (22) of the Act (including
monitoring and evaluation activities);
(b) Meets the requirements of section 612(b) and (e) of the Act;
(c) Meets the requirements of section 613(a)(1), (2)(A)(i), (6),
and (7) of the Act;
(d) Meets the requirements of this part that implement the sections
of the Act listed in paragraphs (a)-(c) of this section;
(e) Includes a description of how the Secretary of the Interior
will coordinate the provision of services under Part B of the Act with
LEAs, tribes and tribal organizations, and other private and Federal
service providers;
(f) Includes an assurance that there are public hearings, adequate
notice of the hearings, and an opportunity for comment afforded to
members of tribes, tribal governing bodies, and affected local school
boards before the adoption of the policies, programs, and procedures
described in paragraph (a) of this section;
(g) Includes an assurance that the Secretary of the Interior will
provide the information that the Secretary may require to comply with
section 618 of the Act, including data on the number of children with
disabilities served and the types and amounts of services provided and
needed;
(h)(1) Includes an assurance that the Secretary of the Interior and
the Secretary of Health and Human Services have entered into a
memorandum of agreement, to be provided to the Secretary, for the
coordination of services, resources, and personnel between their
respective Federal, State, and local offices and with the SEAs and LEAs
and other entities to facilitate the provision of services to Indian
children with disabilities residing on or near reservations.
(2) The agreement must provide for the apportionment of
responsibilities and costs, including child find, evaluation,
diagnosis, remediation or therapeutic measures, and (if appropriate)
equipment and medical or personal supplies, as needed for a child with
a disability to remain in a school or program; and
(i) Includes an assurance that the Department of the Interior will
cooperate with the Department in its exercise of monitoring and
oversight of the requirements in this section and Secs. 300.261-
300.267, and any agreements entered into between the Secretary of the
Interior and other entities under Part B of the Act, and will fulfill
its duties under Part B of the Act. Section 616(a) of the Act applies
to the information described in this section.
(Authority: 20 U.S.C. 1411(i)(2))
Sec. 300.261 Public participation.
In fulfilling the requirements of Sec. 300.260 the Secretary of the
Interior shall provide for public participation consistent with
Secs. 300.280-300.284.
(Authority: 20 U.S.C. 1411(i))
Sec. 300.262 Use of Part B funds.
(a) The Department of the Interior may use five percent of its
payment under Sec. 300.715(b) and (c) in any fiscal year, or $500,000,
whichever is greater, for administrative costs in carrying out the
provisions of this part.
(b) Payments to the Secretary of the Interior under Sec. 300.716
must be used in accordance with that section.
(Authority: 20 U.S.C. 1411(i))
Sec. 300.263 Plan for coordination of services.
(a) The Secretary of the Interior shall develop and implement a
plan for the coordination of services for all Indian children with
disabilities residing on reservations covered under Part B of the Act.
(b) The plan must provide for the coordination of services
benefiting these children from whatever source, including tribes, the
Indian Health Service, other BIA divisions, and other Federal agencies.
(c) In developing the plan, the Secretary of the Interior shall
consult with all interested and involved parties.
(d) The plan must be based on the needs of the children and the
system best suited for meeting those needs, and may involve the
establishment of cooperative agreements between the BIA, other Federal
agencies, and other entities.
(e) The plan also must be distributed upon request to States, SEAs
and LEAs, and other agencies providing services to infants, toddlers,
and children with disabilities, to tribes, and to other interested
parties.
(Authority: 20 U.S.C. 1411(i)(4))
Sec. 300.264 Definitions.
(a) Indian. As used in this part, the term Indian means an
individual who is a member of an Indian tribe.
(b) Indian tribe. As used in this part, the term Indian tribe means
any Federal or State Indian tribe, band, rancheria, pueblo, colony, or
community, including any Alaska Native village or regional village
corporation (as defined in or established under the Alaska Native
Claims Settlement Act).
(Authority: 20 U.S.C. 1401(9) and (10))
Sec. 300.265 Establishment of advisory board.
(a) To meet the requirements of section 612(a)(21) of the Act, the
Secretary of the Interior shall establish, not later than December 4,
1997 under
[[Page 12437]]
the BIA, an advisory board composed of individuals involved in or
concerned with the education and provision of services to Indian
infants, toddlers, and children with disabilities, including Indians
with disabilities, Indian parents of the children, teachers, service
providers, State and local educational officials, representatives of
tribes or tribal organizations, representatives from State Interagency
Coordinating Councils under section 641 of the Act in States having
reservations, and other members representing the various divisions and
entities of the BIA. The chairperson must be selected by the Secretary
of the Interior.
(b) The advisory board shall--
(1) Assist in the coordination of services within the BIA and with
other local, State, and Federal agencies in the provision of education
for infants, toddlers, and children with disabilities;
(2) Advise and assist the Secretary of the Interior in the
performance of the Secretary's responsibilities described in section
611(i) of the Act;
(3) Develop and recommend policies concerning effective inter- and
intra-agency collaboration, including modifications to regulations, and
the elimination of barriers to inter- and intra-agency programs and
activities;
(4) Provide assistance and disseminate information on best
practices, effective program coordination strategies, and
recommendations for improved educational programming for Indian
infants, toddlers, and children with disabilities; and
(5) Provide assistance in the preparation of information required
under Sec. 300.260(g).
(Authority: 20 U.S.C. 1411(i)(5))
Sec. 300.266 Annual report by advisory board.
(a) General. The advisory board established under Sec. 300.265
shall prepare and submit to the Secretary of the Interior and to the
Congress an annual report containing a description of the activities of
the advisory board for the preceding year.
(b) Report to the Secretary. The Secretary of the Interior shall
make available to the Secretary the report described in paragraph (a)
of this section.
(Authority: 20 U.S.C. 1411(i)(6)(A))
Sec. 300.267 Applicable regulations.
The Secretary of the Interior shall comply with the requirements of
Secs. 300.301-300.303, 300.305-300.309, 300.340-300.348, 300.351,
300.360-300.382, 300.400-300.402, 300.500-300.586, 300.600-300.621, and
300.660-300.662.
(Authority: 20 U.S.C. 1411(i)(2)(A))
Public Participation
Sec. 300.280 Public hearings before adopting State policies and
procedures.
Prior to its adoption of State policies and procedures related to
this part, the SEA shall--
(a) Make the policies and procedures available to the general
public;
(b) Hold public hearings; and
(c) Provide an opportunity for comment by the general public on the
policies and procedures.
(Authority: 20 U.S.C. 1412(a)(20))
Sec. 300.281 Notice.
(a) The SEA shall provide adequate notice to the general public of
the public hearings.
(b) The notice must be in sufficient detail to inform the general
public about--
(1) The purpose and scope of the State policies and procedures and
their relation to Part B of the Act;
(2) The availability of the State policies and procedures;
(3) The date, time, and location of each public hearing;
(4) The procedures for submitting written comments about the
policies and procedures; and
(5) The timetable for submitting the policies and procedures to the
Secretary for approval.
(c) The notice must be published or announced--
(1) In newspapers or other media, or both, with circulation
adequate to notify the general public about the hearings; and
(2) Enough in advance of the date of the hearings to afford
interested parties throughout the State a reasonable opportunity to
participate.
(Authority: 20 U.S.C. 1412(a)(20))
Sec. 300.282 Opportunity to participate; comment period.
(a) The SEA shall conduct the public hearings at times and places
that afford interested parties throughout the State a reasonable
opportunity to participate.
(b) The policies and procedures must be available for comment for a
period of at least 30 days following the date of the notice under
Sec. 300.281.
(Authority: 20 U.S.C. 1412(a)(20))
Sec. 300.283 Review of public comments before adopting policies and
procedures.
Before adopting the policies and procedures, the SEA shall--
(a) Review and consider all public comments; and
(b) Make any necessary modifications in those policies and
procedures.
(Authority: 20 U.S.C. 1412(a)(20))
Sec. 300.284 Publication and availability of approved policies and
procedures.
After the Secretary approves a State's policies and procedures, the
SEA shall give notice in newspapers or other media, or both, that the
policies and procedures are approved. The notice must name places
throughout the State where the policies and procedures are available
for access by any interested person.
(Authority: 20 U.S.C. 1412(a)(20))
Subpart C--Services
Free Appropriate Public Education
Sec. 300.300 Provision of FAPE.
(a) General. (1) Subject to paragraphs (b) and (c) of this section
and Sec. 300.311, each State receiving assistance under this part shall
ensure that FAPE is available to all children with disabilities, aged 3
through 21, residing in the State, including children with disabilities
who have been suspended or expelled from school.
(2) As a part of its obligation under paragraph (a)(1) of this
section, each State must ensure that the requirements of Sec. 300.125
(to identify, locate, and evaluate all children with disabilities) are
implemented by public agencies throughout the State.
(3)(i) The services provided to the child under this part address
all of the child's identified special education and related services
needs described in paragraph (a) of this section.
(ii) The services and placement needed by each child with a
disability to receive FAPE must be based on the child's unique needs
and not on the child's disability.
(b) Exception for age ranges 3-5 and 18-21. This paragraph provides
the rules for applying the requirements in paragraph (a) of this
section to children with disabilities aged 3, 4, 5, 18, 19, 20, and 21
within the State:
(1) If State law or a court order requires the State to provide
education for children with disabilities in any disability category in
any of these age groups, the State must make FAPE available to all
children with disabilities of the same age who have that disability.
(2) If a public agency provides education to nondisabled children
in any of these age groups, it must make FAPE available to at least a
proportionate number of children with disabilities of the same age.
(3) If a public agency provides education to 50 percent or more of
its
[[Page 12438]]
children with disabilities in any disability category in any of these
age groups, it must make FAPE available to all its children with
disabilities of the same age who have that disability. This provision
does not apply to children aged 3 through 5 for any fiscal year for
which the State receives a grant under section 619(a)(1) of the Act.
(4) If a public agency provides education to a child with a
disability in any of these age groups, it must make FAPE available to
that child and provide that child and his or her parents all of the
rights under Part B of the Act and this part.
(5) A State is not required to make FAPE available to a child with
a disability in one of these age groups if--
(i) State law expressly prohibits, or does not authorize, the
expenditure of public funds to provide education to nondisabled
children in that age group; or
(ii) The requirement is inconsistent with a court order that
governs the provision of free public education to children with
disabilities in that State.
(c) Children aged 3 through 21 on Indian reservations. With the
exception of children identified in Sec. 300.715(b) and (c), the SEA
shall ensure that all of the requirements of Part B of the Act are
implemented for all children with disabilities aged 3 through 21 on
reservations.
(Authority: 20 U.S.C. 1412(a)(1), 1411(i)(1)(C), S. Rep. No. 94--
168, p. 19 (1975))
Sec. 300.301 FAPE--methods and payments.
(a) Each State may use whatever State, local, Federal, and private
sources of support are available in the State to meet the requirements
of this part. For example, if it is necessary to place a child with a
disability in a residential facility, a State could use joint
agreements between the agencies involved for sharing the cost of that
placement.
(b) Nothing in this part relieves an insurer or similar third party
from an otherwise valid obligation to provide or to pay for services
provided to a child with a disability.
(c) Consistent with Secs. 300.342(b)(2) and 300.343(b), the State
must ensure that there is no delay in implementing a child's IEP,
including any case in which the payment source for providing or paying
for special education and related services to the child is being
determined.
(Authority: 20 U.S.C. 1401(8), 1412(a)(1))
Sec. 300.302 Residential placement.
If placement in a public or private residential program is
necessary to provide special education and related services to a child
with a disability, the program, including non-medical care and room and
board, must be at no cost to the parents of the child.
(Authority: 20 U.S.C. 1412(a)(1), 1412(a)(10)(B))
Sec. 300.303 Proper functioning of hearing aids.
Each public agency shall ensure that the hearing aids worn in
school by children with hearing impairments, including deafness, are
functioning properly.
(Authority: 20 U.S.C. 1412(a)(1))
Sec. 300.304 Full educational opportunity goal.
Each SEA shall ensure that each public agency establishes and
implements a goal of providing full educational opportunity to all
children with disabilities in the area served by the public agency.
(Authority: 20 U.S.C. 1412(a)(2)
Sec. 300.305 Program options.
Each public agency shall take steps to ensure that its children
with disabilities have available to them the variety of educational
programs and services available to nondisabled children in the area
served by the agency, including art, music, industrial arts, consumer
and homemaking education, and vocational education.
(Authority: 20 U.S.C. 1412(a)(2), 1413(a)(1))
Sec. 300.306 Nonacademic services.
(a) Each public agency shall take steps to provide nonacademic and
extracurricular services and activities in the manner necessary to
afford children with disabilities an equal opportunity for
participation in those services and activities.
(b) Nonacademic and extracurricular services and activities may
include counseling services, athletics, transportation, health
services, recreational activities, special interest groups or clubs
sponsored by the public agency, referrals to agencies that provide
assistance to individuals with disabilities, and employment of
students, including both employment by the public agency and assistance
in making outside employment available.
(Authority: 20 U.S.C. 1412(a)(1))
Sec. 300.307 Physical education.
(a) General. Physical education services, specially designed if
necessary, must be made available to every child with a disability
receiving FAPE.
(b) Regular physical education. Each child with a disability must
be afforded the opportunity to participate in the regular physical
education program available to nondisabled children unless--
(1) The child is enrolled full time in a separate facility; or
(2) The child needs specially designed physical education, as
prescribed in the child's IEP.
(c) Special physical education. If specially designed physical
education is prescribed in a child's IEP, the public agency responsible
for the education of that child shall provide the services directly or
make arrangements for those services to be provided through other
public or private programs.
(d) Education in separate facilities. The public agency responsible
for the education of a child with a disability who is enrolled in a
separate facility shall ensure that the child receives appropriate
physical education services in compliance with paragraphs (a) and (c)
of this section.
(Authority: 20 U.S.C. 1412(a)(25), 1412(a)(5)(A))
Sec. 300.308 Assistive technology.
(a) Each public agency shall ensure that assistive technology
devices or assistive technology services, or both, as those terms are
defined in Secs. 300.5-300.6, are made available to a child with a
disability if required as a part of the child's--
(1) Special education under Sec. 300.26;
(2) Related services under Sec. 300.24; or
(3) Supplementary aids and services under Secs. 300.28 and
300.550(b)(2).
(b) On a case-by-case basis, the use of school-purchased assistive
technology devices in a child's home or in other settings is required
if the child's IEP team determines that the child needs access to those
devices in order to receive FAPE.
(Authority: 20 U.S.C. 1412(a)(12)(B)(i))
Sec. 300.309 Extended school year services.
(a) General. (1) Each public agency shall ensure that extended
school year services are available as necessary to provide FAPE,
consistent with paragraph (a)(2) of this section.
(2) Extended school year 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.
(3) In implementing the requirements of this section, a public
agency may not--
(i) Limit extended school year services to particular categories of
disability; or
(ii) Unilaterally limit the type, amount, or duration of those
services.
[[Page 12439]]
(b) Definition. As used in this section, the term extended school
year services means special education and related services that--
(1) Are provided to a child with a disability--
(i) Beyond the normal school year of the public agency;
(ii) In accordance with the child's IEP; and
(iii) At no cost to the parents of the child; and
(2) Meet the standards of the SEA.
(Authority: 20 U.S.C. 1412(a)(1))
Sec. 300.310 [Reserved]
Sec. 300.311 FAPE requirements for students with disabilities in adult
prisons.
(a) Exception to FAPE for certain students. Except as provided in
Sec. 300.122(a)(2)(ii), the obligation to make FAPE available to all
children with disabilities does not apply with respect to students aged
18 through 21 to the extent that State law does not require that
special education and related services under Part B of the Act be
provided to students with disabilities who, in the last educational
placement prior to their incarceration in an adult correctional
facility--
(1) Were not actually identified as being a child with a disability
under Sec. 300.7; and
(2) Did not have an IEP under Part B of the Act.
(b) Requirements that do not apply. The following requirements do
not apply to students with disabilities who are convicted as adults
under State law and incarcerated in adult prisons:
(1) The requirements contained in Sec. 300.138 and
Sec. 300.347(a)(5)(i) (relating to participation of children with
disabilities in general assessments).
(2) The requirements in Sec. 300.347(b) (relating to transition
planning and transition services), with respect to the students whose
eligibility under Part B of the Act will end, because of their age,
before they will be eligible to be released from prison based on
consideration of their sentence and eligibility for early release.
(c) Modifications of IEP or placement. (1) Subject to paragraph
(c)(2) of this section, the IEP team of a student with a disability,
who is convicted as an adult under State law and incarcerated in an
adult prison, may modify the student's IEP or placement if the State
has demonstrated a bona fide security or compelling penological
interest that cannot otherwise be accommodated.
(2) The requirements of Secs. 300.340(a) and 300.347(a) relating to
IEPs, and 300.550(b) relating to LRE, do not apply with respect to the
modifications described in paragraph (c)(1) of this section.
(Authority: 20 U.S.C. 1412(a)(1), 1414(d)(6))
Sec. 300.312 Children with disabilities in public charter schools.
(a) Children with disabilities who attend public charter schools
and their parents retain all rights under this part.
(b) If the public charter school is an LEA, consistent with
Sec. 300.17, that receives funding under Secs. 300.711-300.714, that
charter school is responsible for ensuring that the requirements of
this part are met, unless State law assigns that responsibility to some
other entity.
(c) If the public charter school is a school of an LEA that
receives funding under Secs. 300.711-300.714 and includes other public
schools--
(1) The LEA is responsible for ensuring that the requirements of
this part are met, unless State law assigns that responsibility to some
other entity; and
(2) The LEA must meet the requirements of Sec. 300.241.
(d)(1) If the public charter school is not an LEA receiving funding
under Secs. 300.711-300.714, or a school that is part of an LEA
receiving funding under Secs. 300.711-300.714, the SEA is responsible
for ensuring that the requirements of this part are met.
(2) Paragraph (d)(1) of this section does not preclude a State from
assigning initial responsibility for ensuring the requirements of this
part are met to another entity; however, the SEA must maintain the
ultimate responsibility for ensuring compliance with this part,
consistent with Sec. 300.600.
(Authority: 20 U.S.C. 1413(a)(5))
Sec. 300.313 Children experiencing developmental delays.
(a) Use of term developmental delay. (1) A State that adopts the
term developmental delay under Sec. 300.7(b) determines whether it
applies to children aged 3 through 9, or to a subset of that age range
(e.g., ages 3 through 5).
(2) A State may not require an LEA to adopt and use the term
developmental delay for any children within its jurisdiction.
(3) If an LEA uses the term developmental delay for children
described in Sec. 300.7(b), the LEA must conform to both the State's
definition of that term and to the age range that has been adopted by
the State.
(4) If a State does not adopt the term developmental delay, an LEA
may not independently use that term as a basis for establishing a
child's eligibility under this part.
(b) Use of individual disability categories. (1) Any State or LEA
that elects to use the term developmental delay for children aged 3
through 9 may also use one or more of the disability categories
described in Sec. 300.7 for any child within that age range if it is
determined, through the evaluation conducted under Secs. 300.530-
300.536, that the child has an impairment described in Sec. 300.7, and
because of that impairment needs special education and related
services.
(2) The State or LEA shall ensure that all of the child's special
education and related services needs that have been identified through
the evaluation described in paragraph (b)(1) of this section are
appropriately addressed.
(c) Common definition of developmental delay. A State may adopt a
common definition of developmental delay for use in programs under
Parts B and C of the Act.
(Authority: 20 U.S.C. 1401(3)(A) and (B))
Evaluations and Reevaluations
Sec. 300.320 Initial evaluations.
(a) Each public agency shall ensure that a full and individual
evaluation is conducted for each child being considered for special
education and related services under Part B of the Act--
(1) To determine if the child is a ``child with a disability''
under Sec. 300.7; and
(2) To determine the educational needs of the child.
(b) In implementing the requirements of paragraph (a) of this
section, the public agency shall ensure that--
(1) The evaluation is conducted in accordance with the procedures
described in Secs. 300.530-300.535; and
(2) The results of the evaluation are used by the child's IEP team
in meeting the requirements of Secs. 300.340-300.350.
(Authority: 20 U.S.C. 1414(a), (b), and (c))
Sec. 300.321 Reevaluations.
Each public agency shall ensure that--
(a) A reevaluation of each child with a disability is conducted in
accordance with Sec. 300.536; and
(b) The results of any reevaluations are addressed by the child's
IEP team under Secs. 300.340-300.349 in reviewing and, as appropriate,
revising the child's IEP.
(Authority: 20 U.S.C. 1414(a)(2))
[[Page 12440]]
Secs. 300.322-300.324 [Reserved]
Individualized Education Programs
Sec. 300.340 Definitions related to IEPs.
(a) Individualized education program. As used in this part, the
term individualized education program or IEP means a written statement
for a child with a disability that is developed, reviewed, and revised
in a meeting in accordance with Secs. 300.341-300.350.
(b) Participating agency. As used in Sec. 300.348, participating
agency means a State or local agency, other than the public agency
responsible for a student's education, that is financially and legally
responsible for providing transition services to the student.
(Authority: 20 U.S.C. 1401(11), 1412(a)(10)(B))
Sec. 300.341 Responsibility of SEA and other public agencies for IEPs.
(a) The SEA shall ensure that each public agency--
(1) Except as provided in Secs. 300.450-300.462, develops and
implements an IEP for each child with a disability served by that
agency; and
(2) Ensures that an IEP is developed and implemented for each
eligible child placed in or referred to a private school or facility by
the public agency.
(b) Paragraph (a) of this section applies to--
(1) The SEA, if it is involved in providing direct services to
children with disabilities, in accordance with Sec. 300.370(a) and
(b)(1); and
(2) Except as provided in Sec. 300.600(d), the other public
agencies described in Sec. 300.2, including LEAs and other State
agencies that provide special education and related services either
directly, by contract, or through other arrangements.
(Authority: 20 U.S.C. 1412(a)(4), (a)(10)(B))
Sec. 300.342 When IEPs must be in effect.
(a) General. At the beginning of each school year, each public
agency shall have an IEP in effect for each child with a disability
within its jurisdiction.
(b) Implementation of IEPs. Each public agency shall ensure that--
(1) An IEP--
(i) Is in effect before special education and related services are
provided to an eligible child under this part; and
(ii) Is implemented as soon as possible following the meetings
described under Sec. 300.343;
(2) The child's IEP is accessible to each regular education
teacher, special education teacher, related service provider, and other
service provider who is responsible for its implementation; and
(3) Each teacher and provider described in paragraph (b)(2) of this
section is informed of--
(i) His or her specific responsibilities related to implementing
the child's IEP; and
(ii) The specific accommodations, modifications, and supports that
must be provided for the child in accordance with the IEP.
(c) IEP or IFSP for children aged 3 through 5. (1) In the case of a
child with a disability aged 3 through 5 (or, at the discretion of the
SEA a 2-year-old child with a disability who will turn age 3 during the
school year), an IFSP that contains the material described in section
636 of the Act, and that is developed in accordance with Secs. 300.341-
300.346 and Secs. 300.349-300.350, may serve as the IEP of the child if
using that plan as the IEP is--
(i) Consistent with State policy; and
(ii) Agreed to by the agency and the child's parents.
(2) In implementing the requirements of paragraph (c)(1) of this
section, the public agency shall--
(i) Provide to the child's parents a detailed explanation of the
differences between an IFSP and an IEP; and
(ii) If the parents choose an IFSP, obtain written informed consent
from the parents.
(d) Effective date for new requirements. All IEPs developed,
reviewed, or revised on or after July 1, 1998 must meet the
requirements of Secs. 300.340-300.350.
(Authority: 20 U.S.C. 1414(d)(2)(A) and (B), Pub. L. 105-17, sec.
201(a)(2)(A), (C)
Sec. 300.343 IEP meetings.
(a) General. Each public agency is responsible for initiating and
conducting meetings for the purpose of developing, reviewing, and
revising the IEP of a child with a disability (or, if consistent with
Sec. 300.342(c), an IFSP).
(b) Initial IEPs; provision of services. (1) Each public agency
shall ensure that within a reasonable period of time following the
agency's receipt of parent consent to an initial evaluation of a
child--
(i) The child is evaluated; and
(ii) If determined eligible under this part, special education and
related services are made available to the child in accordance with an
IEP.
(2) In meeting the requirement in paragraph (b)(1) of this section,
a meeting to develop an IEP for the child must be conducted within 30-
days of a determination that the child needs special education and
related services.
(c) Review and revision of IEPs. Each public agency shall ensure
that the IEP team--
(1) Reviews the child's IEP periodically, but not less than
annually, to determine whether the annual goals for the child are being
achieved; and
(2) Revises the IEP as appropriate to address--
(i) Any lack of expected progress toward the annual goals described
in Sec. 300.347(a), and in the general curriculum, if appropriate;
(ii) The results of any reevaluation conducted under Sec. 300.536;
(iii) Information about the child provided to, or by, the parents,
as described in Sec. 300.533(a)(1);
(iv) The child's anticipated needs; or
(v) Other matters.
(Authority: 20 U.S.C. 1413(a)(1), 1414(d)(4)(A))
Sec. 300.344 IEP team.
(a) General. The public agency shall ensure that the IEP team for
each child with a disability includes--
(1) The parents of the child;
(2) At least one regular education teacher of the child (if the
child is, or may be, participating in the regular education
environment);
(3) At least one special education teacher of the child, or if
appropriate, at least one special education provider of the child;
(4) A representative of the public agency who--
(i) Is qualified to provide, or supervise the provision of,
specially designed instruction to meet the unique needs of children
with disabilities;
(ii) Is knowledgeable about the general curriculum; and
(iii) Is knowledgeable about the availability of resources of the
public agency;
(5) An individual who can interpret the instructional implications
of evaluation results, who may be a member of the team described in
paragraphs (a)(2) through (6) of this section;
(6) At the discretion of the parent or the agency, other
individuals who have knowledge or special expertise regarding the
child, including related services personnel as appropriate; and
(7) If appropriate, the child.
(b) Transition services participants. (1) Under paragraph (a)(7) of
this section, the public agency shall invite a student with a
disability of any age to attend his or her IEP meeting if a purpose of
the meeting will be the consideration of--
(i) The student's transition services needs under
Sec. 300.347(b)(1);
(ii) The needed transition services for the student under
Sec. 300.347(b)(2); or
(iii) Both.
(2) If the student does not attend the IEP meeting, the public
agency shall
[[Page 12441]]
take other steps to ensure that the student's preferences and interests
are considered.
(3)(i) In implementing the requirements of Sec. 300.347(b)(2), the
public agency also shall invite a representative of any other agency
that is likely to be responsible for providing or paying for transition
services.
(ii) If an agency invited to send a representative to a meeting
does not do so, the public agency shall take other steps to obtain
participation of the other agency in the planning of any transition
services.
(c) Determination of knowledge and special expertise. The
determination of the knowledge or special expertise of any individual
described in paragraph (a)(6) of this section shall be made by the
party (parents or public agency) who invited the individual to be a
member of the IEP.
(d) Designating a public agency representative. A public agency may
designate another public agency member of the IEP team to also serve as
the agency representative, if the criteria in paragraph (a)(4) of this
section are satisfied.
(Authority: 20 U.S.C. 1401(30), 1414(d)(1)(A)(7), (B))
Sec. 300.345 Parent participation.
(a) Public agency responsibility--general. Each public agency shall
take steps to ensure that one or both of the parents of a child with a
disability are present at each IEP meeting or are afforded the
opportunity to participate, including--
(1) Notifying parents of the meeting early enough to ensure that
they will have an opportunity to attend; and
(2) Scheduling the meeting at a mutually agreed on time and place.
(b) Information provided to parents. (1) The notice required under
paragraph (a)(1) of this section must--
(i) Indicate the purpose, time, and location of the meeting and who
will be in attendance; and
(ii) 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).
(2) For a student with a disability beginning at age 14, or
younger, if appropriate, the notice must also--
(i) Indicate that a purpose of the meeting will be the development
of a statement of the transition services needs of the student required
in Sec. 300.347(b)(1); and
(ii) Indicate that the agency will invite the student.
(3) For a student with a disability beginning at age 16, or
younger, if appropriate, the notice must--
(i) Indicate that a purpose of the meeting is the consideration of
needed transition services for the student required in
Sec. 300.347(b)(2);
(ii) Indicate that the agency will invite the student; and
(iii) Identify any other agency that will be invited to send a
representative.
(c) Other methods to ensure parent participation. If neither parent
can attend, the public agency shall use other methods to ensure parent
participation, including individual or conference telephone calls.
(d) Conducting an IEP meeting without a parent in attendance. A
meeting may be conducted without a parent in attendance if the public
agency is unable to convince the parents that they should attend. In
this case the public agency must have a record of its attempts to
arrange a mutually agreed on time and place, such as--
(1) Detailed records of telephone calls made or attempted and the
results of those calls;
(2) Copies of correspondence sent to the parents and any responses
received; and
(3) Detailed records of visits made to the parent's home or place
of employment and the results of those visits.
(e) Use of interpreters or other action, as appropriate. The public
agency shall take whatever action is necessary to ensure that the
parent understands the proceedings at the IEP meeting, including
arranging for an interpreter for parents with deafness or whose native
language is other than English.
(f) Parent copy of child's IEP. The public agency shall give the
parent a copy of the child's IEP at no cost to the parent.
(Authority: 20 U.S.C. 1414(d)(1)(B)(i))
Sec. 300.346 Development, review, and revision of IEP.
(a) Development of IEP. (1) General. In developing each child's
IEP, the IEP team, shall consider--
(i) The strengths of the child and the concerns of the parents for
enhancing the education of their child;
(ii) The results of the initial or most recent evaluation of the
child; and
(iii) As appropriate, the results of the child's performance on any
general State or district-wide assessment programs.
(2) Consideration of special factors. The IEP team also shall--
(i) In the case of a child whose behavior impedes his or her
learning or that of others, consider, if appropriate, strategies,
including positive behavioral interventions, strategies, and supports
to address that behavior;
(ii) In the case of a child with limited English proficiency,
consider the language needs of the child as those needs relate to the
child's IEP;
(iii) In the case of a child who is blind or visually impaired,
provide for instruction in Braille and the use of Braille unless the
IEP team determines, after an evaluation of the child's reading and
writing skills, needs, and appropriate reading and writing media
(including an evaluation of the child's future needs for instruction in
Braille or the use of Braille), that instruction in Braille or the use
of Braille is not appropriate for the child;
(iv) Consider the communication needs of the child, and in the case
of a child who is deaf or hard of hearing, consider the child's
language and communication needs, opportunities for direct
communications with peers and professional personnel in the child's
language and communication mode, academic level, and full range of
needs, including opportunities for direct instruction in the child's
language and communication mode; and
(v) Consider whether the child requires assistive technology
devices and services.
(b) Review and Revision of IEP. In conducting a meeting to review,
and, if appropriate, revise a child's IEP, the IEP team shall consider
the factors described in paragraph (a) of this section.
(c) Statement in IEP. If, in considering the special factors
described in paragraphs (a)(1) and (2) of this section, the IEP team
determines that a child needs a particular device or service (including
an intervention, accommodation, or other program modification) in order
for the child to receive FAPE, the IEP team must include a statement to
that effect in the child's IEP.
(d) Requirement with respect to regular education teacher. The
regular education teacher of a child with a disability, as a member of
the IEP team, must, to the extent appropriate, participate in the
development, review, and revision of the child's IEP, including
assisting in the determination of--
(1) Appropriate positive behavioral interventions and strategies
for the child; and
(2) Supplementary aids and services, program modifications or
supports for school personnel that will be provided for the child,
consistent with Sec. 300.347(a)(3).
[[Page 12442]]
(e) Construction. Nothing in this section shall be construed to
require the IEP team to include information under one component of a
child's IEP that is already contained under another component of the
child's IEP.
(Authority: 20 U.S.C. 1414(d)(3) and (4)(B) and (e))
Sec. 300.347 Content of IEP.
(a) General. The IEP for each child with a disability must
include--
(1) A statement of the child's present levels of educational
performance, including--
(i) How the child's disability affects the child's involvement and
progress in the general curriculum (i.e., the same curriculum as for
nondisabled children); or
(ii) For preschool children, as appropriate, how the disability
affects the child's participation in appropriate activities;
(2) A statement of measurable annual goals, including benchmarks or
short-term objectives, related to--
(i) Meeting the child's needs that result from the child's
disability to enable the child to be involved in and progress in the
general curriculum (i.e., the same curriculum as for nondisabled
children), or for preschool children, as appropriate, to participate in
appropriate activities; and
(ii) Meeting each of the child's other educational needs that
result from the child's disability;
(3) A statement of the special education and related services and
supplementary aids and services to be provided to the child, or on
behalf of the child, and a statement of the program modifications or
supports for school personnel that will be provided for the child--
(i) To advance appropriately toward attaining the annual goals;
(ii) To be involved and progress in the general curriculum in
accordance with paragraph (a)(1) of this section and to participate in
extracurricular and other nonacademic activities; and
(iii) To be educated and participate with other children with
disabilities and nondisabled children in the activities described in
this section;
(4) An explanation of the extent, if any, to which the child will
not participate with nondisabled children in the regular class and in
the activities described in paragraph (a)(3) of this section;
(5)(i) A statement of any individual modifications in the
administration of State or district-wide assessments of student
achievement that are needed in order for the child to participate in
the assessment; and
(ii) If the IEP team determines that the child will not participate
in a particular State or district-wide assessment of student
achievement (or part of an assessment), a statement of--
(A) Why that assessment is not appropriate for the child; and
(B) How the child will be assessed;
(6) The projected date for the beginning of the services and
modifications described in paragraph (a)(3) of this section, and the
anticipated frequency, location, and duration of those services and
modifications; and
(7) A statement of--
(i) How the child's progress toward the annual goals described in
paragraph (a)(2) of this section will be measured; and
(ii) How the child's parents will be regularly informed (through
such means as periodic report cards), at least as often as parents are
informed of their nondisabled children's progress, of--
(A) Their child's progress toward the annual goals; and
(B) The extent to which that progress is sufficient to enable the
child to achieve the goals by the end of the year.
(b) Transition services. The IEP must include--
(1) For each student with a disability beginning at age 14 (or
younger, if determined appropriate by the IEP team), and updated
annually, a statement of the transition service needs of the student
under the applicable components of the student's IEP that focuses on
the student's courses of study (such as participation in advanced-
placement courses or a vocational education program); and
(2) For each student beginning at age 16 (or younger, if determined
appropriate by the IEP team), a statement of needed transition services
for the student, including, if appropriate, a statement of the
interagency responsibilities or any needed linkages.
(c) Transfer of rights. In a State that transfers rights at the age
majority, beginning at least one year before a student reaches the age
of majority under State law, the student's IEP must include a statement
that the student has been informed of his or her rights under Part B of
the Act, if any, that will transfer to the student on reaching the age
of majority, consistent with Sec. 300.517.
(d) Students with disabilities convicted as adults and incarcerated
in adult prisons. Special rules concerning the content of IEPs for
students with disabilities convicted as adults and incarcerated in
adult prisons are contained in Sec. 300.311(b) and (c).
(Authority: 20 U.S.C. 1414(d)(1)(A) and (d)(6)(A)(ii))
Sec. 300.348 Agency responsibilities for transition services.
(a) If a participating agency, other than the public agency, fails
to provide the transition services described in the IEP in accordance
with Sec. 300.347(b)(1), the public agency shall reconvene the IEP team
to identify alternative strategies to meet the transition objectives
for the student set out in the IEP.
(b) Nothing in this part relieves any participating agency,
including a State vocational rehabilitation agency, of the
responsibility to provide or pay for any transition service that the
agency would otherwise provide to students with disabilities who meet
the eligibility criteria of that agency.
(Authority: 20 U.S.C. 1414(d)(5); 1414(d)(1)(A)(vii))
Sec. 300.349 Private school placements by public agencies.
(a) Developing IEPs. (1) Before a public agency places a child with
a disability in, or refers a child to, a private school or facility,
the agency shall initiate and conduct a meeting to develop an IEP for
the child in accordance with Secs. 300.346 and 300.347.
(2) The agency shall ensure that a representative of the private
school or facility attends the meeting. If the representative cannot
attend, the agency shall use other methods to ensure participation by
the private school or facility, including individual or conference
telephone calls.
(b) Reviewing and revising IEPs. (1) After a child with a
disability enters a private school or facility, any meetings to review
and revise the child's IEP may be initiated and conducted by the
private school or facility at the discretion of the public agency.
(2) If the private school or facility initiates and conducts these
meetings, the public agency shall ensure that the parents and an agency
representative--
(i) Are involved in any decision about the child's IEP; and
(ii) Agree to any proposed changes in the IEP before those changes
are implemented.
(c) Responsibility. Even if a private school or facility implements
a child's IEP, responsibility for compliance with this part remains
with the public agency and the SEA.
(Authority: 20 U.S.C. 1412(a)(10)(B))
Sec. 300.350 IEP--accountability.
(a) Provision of services. Subject to paragraph (b) of this
section, each public agency must--
[[Page 12443]]
(1) Provide special education and related services to a child with
a disability in accordance with the child's IEP; and
(2) Make a good faith effort to assist the child to achieve the
goals and objectives or benchmarks listed in the IEP.
(b) Accountability. Part B of the Act does not require that any
agency, teacher, or other person be held accountable if a child does
not achieve the growth projected in the annual goals and benchmarks or
objectives. However, the Act does not prohibit a State or public agency
from establishing its own accountability systems regarding teacher,
school, or agency performance.
(c) Construction--parent rights. Nothing in this section limits a
parent's right to ask for revisions of the child's IEP or to invoke due
process procedures if the parent feels that the efforts required in
paragraph (a) of this section are not being made.
(Authority: 20 U.S.C. 1414(d)); Cong. Rec. at H7152 (daily ed., July
21, 1975))
Direct Services by the Sea
Sec. 300.360 Use of LEA allocation for direct services.
(a) General. An SEA shall use the payments that would otherwise
have been available to an LEA or to a State agency to provide special
education and related services directly to children with disabilities
residing in the area served by that local agency, or for whom that
State agency is responsible, if the SEA determines that the LEA or
State agency--
(1) Has not provided the information needed to establish the
eligibility of the agency under Part B of the Act;
(2) Is unable to establish and maintain programs of FAPE that meet
the requirements of this part;
(3) Is unable or unwilling to be consolidated with one or more LEAs
in order to establish and maintain the programs; or
(4) Has one or more children with disabilities who can best be
served by a regional or State program or service-delivery system
designed to meet the needs of these children.
(b) SEA responsibility if an LEA does not apply for Part B funds.
(1) If an LEA elects not to apply for its Part B allotment, the SEA
must use those funds to ensure that FAPE is available to all eligible
children residing in the jurisdiction of the LEA.
(2)(i) If the local allotment is not sufficient to meet the purpose
described in paragraph (b)(1) of this section, the SEA must ensure
compliance with Secs. 300.121(a) and 300.300(a).
(ii) Consistent with Sec. 300.301(a), the [State; SEA] may use
whatever funding sources are available in the State to implement
paragraph (b)(2)(i) of this section.
(c) SEA administrative procedures. (1) In meeting the requirements
in paragraph (a) of this section, the SEA may provide special education
and related services directly, by contract, or through other
arrangements.
(2) The excess cost requirements of Secs. 300.184 and 300.185 do
not apply to the SEA.
(Authority: 20 U.S.C. 1413(h)(1))
Sec. 300.361 Nature and location of services.
The SEA may provide special education and related services under
Sec. 300.360(a) in the manner and at the location it considers
appropriate (including regional and State centers). However, the manner
in which the education and services are provided must be consistent
with the requirements of this part (including the LRE provisions of
Secs. 300.550-300.556).
(Authority: 20 U.S.C. 1413(h)(2))
Secs. 300.362-300.369 [Reserved]
Sec. 300.370 Use of SEA allocations.
(a) Each State shall use any funds it retains under Sec. 300.602
and does not use for administration under Sec. 300.620 for any of the
following:
(1) Support and direct services, including technical assistance and
personnel development and training.
(2) Administrative costs of monitoring and complaint investigation,
but only to the extent that those costs exceed the costs incurred for
those activities during fiscal year 1985.
(3) To establish and implement the mediation process required by
Sec. 300.506, including providing for the costs of mediators and
support personnel.
(4) To assist LEAs in meeting personnel shortages.
(5) To develop a State Improvement Plan under subpart 1 of Part D
of the Act.
(6) Activities at the State and local levels to meet the
performance goals established by the State under Sec. 300.137 and to
support implementation of the State Improvement Plan under subpart 1 of
Part D of the Act if the State receives funds under that subpart.
(7) To supplement other amounts used to develop and implement a
Statewide coordinated services system designed to improve results for
children and families, including children with disabilities and their
families, but not to exceed one percent of the amount received by the
State under section 611 of the Act. This system must be coordinated
with and, to the extent appropriate, build on the system of coordinated
services developed by the State under Part C of the Act.
(8) For subgrants to LEAs for the purposes described in
Sec. 300.622 (local capacity building).
(b) For the purposes of paragraph (a) of this section--
(1) Direct services means services provided to a child with a
disability by the State directly, by contract, or through other
arrangements; and
(2) Support services includes implementing the comprehensive system
of personnel development under Secs. 300.380-300.382, recruitment and
training of mediators, hearing officers, and surrogate parents, and
public information and parent training activities relating to FAPE for
children with disabilities.
(c) Of the funds an SEA retains under paragraph (a) of this
section, the SEA may use the funds directly, or distribute them to LEAs
on a competitive, targeted, or formula basis.
(Authority: 20 U.S.C. 1411(f)(3))
Sec. 300.371 [Reserved]
Sec. 300.372 Nonapplicability of requirements that prohibit
commingling and supplanting of funds.
A State may use funds it retains under Sec. 300.602 without regard
to--
(a) The prohibition on commingling of funds in Sec. 300.152; and
(b) The prohibition on supplanting other funds in Sec. 300.153.
(Authority: 20 U.S.C. 1411(f)(1)(C))
Comprehensive System of Personnel Development (CSPD)
Sec. 300.380 General CSPD requirements.
(a) Each State shall develop and implement a comprehensive system
of personnel development that--
(1) Is consistent with the purposes of this part and with section
635(a)(8) of the Act;
(2) Is designed to ensure an adequate supply of qualified special
education, regular education, and related services personnel;
(3) Meets the requirements of Secs. 300.381 and 300.382; and
(4) Is updated at least every five years.
(b) A State that has a State improvement grant has met the
requirements of paragraph (a) of this section.
(Authority: 20 U.S.C. 1412(a)(14))
Sec. 300.381 Adequate supply of qualified personnel.
Each State must include, at least, an analysis of State and local
needs for
[[Page 12444]]
professional development for personnel to serve children with
disabilities that includes, at a minimum--
(a) The number of personnel providing special education and related
services; and
(b) Relevant information on current and anticipated personnel
vacancies and shortages (including the number of individuals described
in paragraph (a) of this section with temporary certification), and on
the extent of certification or retraining necessary to eliminate these
shortages, that is based, to the maximum extent possible, on existing
assessments of personnel needs.
(Authority: 20 U.S.C. 1453(b)(2)(B))
Sec. 300.382 Improvement strategies.
Each State must describe the strategies the State will use to
address the needs identified under Sec. 300.381. These strategies must
include how the State will address the identified needs for in-service
and pre-service preparation to ensure that all personnel who work with
children with disabilities (including both professional and
paraprofessional personnel who provide special education, general
education, related services, or early intervention services) have the
skills and knowledge necessary to meet the needs of children with
disabilities. The plan must include a description of how the State
will--
(a) Prepare general and special education personnel with the
content knowledge and collaborative skills needed to meet the needs of
children with disabilities including how the State will work with other
States on common certification criteria;
(b) Prepare professionals and paraprofessionals in the area of
early intervention with the content knowledge and collaborative skills
needed to meet the needs of infants and toddlers with disabilities;
(c) Work with institutions of higher education and other entities
that (on both a pre-service and an in-service basis) prepare personnel
who work with children with disabilities to ensure that those
institutions and entities develop the capacity to support quality
professional development programs that meet State and local needs;
(d) Work to develop collaborative agreements with other States for
the joint support and development of programs to prepare personnel for
which there is not sufficient demand within a single State to justify
support or development of a program of preparation;
(e) Work in collaboration with other States, particularly
neighboring States, to address the lack of uniformity and reciprocity
in credentialing of teachers and other personnel;
(f) Enhance the ability of teachers and others to use strategies,
such as behavioral interventions, to address the conduct of children
with disabilities that impedes the learning of children with
disabilities and others;
(g) Acquire and disseminate, to teachers, administrators, school
board members, and related services personnel, significant knowledge
derived from educational research and other sources, and how the State
will, if appropriate, adopt promising practices, materials, and
technology;
(h) Recruit, prepare, and retain qualified personnel, including
personnel with disabilities and personnel from groups that are under-
represented in the fields of regular education, special education, and
related services;
(i) Insure that the plan is integrated, to the maximum extent
possible, with other professional development plans and activities,
including plans and activities developed and carried out under other
Federal and State laws that address personnel recruitment and training;
and
(j) Provide for the joint training of parents and special
education, related services, and general education personnel.
(Authority: 20 U.S.C. 1453 (c)(3)(D))
Secs. 300.383-300.387 [Reserved]
Subpart D--Children in Private Schools
Children With Disabilities in Private Schools Placed or Referred by
Public Agencies
Sec. 300.400 Applicability of Secs. 300.400-300.402.
Sections 300.401-300.402 apply only to children with disabilities
who are or have been placed in or referred to a private school or
facility by a public agency as a means of providing special education
and related services.
(Authority: 20 U.S.C. 1412(a)(10)(B))
Sec. 300.401 Responsibility of State educational agency.
Each SEA shall ensure that a child with a disability who is placed
in or referred to a private school or facility by a public agency--
(a) Is provided special education and related services--
(1) In conformance with an IEP that meets the requirements of
Secs. 300.340-300.350; and
(2) At no cost to the parents;
(b) Is provided an education that meets the standards that apply to
education provided by the SEA and LEAs (including the requirements of
this part); and
(c) Has all of the rights of a child with a disability who is
served by a public agency.
(Authority: 20 U.S.C. 1412(a)(10)(B))
Sec. 300.402 Implementation by State educational agency.
In implementing Sec. 300.401, the SEA shall--
(a) Monitor compliance through procedures such as written reports,
on-site visits, and parent questionnaires;
(b) Disseminate copies of applicable standards to each private
school and facility to which a public agency has referred or placed a
child with a disability; and
(c) Provide an opportunity for those private schools and facilities
to participate in the development and revision of State standards that
apply to them.
(Authority: 20 U.S.C. 1412(a)(10)(B))
Children With Disabilities Enrolled by Their Parents in Private
Schools When FAPE Is at Issue
Sec. 300.403 Placement of children by parents if FAPE is at issue.
(a) General. This part does not require an LEA to pay for the cost
of education, including special education and related services, of a
child with a disability at a private school or facility if that agency
made FAPE available to the child and the parents elected to place the
child in a private school or facility. However, the public agency shall
include that child in the population whose needs are addressed
consistent with Secs. 300.450-300.462.
(b) Disagreements about FAPE. Disagreements between a parent and a
public agency regarding the availability of a program appropriate for
the child, and the question of financial responsibility, are subject to
the due process procedures of Secs. 300.500-300.517.
(c) Reimbursement for private school placement. If the parents of a
child with a disability, who previously received special education and
related services under the authority of a public agency, enroll the
child in a private preschool, elementary, or secondary school without
the consent of or referral by the public agency, a court or a hearing
officer may require the agency to reimburse the parents for the cost of
that enrollment if the court or hearing officer finds that the agency
had not made FAPE available to the child in a timely manner prior to
that enrollment and that the private placement is appropriate. A
[[Page 12445]]
parental placement may be found to be appropriate by a hearing officer
or a court even if it does not meet the State standards that apply to
education provided by the SEA and LEAs.
(d) Limitation on reimbursement. The cost of reimbursement
described in paragraph (c) of this section may be reduced or denied--
(1) If--
(i) At the most recent IEP meeting that the parents attended prior
to removal of the child from the public school, the parents did not
inform the IEP team that they were rejecting the placement proposed by
the public agency to provide FAPE to their child, including stating
their concerns and their intent to enroll their child in a private
school at public expense; or
(ii) At least ten (10) business days (including any holidays that
occur on a business day) prior to the removal of the child from the
public school, the parents did not give written notice to the public
agency of the information described in paragraph (d)(1)(i) of this
section;
(2) If, prior to the parents' removal of the child from the public
school, the public agency informed the parents, through the notice
requirements described in Sec. 300.503(a)(1), of its intent to evaluate
the child (including a statement of the purpose of the evaluation that
was appropriate and reasonable), but the parents did not make the child
available for the evaluation; or
(3) Upon a judicial finding of unreasonableness with respect to
actions taken by the parents.
(e) Exception. Notwithstanding the notice requirement in paragraph
(d)(1) of this section, the cost of reimbursement may not be reduced or
denied for failure to provide the notice if--
(1) The parent is illiterate and cannot write in English;
(2) Compliance with paragraph (d)(1) of this section would likely
result in physical or serious emotional harm to the child;
(3) The school prevented the parent from providing the notice; or
(4) The parents had not received notice, pursuant to section 615 of
the Act, of the notice requirement in paragraph (d)(1) of this section.
(Authority: 20 U.S.C. 1412(a)(10)(C))
Children With Disabilities Enrolled by Their Parents in Private
Schools
Sec. 300.450 Definition of ``private school children with
disabilities.''
As used in this part, private school children with disabilities
means children with disabilities enrolled by their parents in private
schools or facilities other than children with disabilities covered
under Secs. 300.400-300.402.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.451 Child find for private school children with disabilities.
(a) Each LEA shall locate, identify, and evaluate all private
school children with disabilities, including religious-school children
residing in the jurisdiction of the LEA, in accordance with
Secs. 300.125 and 300.220. The activities undertaken to carry out this
responsibility for private school children with disabilities must be
comparable to activities undertaken for children with disabilities in
public schools.
(b) Each LEA shall consult with appropriate representatives of
private school children with disabilities on how to carry out the
activities described in paragraph (a) of this section.
(Authority: 20 U.S.C. 1412(a)(10)(A)(ii))
Sec. 300.452 Provision of services--basic requirement.
(a) General. To the extent consistent with their number and
location in the State, provision must be made for the participation of
private school children with disabilities in the program assisted or
carried out under Part B of the Act by providing them with special
education and related services in accordance with Secs. 300.453-
300.462.
(b) SEA Responsibility--services plan. Each SEA shall ensure that,
in accordance with paragraph (a) of this section and Secs. 300.454-
300.456, 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.
(Authority: 20 U.S.C. 1412(a)(10)(A)(i))
Sec. 300.453 Expenditures.
(a) Formula. To meet the requirement of Sec. 300.452(a), each LEA
must spend on providing special education and related services to
private school children with disabilities--
(1) For children aged 3 through 21, an amount that is the same
proportion of the LEA's total subgrant under section 611(g) of the Act
as the number of private school children with disabilities aged 3
through 21 residing in its jurisdiction is to the total number of
children with disabilities in its jurisdiction aged 3 through 21; and
(2) For children aged 3 through 5, an amount that is the same
proportion of the LEA's total subgrant under section 619(g) of the Act
as the number of private school children with disabilities aged 3
through 5 residing in its jurisdiction is to the total number of
children with disabilities in its jurisdiction aged 3 through 5.
(b) Child count. (1) Each LEA shall--
(i) Consult with representatives of private school children in
deciding how to conduct the annual count of the number of private
school children with disabilities; and
(ii) Ensure that the count is conducted on December 1 or the last
Friday of October of each year.
(2) The child count must be used to determine the amount that the
LEA must spend on providing special education and related services to
private school children with disabilities in the next subsequent fiscal
year.
(c) Expenditures for child find may not be considered. Expenditures
for child find activities described in Sec. 300.451 may not be
considered in determining whether the LEA has met the requirements of
paragraph (a) of this section.
(d) Additional services permissible. State and local educational
agencies are not prohibited from providing services to private school
children with disabilities in excess of those required by this part,
consistent with State law or local policy.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.454 Services determined.
(a) No individual right to special education and related services.
(1) No private school child with a disability has an individual right
to receive some or all of the special education and related services
that the child would receive if enrolled in a public school.
(2) Decisions about the services that will be provided to private
school children with disabilities under Secs. 300.452-300.462, must be
made in accordance with paragraphs (b), and (c) of this section.
(b) Consultation with representatives of private school children
with disabilities. (1) General. Each LEA shall consult, in a timely and
meaningful way, with appropriate representatives of private school
children with disabilities in light of the funding under Sec. 300.453,
the number of private school children with disabilities, the needs of
private school children with disabilities, and their location to
decide--
(i) Which children will receive services under Sec. 300.452;
(ii) What services will be provided;
(iii) How and where the services will be provided; and
(iv) How the services provided will be evaluated.
[[Page 12446]]
(2) Genuine opportunity. Each LEA shall give appropriate
representatives of private school children with disabilities a genuine
opportunity to express their views regarding each matter that is
subject to the consultation requirements in this section.
(3) Timing. The consultation required by paragraph (b)(1) of this
section must occur before the LEA makes any decision that affects the
opportunities of private school children with disabilities to
participate in services under Secs. 300.452-300.462.
(4) Decisions. The LEA shall make the final decisions with respect
to the services to be provided to eligible private school children.
(c) Services plan for each child served under Secs. 300.450-
300.462. If a child with a disability is enrolled in a religious or
other private school and will receive special education or related
services from an LEA, the LEA shall--
(1) Initiate and conduct meetings to develop, review, and revise a
services plan for the child, in accordance with Sec. 300.455(b); and
(2) Ensure that a representative of the religious or other private
school attends each meeting. If the representative cannot attend, the
LEA shall use other methods to ensure participation by the private
school, including individual or conference telephone calls.
(Authority: 1412(a)(10)(A))
Sec. 300.455 Services provided.
(a) General. (1) The services provided to private school children
with disabilities must be provided by personnel meeting the same
standards as personnel providing services in the public schools.
(2) Private school children with disabilities may receive a
different amount of services than children with disabilities in public
schools.
(3) No private school child with a disability is entitled to any
service or to any amount of a service the child would receive if
enrolled in a public school.
(b) Services provided in accordance with a services plan. (1) Each
private school child with a disability who has been designated to
receive services under Sec. 300.452 must have a services plan that
describes the specific special education and related services that the
LEA will provide to the child in light of the services that the LEA has
determined, through the process described in Secs. 300.453-300.454, it
will make available to private school children with disabilities.
(2) The services plan must, to the extent appropriate--
(i) Meet the requirements of Sec. 300.347, with respect to the
services provided; and
(ii) Be developed, reviewed, and revised consistent with
Secs. 300.342-300.346.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.456 Location of services; transportation.
(a) On-site. Services provided to private school children with
disabilities may be provided on-site at a child's private school,
including a religious school, to the extent consistent with law.
(b) Transportation. (1) General. (i) If necessary for the child to
benefit from or participate in the services provided under this part, a
private school child with a disability must be provided
transportation--
(A) From the child's school or the child's home to a site other
than the private school; and
(B) From the service site to the private school, or to the child's
home, depending on the timing of the services.
(ii) LEAs are not required to provide transportation from the
child's home to the private school.
(2) Cost of transportation. The cost of the transportation
described in paragraph (b)(1)(i) of this section may be included in
calculating whether the LEA has met the requirement of Sec. 300.453.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.457 Complaints.
(a) Due process inapplicable. The procedures in Secs. 300.504-
300.515 do not apply to complaints that an LEA has failed to meet the
requirements of Secs. 300.452-300.462, including the provision of
services indicated on the child's services plan.
(b) Due process applicable. The procedures in Secs. 300.504-300.515
do apply to complaints that an LEA has failed to meet the requirements
of Sec. 300.451, including the requirements of Secs. 300.530-300.543.
(c) State complaints. Complaints that an SEA or LEA has failed to
meet the requirements of Secs. 300.451-300.462 may be filed under the
procedures in Secs. 300.660-300.662.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.458 Separate classes prohibited.
An LEA may not use funds available under section 611 or 619 of the
Act for classes that are organized separately on the basis of school
enrollment or religion of the students if--
(a) The classes are at the same site; and
(b) The classes include students enrolled in public schools and
students enrolled in private schools.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.459 Requirement that funds not benefit a private school.
(a) An LEA may not use funds provided under section 611 or 619 of
the Act to finance the existing level of instruction in a private
school or to otherwise benefit the private school.
(b) The LEA shall use funds provided under Part B of the Act to
meet the special education and related services needs of students
enrolled in private schools, but not for--
(1) The needs of a private school; or
(2) The general needs of the students enrolled in the private
school.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.460 Use of public school personnel.
An LEA may use funds available under sections 611 and 619 of the
Act to make public school personnel available in other than public
facilities--
(a) To the extent necessary to provide services under
Secs. 300.450-300.462 for private school children with disabilities;
and
(b) If those services are not normally provided by the private
school.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.461 Use of private school personnel.
An LEA may use funds available under section 611 or 619 of the Act
to pay for the services of an employee of a private school to provide
services under Secs. 300.450-300.462 if--
(a) The employee performs the services outside of his or her
regular hours of duty; and
(b) The employee performs the services under public supervision and
control.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.462 Requirements concerning property, equipment, and supplies
for the benefit of private school children with disabilities.
(a) A public agency must keep title to and exercise continuing
administrative control of all property, equipment, and supplies that
the public agency acquires with funds under section 611 or 619 of the
Act for the benefit of private school children with disabilities.
(b) The public agency may place equipment and supplies in a private
school for the period of time needed for the program.
(c) The public agency shall ensure that the equipment and supplies
placed in a private school--
[[Page 12447]]
(1) Are used only for Part B purposes; and
(2) Can be removed from the private school without remodeling the
private school facility.
(d) The public agency shall remove equipment and supplies from a
private school if--
(1) The equipment and supplies are no longer needed for Part B
purposes; or
(2) Removal is necessary to avoid unauthorized use of the equipment
and supplies for other than Part B purposes.
(e) No funds under Part B of the Act may be used for repairs, minor
remodeling, or construction of private school facilities.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Procedures for By-Pass
Sec. 300.480 By-pass--general.
(a) The Secretary implements a by-pass if an SEA is, and was on
December 2, 1983, prohibited by law from providing for the
participation of private school children with disabilities in the
program assisted or carried out under Part B of the Act, as required by
section 612(a)(10)(A) of the Act and by Secs. 300.452-300.462.
(b) The Secretary waives the requirement of section 612(a)(10)(A)
of the Act and of Secs. 300.452-300.462 if the Secretary implements a
by-pass.
(Authority: 20 U.S.C. 1412(f)(1))
Sec. 300.481 Provisions for services under a by-pass.
(a) Before implementing a by-pass, the Secretary consults with
appropriate public and private school officials, including SEA
officials, in the affected State to consider matters such as--
(1) The prohibition imposed by State law that results in the need
for a by-pass;
(2) The scope and nature of the services required by private school
children with disabilities in the State, and the number of children to
be served under the by-pass; and
(3) The establishment of policies and procedures to ensure that
private school children with disabilities receive services consistent
with the requirements of section 612(a)(10)(A) of the Act and
Secs. 300.452-300.462.
(b) After determining that a by-pass is required, the Secretary
arranges for the provision of services to private school children with
disabilities in the State in a manner consistent with the requirements
of section 612(a)(10)(A) of the Act and Secs. 300.452-300.462 by
providing services through one or more agreements with appropriate
parties.
(c) For any fiscal year that a by-pass is implemented, the
Secretary determines the maximum amount to be paid to the providers of
services by multiplying--
(1) A per child amount that may not exceed the amount per child
provided by the Secretary under Part B of the Act for all children with
disabilities in the State for the preceding fiscal year; by
(2) The number of private school children with disabilities (as
defined by Secs. 300.7(a) and 300.450) in the State, as determined by
the Secretary on the basis of the most recent satisfactory data
available, which may include an estimate of the number of those
children with disabilities.
(d) The Secretary deducts from the State's allocation under Part B
of the Act the amount the Secretary determines is necessary to
implement a by-pass and pays that amount to the provider of services.
The Secretary may withhold this amount from the State's allocation
pending final resolution of any investigation or complaint that could
result in a determination that a by-pass must be implemented.
(Authority: 20 U.S.C. 1412(f)(2))
Sec. 300.482 Notice of intent to implement a by-pass.
(a) Before taking any final action to implement a by-pass, the
Secretary provides the affected SEA with written notice.
(b) In the written notice, the Secretary--
(1) States the reasons for the proposed by-pass in sufficient
detail to allow the SEA to respond; and
(2) Advises the SEA that it has a specific period of time (at least
45 days) from receipt of the written notice to submit written
objections to the proposed by-pass and that it may request in writing
the opportunity for a hearing to show cause why a by-pass should not be
implemented.
(c) The Secretary sends the notice to the SEA by certified mail
with return receipt requested.
(Authority: 20 U.S.C. 1412(f)(3)(A))
Sec. 300.483 Request to show cause.
An SEA seeking an opportunity to show cause why a by-pass should
not be implemented shall submit a written request for a show cause
hearing to the Secretary.
(Authority: 20 U.S.C. 1412(f)(3))
Sec. 300.484 Show cause hearing.
(a) If a show cause hearing is requested, the Secretary--
(1) Notifies the SEA and other appropriate public and private
school officials of the time and place for the hearing; and
(2) Designates a person to conduct the show cause hearing. The
designee must not have had any responsibility for the matter brought
for a hearing.
(b) At the show cause hearing, the designee considers matters such
as--
(1) The necessity for implementing a by-pass;
(2) Possible factual errors in the written notice of intent to
implement a by-pass; and
(3) The objections raised by public and private school
representatives.
(c) The designee may regulate the course of the proceedings and the
conduct of parties during the pendency of the proceedings. The designee
takes all steps necessary to conduct a fair and impartial proceeding,
to avoid delay, and to maintain order.
(d) The designee may interpret applicable statutes and regulations,
but may not waive them or rule on their validity.
(e) The designee arranges for the preparation, retention, and, if
appropriate, dissemination of the record of the hearing.
(Authority: 20 U.S.C. 1412(f)(3))
Sec. 300.485 Decision.
(a) The designee who conducts the show cause hearing--
(1) Issues a written decision that includes a statement of
findings; and
(2) Submits a copy of the decision to the Secretary and sends a
copy to each party by certified mail with return receipt requested.
(b) Each party may submit comments and recommendations on the
designee's decision to the Secretary within 15 days of the date the
party receives the designee's decision.
(c) The Secretary adopts, reverses, or modifies the designee's
decision and notifies the SEA of the Secretary's final action. That
notice is sent by certified mail with return receipt requested.
(Authority: 20 U.S.C. 1412(f)(3))
Sec. 300.486 Filing requirements.
(a) Any written submission under Secs. 300.482-300.485 must be
filed by hand-delivery, by mail, or by facsimile transmission. The
Secretary discourages the use of facsimile transmission for documents
longer than five pages.
(b) The filing date under paragraph (a) of this section is the date
the document is--
(1) Hand-delivered;
(2) Mailed; or
(3) Sent by facsimile transmission.
(c) A party filing by facsimile transmission is responsible for
confirming that a complete and legible copy of the document was
received by the Department.
[[Page 12448]]
(d) If a document is filed by facsimile transmission, the Secretary
or the hearing officer, as applicable, may require the filing of a
follow-up hard copy by hand-delivery or by mail within a reasonable
period of time.
(e) If agreed upon by the parties, service of a document may be
made upon the other party by facsimile transmission.
(Authority: 20 U.S.C. 1412(f)(3))
Sec. 300.487 Judicial review.
If dissatisfied with the Secretary's final action, the SEA may,
within 60 days after notice of that action, file a petition for review
with the United States Court of Appeals for the circuit in which the
State is located. The procedures for judicial review are described in
section 612(f)(3)(B)-(D) of the Act.
(Authority: 20 U.S.C. 1412(f)(3)(B)-(D))
Subpart E--Procedural Safeguards
Due Process Procedures for Parents and Children
Sec. 300.500 General responsibility of public agencies; definitions.
(a) Responsibility of SEA and other public agencies. Each SEA shall
ensure that each public agency establishes, maintains, and implements
procedural safeguards that meet the requirements of Secs. 300.500-
300.529.
(b) Definitions of ``consent,'' ``evaluation,'' and ``personally
identifiable.'' As used in this part --
(1) Consent means that --
(i) The parent has been fully informed of all information relevant
to the activity for which consent is sought, in his or her native
language, or other mode of communication;
(ii) The parent understands and agrees in writing to the carrying
out of the activity for which his or her consent is sought, and the
consent describes that activity and lists the records (if any) that
will be released and to whom; and
(iii)(A) The parent understands that the granting of consent is
voluntary on the part of the parent and may be revoked at anytime.
(B) If a parent revokes consent, that revocation is not retroactive
(i.e., it does not negate an action that has occurred after the consent
was given and before the consent was revoked).
(2) Evaluation means procedures used in accordance with
Secs. 300.530-300.536 to determine whether a child has a disability and
the nature and extent of the special education and related services
that the child needs; and
(3) Personally identifiable means that information includes--
(i) The name of the child, the child's parent, or other family
member;
(ii) The address of the child;
(iii) A personal identifier, such as the child's social security
number or student number; or
(iv) A list of personal characteristics or other information that
would make it possible to identify the child with reasonable certainty.
(Authority: 20 U.S.C. 1415(a))
Sec. 300.501 Opportunity to examine records; parent participation in
meetings.
(a) General. The parents of a child with a disability must be
afforded, in accordance with the procedures of Secs. 300.562-300.569,
an opportunity to--
(1) Inspect and review all education records with respect to--
(i) The identification, evaluation, and educational placement of
the child; and
(ii) The provision of FAPE to the child; and
(2) Participate in meetings with respect to --
(i) The identification, evaluation, and educational placement of
the child; and
(ii) The provision of FAPE to the child.
(b) Parent participation in meetings. (1) Each public agency shall
provide notice consistent with Sec. 300.345(a)(1) and (b)(1) to ensure
that parents of children with disabilities have the opportunity to
participate in meetings described in paragraph (a)(2) of this section.
(2) A meeting does not include informal or unscheduled
conversations involving public agency personnel and conversations on
issues such as teaching methodology, lesson plans, or coordination of
service provision if those issues are not addressed in the child's IEP.
A meeting also does not include preparatory activities that public
agency personnel engage in to develop a proposal or response to a
parent proposal that will be discussed at a later meeting.
(c) Parent involvement in placement decisions. (1) Each public
agency shall ensure that the parents of each child with a disability
are members of any group that makes decisions on the educational
placement of their child.
(2) In implementing the requirements of paragraph (c)(1) of this
section, the public agency shall use procedures consistent with the
procedures described in Sec. 300.345(a) through (b)(1).
(3) If neither parent can participate in a meeting in which a
decision is to be made relating to the educational placement of their
child, the public agency shall use other methods to ensure their
participation, including individual or conference telephone calls, or
video conferencing.
(4) A placement decision may be made by a group without the
involvement of the parents, if the public agency is unable to obtain
the parents' participation in the decision. In this case, the public
agency must have a record of its attempt to ensure their involvement,
including information that is consistent with the requirements of
Sec. 300.345(d).
(5) The public agency shall make reasonable efforts to ensure that
the parents understand, and are able to participate in, any group
discussions relating to the educational placement of their child,
including arranging for an interpreter for parents with deafness, or
whose native language is other than English.
(Authority: 20 U.S.C. 1414(f), 1415(b)(1))
Sec. 300.502 Independent educational evaluation.
(a) General. (1) The parents of a child with a disability have the
right under this part to obtain an independent educational evaluation
of the child, subject to paragraphs (b) through (e) of this section.
(2) Each public agency shall provide to parents, upon request for
an independent educational evaluation, information about where an
independent educational evaluation may be obtained, and the agency
criteria applicable for independent educational evaluations as set
forth in paragraph (e) of this section.
(3) For the purposes of this part--
(i) Independent educational evaluation means an evaluation
conducted by a qualified examiner who is not employed by the public
agency responsible for the education of the child in question; and
(ii) Public expense means that the public agency either pays for
the full cost of the evaluation or ensures that the evaluation is
otherwise provided at no cost to the parent, consistent with
Sec. 300.301.
(b) Parent right to evaluation at public expense. (1) A parent has
the right to an independent educational evaluation at public expense if
the parent disagrees with an evaluation obtained by the public agency.
(2) If a parent requests an independent educational evaluation at
public expense, the public agency must, without unnecessary delay,
either--
(i) Initiate a hearing under Sec. 300.507 to show that its
evaluation is appropriate; or
(ii) Ensure that an independent educational evaluation is provided
at public expense, unless the agency
[[Page 12449]]
demonstrates in a hearing under Sec. 300.507 that the evaluation
obtained by the parent did not meet agency criteria.
(3) If the public agency initiates a hearing and the final decision
is that the agency's evaluation is appropriate, the parent still has
the right to an independent educational evaluation, but not at public
expense.
(4) If a parent requests an independent educational evaluation, the
public agency may ask for the parent's reason why he or she objects to
the public evaluation. However, the explanation by the parent may not
be required and the public agency may not unreasonably delay either
providing the independent educational evaluation at public expense or
initiating a due process hearing to defend the public evaluation.
(c) Parent-initiated evaluations. If the parent obtains an
independent educational evaluation at private expense, the results of
the evaluation--
(1) Must be considered by the public agency, if it meets agency
criteria, in any decision made with respect to the provision of FAPE to
the child; and
(2) May be presented as evidence at a hearing under this subpart
regarding that child.
(d) Requests for evaluations by hearing officers. If a hearing
officer requests an independent educational evaluation as part of a
hearing, the cost of the evaluation must be at public expense.
(e) Agency criteria. (1) If an independent educational evaluation
is at public expense, the criteria under which the evaluation is
obtained, including the location of the evaluation and the
qualifications of the examiner, must be the same as the criteria that
the public agency uses when it initiates an evaluation, to the extent
those criteria are consistent with the parent's right to an independent
educational evaluation.
(2) Except for the criteria described in paragraph (e)(1) of this
section, a public agency may not impose conditions or timelines related
to obtaining an independent educational evaluation at public expense.
(Authority: 20 U.S.C. 1415(b)(1))
Sec. 300.503 Prior notice by the public agency; content of notice.
(a) Notice. (1) Written notice that meets the requirements of
paragraph (b) of this section must be given to the parents of a child
with a disability a reasonable time before the public agency--
(i) Proposes to initiate or change the identification, evaluation,
or educational placement of the child or the provision of FAPE to the
child; or
(ii) Refuses to initiate or change the identification, evaluation,
or educational placement of the child or the provision of FAPE to the
child.
(2) If the notice described under paragraph (a)(1) of this section
relates to an action proposed by the public agency that also requires
parental consent under Sec. 300.505, the agency may give notice at the
same time it requests parent consent.
(b) Content of notice. The notice required under paragraph (a) of
this section must include--
(1) A description of the action proposed or refused by the agency;
(2) An explanation of why the agency proposes or refuses to take
the action;
(3) A description of any other options that the agency considered
and the reasons why those options were rejected;
(4) A description of each evaluation procedure, test, record, or
report the agency used as a basis for the proposed or refused action;
(5) A description of any other factors that are relevant to the
agency's proposal or refusal;
(6) A statement that the parents of a child with a disability have
protection under the procedural safeguards of this part and, if this
notice is not an initial referral for evaluation, the means by which a
copy of a description of the procedural safeguards can be obtained; and
(7) Sources for parents to contact to obtain assistance in
understanding the provisions of this part.
(c) Notice in understandable language. (1) The notice required
under paragraph (a) of this section must be--
(i) Written in language understandable to the general public; and
(ii) Provided in the native language of the parent or other mode of
communication used by the parent, unless it is clearly not feasible to
do so.
(2) If the native language or other mode of communication of the
parent is not a written language, the public agency shall take steps to
ensure--
(i) That the notice is translated orally or by other means to the
parent in his or her native language or other mode of communication;
(ii) That the parent understands the content of the notice; and
(iii) That there is written evidence that the requirements in
paragraphs (c)(2) (i) and (ii) of this section have been met.
(Authority: 20 U.S.C. 1415(b)(3), (4) and (c), 1414(b)(1))
Sec. 300.504 Procedural safeguards notice.
(a) General. A copy of the procedural safeguards available to the
parents of a child with a disability must be given to the parents, at a
minimum--
(1) Upon initial referral for evaluation;
(2) Upon each notification of an IEP meeting;
(3) Upon reevaluation of the child; and
(4) Upon receipt of a request for due process under Sec. 300.507.
(b) Contents. The procedural safeguards notice must include a full
explanation of all of the procedural safeguards available under
Secs. 300.403, 300.500-300.529, and 300.560-300.577, and the State
complaint procedures available under Secs. 300.660-300.662 relating
to--
(1) Independent educational evaluation;
(2) Prior written notice;
(3) Parental consent;
(4) Access to educational records;
(5) Opportunity to present complaints to initiate due process
hearings;
(6) The child's placement during pendency of due process
proceedings;
(7) Procedures for students who are subject to placement in an
interim alternative educational setting;
(8) Requirements for unilateral placement by parents of children in
private schools at public expense;
(9) Mediation;
(10) Due process hearings, including requirements for disclosure of
evaluation results and recommendations;
(11) State-level appeals (if applicable in that State);
(12) Civil actions;
(13) Attorneys' fees; and
(14) The State complaint procedures under Secs. 300.660-300.662,
including a description of how to file a complaint and the timelines
under those procedures.
(c) Notice in understandable language. The notice required under
paragraph (a) of this section must meet the requirements of
Sec. 300.503(c).
(Authority: 20 U.S.C. 1415(d))
Sec. 300.505 Parental consent.
(a) General. (1) Subject to paragraphs (a)(3), (b) and (c) of this
section, informed parent consent must be obtained before--
(i) Conducting an initial evaluation or reevaluation; and
(ii) Initial provision of special education and related services to
a child with a disability.
(2) Consent for initial evaluation may not be construed as consent
for initial placement described in paragraph (a)(1)(ii) of this
section.
[[Page 12450]]
(3) Parental consent is not required before--
(i) Reviewing existing data as part of an evaluation or a
reevaluation; or
(ii) Administering a test or other evaluation that is administered
to all children unless, before administration of that test or
evaluation, consent is required of parents of all children.
(b) Refusal. If the parents of a child with a disability refuse
consent for initial evaluation or a reevaluation, the agency may
continue to pursue those evaluations by using the due process
procedures under Secs. 300.507-300.509, or the mediation procedures
under Sec. 300.506 if appropriate, except to the extent inconsistent
with State law relating to parental consent.
(c) Failure to respond to request for reevaluation. (1) Informed
parental consent need not be obtained for reevaluation if the public
agency can demonstrate that it has taken reasonable measures to obtain
that consent, and the child's parent has failed to respond.
(2) To meet the reasonable measures requirement in paragraph (c)(1)
of this section, the public agency must use procedures consistent with
those in Sec. 300.345(d).
(d) Additional State consent requirements. In addition to the
parental consent requirements described in paragraph (a) of this
section, a State may require parental consent for other services and
activities under this part if it ensures that each public agency in the
State establishes and implements effective procedures to ensure that a
parent's refusal to consent does not result in a failure to provide the
child with FAPE.
(e) Limitation. A public agency may not use a parent's refusal to
consent to one service or activity under paragraphs (a) and (d) of this
section to deny the parent or child any other service, benefit, or
activity of the public agency, except as required by this part.
(Authority: 20 U.S.C. 1415(b)(3); 1414(a)(1)(C) and (c)(3))
Sec. 300.506 Mediation.
(a) General. Each public agency shall ensure that procedures are
established and implemented to allow parties to disputes involving any
matter described in Sec. 300.503(a)(1) to resolve the disputes through
a mediation process that, at a minimum, must be available whenever a
hearing is requested under Secs. 300.507 or 300.520-300.528.
(b) Requirements. The procedures must meet the following
requirements:
(1) The procedures must ensure that the mediation process--
(i) Is voluntary on the part of the parties;
(ii) Is not used to deny or delay a parent's right to a due process
hearing under Sec. 300.507, or to deny any other rights afforded under
Part B of the Act; and
(iii) Is conducted by a qualified and impartial mediator who is
trained in effective mediation techniques.
(2)(i) The State shall maintain a list of individuals who are
qualified mediators and knowledgeable in laws and regulations relating
to the provision of special education and related services.
(ii) If a mediator is not selected on a random (e.g., a rotation)
basis from the list described in paragraph (b)(2)(i) of this section,
both parties must be involved in selecting the mediator and agree with
the selection of the individual who will mediate.
(3) The State shall bear the cost of the mediation process,
including the costs of meetings described in paragraph (d) of this
section.
(4) Each session in the mediation process must be scheduled in a
timely manner and must be held in a location that is convenient to the
parties to the dispute.
(5) An agreement reached by the parties to the dispute in the
mediation process must be set forth in a written mediation agreement.
(6) Discussions that occur during the mediation process must be
confidential and may not be used as evidence in any subsequent due
process hearings or civil proceedings, and the parties to the mediation
process may be required to sign a confidentiality pledge prior to the
commencement of the process.
(c) Impartiality of mediator. (1) An individual who serves as a
mediator under this part--
(i) May not be an employee of--
(A) Any LEA or any State agency described under Sec. 300.194; or
(B) An SEA that is providing direct services to a child who is the
subject of the mediation process; and
(ii) Must not have a personal or professional conflict of interest.
(2) A person who otherwise qualifies as a mediator is not an
employee of an LEA or State agency described under Sec. 300.194 solely
because he or she is paid by the agency to serve as a mediator.
(d) Meeting to encourage mediation. (1) A public agency may
establish procedures to require parents who elect not to use the
mediation process to meet, at a time and location convenient to the
parents, with a disinterested party--
(i) Who is under contract with a parent training and information
center or community parent resource center in the State established
under section 682 or 683 of the Act, or an appropriate alternative
dispute resolution entity; and
(ii) Who would explain the benefits of the mediation process, and
encourage the parents to use the process.
(2) A public agency may not deny or delay a parent's right to a due
process hearing under Sec. 300.507 if the parent fails to participate
in the meeting described in paragraph (d)(1) of this section.
(Authority: 20 U.S.C. 1415(e))
Sec. 300.507 Impartial due process hearing; parent notice.
(a) General. (1) A parent or a public agency may initiate a hearing
on any of the matters described in Sec. 300.503(a)(1) and (2) (relating
to the identification, evaluation or educational placement of a child
with a disability, or the provision of FAPE to the child).
(2) When a hearing is initiated under paragraph (a)(1) of this
section, the public agency shall inform the parents of the availability
of mediation described in Sec. 300.506.
(3) The public agency shall inform the parent of any free or low-
cost legal and other relevant services available in the area if--
(i) The parent requests the information; or
(ii) The parent or the agency initiates a hearing under this
section.
(b) Agency responsible for conducting hearing. The hearing
described in paragraph (a) of this section must be conducted by the SEA
or the public agency directly responsible for the education of the
child, as determined under State statute, State regulation, or a
written policy of the SEA.
(c) Parent notice to the public agency. (1) General. The public
agency must have procedures that require the parent of a child with a
disability or the attorney representing the child, to provide notice
(which must remain confidential) to the public agency in a request for
a hearing under paragraph (a)(1) of this section.
(2) Content of parent notice. The notice required in paragraph
(c)(1) of this section must include--
(i) The name of the child;
(ii) The address of the residence of the child;
(iii) The name of the school the child is attending;
(iv) A description of the nature of the problem of the child
relating to the proposed or refused initiation or change, including
facts relating to the problem; and
(v) A proposed resolution of the problem to the extent known and
available to the parents at the time.
[[Page 12451]]
(3) Model form to assist parents. Each SEA shall develop a model
form to assist parents in filing a request for due process that
includes the information required in paragraphs (c)(1) and (2) of this
section.
(4) Right to due process hearing. A public agency may not deny or
delay a parent's right to a due process hearing for failure to provide
the notice required in paragraphs (c)(1) and (2) of this section.
(Authority: 20 U.S.C. 1415(b)(5), (b)(6), (b)(7), (b)(8), (e)(1) and
(f)(1))
Sec. 300.508 Impartial hearing officer.
(a) A hearing may not be conducted--
(1) By a person who is an employee of the State agency or the LEA
that is involved in the education or care of the child; or
(2) By any person having a personal or professional interest that
would conflict with his or her objectivity in the hearing.
(b) A person who otherwise qualifies to conduct a hearing under
paragraph (a) of this section is not an employee of the agency solely
because he or she is paid by the agency to serve as a hearing officer.
(c) Each public agency shall keep a list of the persons who serve
as hearing officers. The list must include a statement of the
qualifications of each of those persons.
(Authority: 20 U.S.C. 1415(f)(3))
Sec. 300.509 Hearing rights.
(a) General. Any party to a hearing conducted pursuant to
Secs. 300.507 or 300.520-300.528, or an appeal conducted pursuant to
Sec. 300.510, has the right to--
(1) Be accompanied and advised by counsel and by individuals with
special knowledge or training with respect to the problems of children
with disabilities;
(2) Present evidence and confront, cross-examine, and compel the
attendance of witnesses;
(3) Prohibit the introduction of any evidence at the hearing that
has not been disclosed to that party at least 5 business days before
the hearing;
(4) Obtain a written, or, at the option of the parents, electronic,
verbatim record of the hearing; and
(5) Obtain written, or, at the option of the parents, electronic
findings of fact and decisions.
(b) Additional disclosure of information. (1) At least 5 business
days prior to a hearing conducted pursuant to Sec. 300.507(a), each
party shall disclose to all other parties all evaluations completed by
that date and recommendations based on the offering party's evaluations
that the party intends to use at the hearing.
(2) A hearing officer may bar any party that fails to comply with
paragraph (b)(1) of this section from introducing the relevant
evaluation or recommendation at the hearing without the consent of the
other party.
(c) Parental rights at hearings. (1) Parents involved in hearings
must be given the right to--
(i) Have the child who is the subject of the hearing present; and
(ii) Open the hearing to the public.
(2) The record of the hearing and the findings of fact and
decisions described in paragraphs (a)(4) and (a)(5) of this section
must be provided at no cost to parents.
(d) Findings and decision to advisory panel and general public. The
public agency, after deleting any personally identifiable information,
shall --
(1) Transmit the findings and decisions referred to in paragraph
(a)(5) of this section to the State advisory panel established under
Sec. 300.650; and
(2) Make those findings and decisions available to the public.
(Authority: 20 U.S.C. 1415(f)(2) and (h))
Sec. 300.510 Finality of decision; appeal; impartial review.
(a) Finality of decision. A decision made in a hearing conducted
pursuant to Secs. 300.507 or 300.520-300.528 is final, except that any
party involved in the hearing may appeal the decision under the
provisions of paragraph (b) of this section and Sec. 300.512.
(Authority: 20 U.S.C. 1415(i)(1)(A))
(b) Appeal of decisions; impartial review. (1) General. If the
hearing required by Sec. 300.507 is conducted by a public agency other
than the SEA, any party aggrieved by the findings and decision in the
hearing may appeal to the SEA.
(2) SEA responsibility for review. If there is an appeal, the SEA
shall conduct an impartial review of the hearing. The official
conducting the review shall--
(i) Examine the entire hearing record;
(ii) Ensure that the procedures at the hearing were consistent with
the requirements of due process;
(iii) Seek additional evidence if necessary. If a hearing is held
to receive additional evidence, the rights in Sec. 300.509 apply;
(iv) Afford the parties an opportunity for oral or written
argument, or both, at the discretion of the reviewing official;
(v) Make an independent decision on completion of the review; and
(vi) Give a copy of the written, or, at the option of the parents,
electronic findings of fact and decisions to the parties.
(c) Findings and decision to advisory panel and general public. The
SEA, after deleting any personally identifiable information, shall--
(1) Transmit the findings and decisions referred to in paragraph
(b)(2)(vi) of this section to the State advisory panel established
under Sec. 300.650; and
(2) Make those findings and decisions available to the public.
(d) Finality of review decision. The decision made by the reviewing
official is final unless a party brings a civil action under
Sec. 300.512.
(Authority: 20 U.S.C. 1415(g); H. R. Rep. No. 94-664, at p. 49
(1975))
Sec. 300.511 Timelines and convenience of hearings and reviews.
(a) The public agency shall ensure that not later than 45 days
after the receipt of a request for a hearing--
(1) A final decision is reached in the hearing; and
(2) A copy of the decision is mailed to each of the parties.
(b) The SEA shall ensure that not later than 30 days after the
receipt of a request for a review--
(1) A final decision is reached in the review; and
(2) A copy of the decision is mailed to each of the parties.
(c) A hearing or reviewing officer may grant specific extensions of
time beyond the periods set out in paragraphs (a) and (b) of this
section at the request of either party.
(d) Each hearing and each review involving oral arguments must be
conducted at a time and place that is reasonably convenient to the
parents and child involved.
(Authority: 20 U.S.C. 1415)
Sec. 300.512 Civil action.
(a) General. Any party aggrieved by the findings and decision made
under Secs. 300.507 or 300.520-300.528 who does not have the right to
an appeal under Sec. 300.510(b), and any party aggrieved by the
findings and decision under Sec. 300.510(b), has the right to bring a
civil action with respect to the complaint presented pursuant to
Sec. 300.507. The action may be brought in any State court of competent
jurisdiction or in a district court of the United States without regard
to the amount in controversy.
(b) Additional requirements. In any action brought under paragraph
(a) of this section, the court--
(1) Shall receive the records of the administrative proceedings;
(2) Shall hear additional evidence at the request of a party; and
[[Page 12452]]
(3) Basing its decision on the preponderance of the evidence, shall
grant the relief that the court determines to be appropriate.
(c) Jurisdiction of district courts. The district courts of the
United States have jurisdiction of actions brought under section 615 of
the Act without regard to the amount in controversy.
(d) Rule of construction. Nothing in this part restricts or limits
the rights, procedures, and remedies available under the Constitution,
the Americans with Disabilities Act of 1990, title V of the
Rehabilitation Act of 1973, or other Federal laws protecting the rights
of children with disabilities, except that before the filing of a civil
action under these laws seeking relief that is also available under
section 615 of the Act, the procedures under Secs. 300.507 and 300.510
must be exhausted to the same extent as would be required had the
action been brought under section 615 of the Act.
(Authority: 20 U.S.C. 1415(i)(2), (i)(3)(A), and 1415(l))
Sec. 300.513 Attorneys' fees.
(a) In any action or proceeding brought under section 615 of the
Act, the court, in its discretion, may award reasonable attorneys' fees
as part of the costs to the parents of a child with a disability who is
the prevailing party.
(b)(1) Funds under Part B of the Act may not be used to pay
attorneys' fees or costs of a party related to an action or proceeding
under section 615 of the Act and subpart E of this part.
(2) Paragraph (b)(1) of this section does not preclude a public
agency from using funds under Part B of the Act for conducting an
action or proceeding under section 615 of the Act.
(c) A court awards reasonable attorney's fees under section
615(i)(3) of the Act consistent with the following:
(1) Determination of amount of attorneys' fees. Fees awarded under
section 615(i)(3) of the Act must be based on rates prevailing in the
community in which the action or proceeding arose for the kind and
quality of services furnished. No bonus or multiplier may be used in
calculating the fees awarded under this subsection.
(2) Prohibition of attorneys' fees and related costs for certain
services. (i) Attorneys' fees may not be awarded and related costs may
not be reimbursed in any action or proceeding under section 615 of the
Act for services performed subsequent to the time of a written offer of
settlement to a parent if--
(A) The offer is made within the time prescribed by Rule 68 of the
Federal Rules of Civil Procedure or, in the case of an administrative
proceeding, at any time more than 10 days before the proceeding begins;
(B) The offer is not accepted within 10 days; and
(C) The court or administrative hearing officer finds that the
relief finally obtained by the parents is not more favorable to the
parents than the offer of settlement.
(ii) Attorneys' fees may not be awarded relating to any meeting of
the IEP team unless the meeting is convened as a result of an
administrative proceeding or judicial action, or at the discretion of
the State, for a mediation described in Sec. 300.506 that is conducted
prior to the filing of a request for due process under Secs. 300.507 or
300.520-300.528.
(3) Exception to prohibition on attorneys' fees and related costs.
Notwithstanding paragraph (c)(2) of this section, an award of
attorneys' fees and related costs may be made to a parent who is the
prevailing party and who was substantially justified in rejecting the
settlement offer.
(4) Reduction of amount of attorneys' fees. Except as provided in
paragraph (c)(5) of this section, the court reduces, accordingly, the
amount of the attorneys' fees awarded under section 615 of the Act, if
the court finds that--
(i) The parent, during the course of the action or proceeding,
unreasonably protracted the final resolution of the controversy;
(ii) The amount of the attorneys' fees otherwise authorized to be
awarded unreasonably exceeds the hourly rate prevailing in the
community for similar services by attorneys of reasonably comparable
skill, reputation, and experience;
(iii) The time spent and legal services furnished were excessive
considering the nature of the action or proceeding; or
(iv) The attorney representing the parent did not provide to the
school district the appropriate information in the due process
complaint in accordance with Sec. 300.507(c).
(5) Exception to reduction in amount of attorneys' fees. The
provisions of paragraph (c)(4) of this section do not apply in any
action or proceeding if the court finds that the State or local agency
unreasonably protracted the final resolution of the action or
proceeding or there was a violation of section 615 of the Act.
(Authority: 20 U.S.C. 1415(i)(3)(B)-(G))
Sec. 300.514 Child's status during proceedings.
(a) Except as provided in Sec. 300.526, during the pendency of any
administrative or judicial proceeding regarding a complaint under
Sec. 300.507, unless the State or local agency and the parents of the
child agree otherwise, the child involved in the complaint must remain
in his or her current educational placement.
(b) If the complaint involves an application for initial admission
to public school, the child, with the consent of the parents, must be
placed in the public school until the completion of all the
proceedings.
(c) If the decision of a hearing officer in a due process hearing
conducted by the SEA or a State review official in an administrative
appeal agrees with the child's parents that a change of placement is
appropriate, that placement must be treated as an agreement between the
State or local agency and the parents for purposes of paragraph (a) of
this section.
(Authority: 20 U.S.C. 1415(j))
Sec. 300.515 Surrogate parents.
(a) General. Each public agency shall ensure that the rights of a
child are protected if--
(1) No parent (as defined in Sec. 300.20) can be identified;
(2) The public agency, after reasonable efforts, cannot discover
the whereabouts of a parent; or
(3) The child is a ward of the State under the laws of that State.
(b) Duty of public agency. The duty of a public agency under
paragraph (a) of this section includes the assignment of an individual
to act as a surrogate for the parents. This must include a method--
(1) For determining whether a child needs a surrogate parent; and
(2) For assigning a surrogate parent to the child.
(c) Criteria for selection of surrogates. (1) The public agency may
select a surrogate parent in any way permitted under State law.
(2) Except as provided in paragraph (c)(3) of this section, public
agencies shall ensure that a person selected as a surrogate--
(i) Is not an employee of the SEA, the LEA, or any other agency
that is involved in the education or care of the child;
(ii) Has no interest that conflicts with the interest of the child
he or she represents; and
(iii) Has knowledge and skills that ensure adequate representation
of the child.
(3) A public agency may select as a surrogate a person who is an
employee of a nonpublic agency that only provides non-educational care
for the child and who meets the standards in
[[Page 12453]]
paragraphs (c)(2)(ii) and (iii) of this section.
(d) Non-employee requirement; compensation. A person who otherwise
qualifies to be a surrogate parent under paragraph (c) of this section
is not an employee of the agency solely because he or she is paid by
the agency to serve as a surrogate parent.
(e) Responsibilities. The surrogate parent may represent the child
in all matters relating to--
(1) The identification, evaluation, and educational placement of
the child; and
(2) The provision of FAPE to the child.
(Authority: 20 U.S.C. 1415(b)(2))
Sec. 300.516 [Reserved].
Sec. 300.517 Transfer of parental rights at age of majority.
(a) General. A State may provide that, when a student with a
disability reaches the age of majority under State law that applies to
all students (except for a student with a disability who has been
determined to be incompetent under State law)--
(1)(i) The public agency shall provide any notice required by this
part to both the individual and the parents; and
(ii) All other rights accorded to parents under Part B of the Act
transfer to the student; and
(2) All rights accorded to parents under Part B of the Act transfer
to students who are incarcerated in an adult or juvenile, State or
local correctional institution.
(3) Whenever a State transfers rights under this part pursuant to
paragraph (a)(1) or (a)(2) of this section, the agency shall notify the
individual and the parents of the transfer of rights.
(b) Special rule. If, under State law, a State has a mechanism to
determine that a student with a disability, who has reached the age of
majority under State law that applies to all children and has not been
determined incompetent under State law, does not have the ability to
provide informed consent with respect to his or her educational
program, the State shall establish procedures for appointing the
parent, or, if the parent is not available another appropriate
individual, to represent the educational interests of the student
throughout the student's eligibility under Part B of the Act.
(Authority: 20 U.S.C. 1415(m))
Discipline Procedures
Sec. 300.519 Change of placement for disciplinary removals.
For purposes of removals of a child with a disability from the
child's current educational placement under Secs. 300.520-300.529, a
change of placement occurs if--
(a) The removal is for more than 10 consecutive school days; or
(b) The child is subjected to a series of removals that constitute
a pattern because they cumulate to more than 10 school days in a school
year, and because of factors such as the length of each removal, the
total amount of time the child is removed, and the proximity of the
removals to one another.
(Authority: 20 U.S.C. 1415(k))
Sec. 300.520 Authority of school personnel.
(a) School personnel may order--
(1)(i) To the extent removal would be applied to children without
disabilities, the removal of a child with a disability from the child's
current placement for not more than 10 consecutive school days for any
violation of school rules, and additional removals of not more than 10
consecutive school days in that same school year for separate incidents
of misconduct (as long as those removals do not constitute a change of
placement under Sec. 300.519(b));
(ii) After a child with a disability has been removed from his or
her current placement for more than 10 school days in the same school
year, during any subsequent days of removal the public agency must
provide services to the extent required under Sec. 300.121(d); and
(2) A change in placement of a child with a disability to an
appropriate interim alternative educational setting for the same amount
of time that a child without a disability would be subject to
discipline, but for not more than 45 days, if--
(i) The child carries a weapon to school or to a school function
under the jurisdiction of a State or a local educational agency; or
(ii) The child knowingly possesses or uses illegal drugs or sells
or solicits the sale of a controlled substance while at school or a
school function under the jurisdiction of a State or local educational
agency.
(b)(1) Either before or not later than 10 business days after
either first removing the child for more than 10 school days in a
school year or commencing a removal that constitutes a change of
placement under Sec. 300.519, including the action described in
paragraph (a)(2) of this section--
(i) If the LEA did not conduct a functional behavioral assessment
and implement a behavioral intervention plan for the child before the
behavior that resulted in the removal described in paragraph (a) of
this section, the agency shall convene an IEP meeting to develop an
assessment plan.
(ii) If the child already has a behavioral intervention plan, the
IEP team shall meet to review the plan and its implementation, and,
modify the plan and its implementation as necessary, to address the
behavior.
(2) As soon as practicable after developing the plan described in
paragraph (b)(1)(i) of this section, and completing the assessments
required by the plan, the LEA shall convene an IEP meeting to develop
appropriate behavioral interventions to address that behavior and shall
implement those interventions.
(c)(1) If subsequently, a child with a disability who has a
behavioral intervention plan and who has been removed from the child's
current educational placement for more than 10 school days in a school
year is subjected to a removal that does not constitute a change of
placement under Sec. 300.519, the IEP team members shall review the
behavioral intervention plan and its implementation to determine if
modifications are necessary.
(2) If one or more of the team members believe that modifications
are needed, the team shall meet to modify the plan and its
implementation, to the extent the team determines necessary.
(d) For purposes of this section, the following definitions apply:
(1) Controlled substance means a drug or other substance identified
under schedules I, II, III, IV, or V in section 202(c) of the
Controlled Substances Act (21 U.S.C. 812(c)).
(2) Illegal drug--
(i) Means a controlled substance; but
(ii) Does not include a substance that is legally possessed or used
under the supervision of a licensed health-care professional or that is
legally possessed or used under any other authority under that Act or
under any other provision of Federal law.
(3) Weapon has the meaning given the term ``dangerous weapon''
under paragraph (2) of the first subsection (g) of section 930 of title
18, United States Code.
(Authority: 20 U.S.C. 1415(k)(1), (10))
Sec. 300.521 Authority of hearing officer.
A hearing officer under section 615 of the Act may order a change
in the placement of a child with a disability to an appropriate interim
alternative educational setting for not more than 45 days if the
hearing officer, in an expedited due process hearing--
(a) Determines that the public agency has demonstrated by
substantial evidence that maintaining the current placement of the
child is substantially likely to result in injury to the child or to
others;
[[Page 12454]]
(b) Considers the appropriateness of the child's current placement;
(c) Considers whether the public agency has made reasonable efforts
to minimize the risk of harm in the child's current placement,
including the use of supplementary aids and services; and
(d) Determines that the interim alternative educational setting
that is proposed by school personnel who have consulted with the
child's special education teacher, meets the requirements of
Sec. 300.522(b).
(e) As used in this section, the term substantial evidence means
beyond a preponderance of the evidence.
(Authority: 20 U.S.C. 1415(k)(2), (10))
Sec. 300.522 Determination of setting.
(a) General. The interim alternative educational setting referred
to in Sec. 300.520(a)(2) must be determined by the IEP team.
(b) Additional requirements. Any interim alternative educational
setting in which a child is placed under Secs. 300.520(a)(2) or 300.521
must--
(1) Be selected so as to enable the child to continue to progress
in the general curriculum, although in another setting, and to continue
to receive those services and modifications, including those described
in the child's current IEP, that will enable the child to meet the
goals set out in that IEP; and
(2) Include services and modifications to address the behavior
described in Secs. 300.520(a)(2) or 300.521, that are designed to
prevent the behavior from recurring.
(Authority: 20 U.S.C. 1415(k)(3))
Sec. 300.523 Manifestation determination review.
(a) General. If an action is contemplated regarding behavior
described in Secs. 300.520(a)(2) or 300.521, or involving a removal
that constitutes a change of placement under Sec. 300.519 for a child
with a disability who has engaged in other behavior that violated any
rule or code of conduct of the LEA that applies to all children--
(1) Not later than the date on which the decision to take that
action is made, the parents must be notified of that decision and
provided the procedural safeguards notice described in Sec. 300.504;
and
(2) Immediately, if possible, but in no case later than 10 school
days after the date on which the decision to take that action is made,
a review must be conducted of the relationship between the child's
disability and the behavior subject to the disciplinary action.
(b) Individuals to carry out review. A review described in
paragraph (a) of this section must be conducted by the IEP team and
other qualified personnel in a meeting.
(c) Conduct of review. In carrying out a review described in
paragraph (a) of this section, the IEP team and other qualified
personnel may determine that the behavior of the child was not a
manifestation of the child's disability only if the IEP team and other
qualified personnel--
(1) First consider, in terms of the behavior subject to
disciplinary action, all relevant information, including --
(i) Evaluation and diagnostic results, including the results or
other relevant information supplied by the parents of the child;
(ii) Observations of the child; and
(iii) The child's IEP and placement; and
(2) Then determine that--
(i) In relationship to the behavior subject to disciplinary action,
the child's IEP and placement were appropriate and the special
education services, supplementary aids and services, and behavior
intervention strategies were provided consistent with the child's IEP
and placement;
(ii) The child's disability did not impair the ability of the child
to understand the impact and consequences of the behavior subject to
disciplinary action; and
(iii) The child's disability did not impair the ability of the
child to control the behavior subject to disciplinary action.
(d) Decision. If the IEP team and other qualified personnel
determine that any of the standards in paragraph (c)(2) of this section
were not met, the behavior must be considered a manifestation of the
child's disability.
(e) Meeting. The review described in paragraph (a) of this section
may be conducted at the same IEP meeting that is convened under
Sec. 300.520(b).
(f) Deficiencies in IEP or placement. If, in the review in
paragraphs (b) and (c) of this section, a public agency identifies
deficiencies in the child's IEP or placement or in their
implementation, it must take immediate steps to remedy those
deficiencies.
(Authority: 20 U.S.C. 1415(k)(4))
Sec. 300.524 Determination that behavior was not manifestation of
disability.
(a) General. If the result of the review described in Sec. 300.523
is a determination, consistent with Sec. 300.523(d), that the behavior
of the child with a disability was not a manifestation of the child's
disability, the relevant disciplinary procedures applicable to children
without disabilities may be applied to the child in the same manner in
which they would be applied to children without disabilities, except as
provided in Sec. 300.121(d).
(b) Additional requirement. If the public agency initiates
disciplinary procedures applicable to all children, the agency shall
ensure that the special education and disciplinary records of the child
with a disability are transmitted for consideration by the person or
persons making the final determination regarding the disciplinary
action.
(c) Child's status during due process proceedings. Except as
provided in Sec. 300.526, Sec. 300.514 applies if a parent requests a
hearing to challenge a determination, made through the review described
in Sec. 300.523, that the behavior of the child was not a manifestation
of the child's disability.
(Authority: 20 U.S.C. 1415(k)(5))
Sec. 300.525 Parent appeal.
(a) General. (1) If the child's parent disagrees with a
determination that the child's behavior was not a manifestation of the
child's disability or with any decision regarding placement under
Secs. 300.520-300.528, the parent may request a hearing.
(2) The State or local educational agency shall arrange for an
expedited hearing in any case described in paragraph (a)(1) of this
section if a hearing is requested by a parent.
(b) Review of decision. (1) In reviewing a decision with respect to
the manifestation determination, the hearing officer shall determine
whether the public agency has demonstrated that the child's behavior
was not a manifestation of the child's disability consistent with the
requirements of Sec. 300.523(d).
(2) In reviewing a decision under Sec. 300.520(a)(2) to place the
child in an interim alternative educational setting, the hearing
officer shall apply the standards in Sec. 300.521.
(Authority: 20 U.S.C. 1415(k)(6))
Sec. 300.526 Placement during appeals.
(a) General. If a parent requests a hearing or an appeal regarding
a disciplinary action described in Sec. 300.520(a)(2) or 300.521 to
challenge the interim alternative educational setting or the
manifestation determination, the child must remain in the interim
alternative educational setting pending the decision of the hearing
officer or until the expiration of the time period provided for in
Sec. 300.520(a)(2) or 300.521, whichever occurs first, unless the
parent and the State agency or local educational agency agree
otherwise.
[[Continued on page 12455]]