IDEA-PART B FINAL REGULATIONS* INTRODUCTORY COMMENTS (March
1999)
INTRODUCTION-BACKGROUND
IDEA '97 - A Major Milestone. The IDEA Amendments of 1997
(IDEA '97) represent a major milestone in the education of children
with disabilities -- the first major revision to the Act in more
than 23 years (since the enactment of P.L. 94-142, the Education of
all Handicapped Children Act of 1975).
- BASIC RIGHTS RETAINED.
IDEA '97 retains (and strengthens) the basic rights and
protections under IDEA -- including:
- the right to a free appropriate public education (FAPE) for
all children with disabilities, including children suspended or
expelled from school; and
- the procedural safeguards rights for these children and
their parents.
- EMPHASIS ON IMPROVING RESULTS.
IDEA '97 provides a new and heightened emphasis on improving
educational results for children with disabilities, including
provisions which ensure that these children
- have meaningful access to the general curriculum through
improvements to the IEP, and
- are included in general education reform efforts related to
accountability and high expectations, and that focus on improved
teaching and learning.
Publication of Regs to implement IDEA '97 - A Positive
Event. The publication of final regulations under Part B of
the IDEA is a very positive event for the more than 6 million
children with disabilities throughout the nation, their parents, and
all teachers, administrators, and related services providers who
have a stake in the education of these children.
- WHY THE REGULATIONS ARE NEEDED.
The final regulations
are needed to –
- implement changes made to Part B by the IDEA Amendments of
1997 (P. L. 105-17), and
- include provisions that facilitate the implementation of
Part B, including relevant, longstanding policy interpretations.
The regulations provide the guidance and clarification needed to
effectively implement the new statutory provisions, and enhance
the education of children with disabilities in all communities
throughout the Nation.
- POTENTIAL IMPACT FOR CHILDREN AND PARENTS.
The statute and regulations are designed to improve services
to children with disabilities and strengthen the involvement of
their parents. Full implementation of the Act and these final
regulations by public agencies within each State should result
in these children achieving at significantly higher levels than
in the past, and, thus, being better prepared as adults for
higher education, quality employment, and effective community
living.
NPRM to Final Regs -- An Intensive, Lengthy Effort.
The final regulations are the result of many months of intensive
work by Department of Education staff since publication of proposed
rules for the Part B program. On October 22, 1997, the Department
published a Notice of Proposed rulemaking (NPRM) in the
Federal Register to invite public comment on the
changes being proposed to the Part B regulations.
- NPRM INCLUDED FULL "TEXT" OF REGS -- TO ASSIST READERS.
In publishing the NPRM, the Department elected to include the
full text of the regulations, as they would be amended, rather
than simply publishing a document that showed only the changes
proposed to the current regulations. Although that approach
increased the length of the NPRM, it provided a more meaningful
way for parents, agency officials, and the general public to
review the proposed changes within the context of the existing
regulations, and to comment on both the existing regulations as
well as proposed changes.
- "SEVEN" PUBLIC HEARINGS -- 90-DAY PUBLIC COMMENT PERIOD.
Following publication of the NPRM, the Department conducted 7
public hearings (in Boston, Atlanta, Dallas, Washington, Chicago,
San Francisco, and Denver), and solicited public comments for a
period of 90 days -- through Jan 20, 1998.
PUBLIC COMMENTS ON NPRM; IMPACT ON "NOTES"
Nearly 6,000 written comments were received on the NPRM --
including comments on all 7 subparts and on many sections of the
regulations, including some longstanding sections that had not been
changed by the NPRM.
- MOST COMMENTS WERE VERY THOUGHTFUL,
and demonstrated a
commitment to making sure that the IDEA and its regulations make a
real difference in the day-to-day education of children with
disabilities. Some comments were very detailed, addressing
virtually all proposed changes in the NPRM.
- ALL COMMENTS WERE CAREFULLY REVIEWED AND ANALYZED.
A
significant number of changes have been made as a result of the
comments received -- with technical or substantive changes
being made to nearly 60% of the sections included in the
NPRM.
Impact of Comments on "Notes" in NPRM:
- CONCERNS ABOUT NOTES.
Many commenters expressed concerns about having notes in the
regs, and requested that they either be added to the text of the
regulations (if considered to be requirements) or otherwise be
moved to a technical assistance document or deleted.
- ALL NOTES REMOVED.
In light of the comments received,
all NPRM notes (a total of 126) have been removed from the final
regulations and addressed in a manner generally consistent with
the comments received -- e.g.,
- the substance of any note that should be a requirement has
been added to the text of the regulations, and
- any note that provides useful guidance has been incorporated
into the discussion of applicable comments in the "Analysis of
Comments and Changes" in Attachment 1 to the final regulations.
FINAL REGS PACKAGE -- COMPOSED OF "8" DISCRETE PARTS,
as follows:
- Preamble.
- Regulations for Part B (Part 300).
- Appendix A--Notice of Interpretation on IEPs.
- Appendix B--Index to Part B Regulations.
- Attachment 1--Analysis of Comments and Changes (To address the
nearly 6,000 public comments received on the NPRM).
- Attachment 2--Assessment of Costs and Benefits.
- Attachment 3--Table showing "Disposition of NPRM Notes in
Final Regulations for Parts 300 and 303."
- Conforming Regulations for the Early Intervention Program
under Part C (Part 303)
FINAL REGS PACKAGE INCLUDES "3" BROAD CATEGORIES,
as follows:
A. "Text" of Regulations -- Makes up Only 25% of the
Entire package and is shorter than the text of the NPRM --
mainly because all 126 NPRM notes have been removed (except for
incorporating the substance of certain key notes into the final
Regs).
B. "Analysis of Comments" and Other Required Items =
Nearly 2/3's of the Entire package, as follows:
1. ANALYSIS OF COMMENTS = OVER 50% of the package.
Because of the large number of public comments received on the
NPRM (a total of nearly 6,000), an analysis of those comments
(in Attachment 1 to the final regulations) -- including a
description of the changes made since publication of the NPRM --
makes up more than 1/2 of the entire package.
2. OTHER REQUIRED DOCUMENTS = NEARLY 10% of the
package, including the "Preamble" to the final regulations, and
the "Analysis of Costs and Benefits" in Attachment
2.
C. Technical Assistance Documents -- Make up Nearly
10% of the Package, and include the
following:
1. NOTICE OF INTERPRETATION (NOI) ON IEPS AND OTHER
SELECTED IMPLIMENTATION ISSUES ("Appendix A"). The
longstanding interpretation on IEPs in Appendix A (formerly
Appendix C) was revised in the NPRM to align it more closely
with the new focus of IDEA '97 (for example, on improving
results for children with disabilities through participation in
the general curriculum). The NOI should provide useful guidance
and clarifying information for parents, teachers, and
administrators on effective implementation of the new IEP
requirements.
2. INDEX TO PART B REGULATIONS ("Appendix B"). To
assist readers in finding information in the final Part B
regulations, an index to the regulations has been added as a new
Appendix B.
3. TABLE ON DISPOSITION OF NPRM NOTES ("Attachment
3"). Because of the important role that explanatory notes in the
Part B regulations have played in the past, and the fact that
all 126 notes in the NPRM have been removed from the final
regulations, a table has been provided (in Attachment 3) to
assist readers in determining the disposition of each note in
the final regulations (i.e., whether the substance of the note
has been -- (1) added to the text of the regulation as a
requirement; (2) added to the "Notice of Interpretation" on
IEPs; (3) included in the "Analysis of Comments and Changes" in
Attachment 1; or (4) simply
deleted.
NEW ("FINAL") REGS -- CHANGES FROM "PRIOR" REGS
A. New Provisions Directly Related to IDEA '97 -- Make up
75% of the Changes from Prior Regs,
including:
1. TOTALLY NEW REQUIREMENTS ADDED BY IDEA '97 (e.g.,
new statutory provisions on mediation, discipline, parent
notice, procedural safeguards notice, State maintenance of
effort, public charter schools, performance goals and
indicators, participation in assessments, schoolwide programs,
coordinated services system, suspension and expulsion rates,
school based improvement plans, etc.).
2. CHANGES MADE TO PRIOR REGULATIONS BY IDEA '97,
including (for example) changes related to -- State and local
eligibility (to replace provisions on State plans and local
applications); personnel standards; CSPD; the definition of
"child with a disability" (including changes to "developmental
delay"); evaluation, IEPs, private school children with
disabilities, State advisory panels, the definition of "related
services" (to add "O & M services"), LRE (to add a provision
on State funding formulas), etc.
3. REGS NEEDED TO SPECIFICALLY IMPLEMENT IDEA '97
requirements, e.g., adding, specifying, or providing needed
guidance regarding --
- The discipline procedures described under §§300.121(d) and
300.519-300.529;
- State eligibility requirements (to more explicitly state
what is required to ensure compliance with the requirements
under §§300.110-300.113 and 300.121-300.156);
- Situations in which the exception to FAPE for students
with disabilities in adult prisons does not apply
(§300.122(a)(2));
- Schoolwide program schools -- to make it clear that an LEA
that uses Part B funds in those schools must ensure that
children with disabilities in the schools receive services in
accordance with a properly developed IEP, and be afforded all
of the rights guaranteed under the Act (§300.234);
- "IEP team" (to clarify how to implement the provision
regarding the membership of "other individuals who have
knowledge or special expertise about the child"
(§300.344(a)(6) and (c)); and
- Other changes, including those resulting from public
comments received on the NPRM (see "Changes in Regulations
Since NPRM," on page 6, below).
B. Provisions that Facilitate Implementation of Part B
plus Longstanding Policy Interpretations -- Make up
25% of the changes from prior regulations, as
follows:
1. PROVISIONS THAT FACILITATE IMPLEMENTATION OF PART
B. About 15% of the changes from the prior regulations
include provisions needed to clarify and facilitate
implementation of Part B, including (for example)
--
- Amending the definition of "educational service agency"
(to clarify that the term includes entities that meet the
definition of "intermediate educational unit" in effect under
prior law and regs);
- Adding all statutory provisions on "attorneys' fees;" and
including other relevant terms under the Education Department
General Administrative Regulations (EDGAR) definition in
§300.30 -- to help make the final Part B regulations as
complete and self-contained as possible;
- Adding "travel training" as a special education service
that provides instruction, as appropriate, to children with
significant cognitive disabilities, and any other children who
need it -- to enable them to develop an awareness of their
environment, and learn the skills necessary to move
effectively and safely within that environment; and
- Retaining a number of proposed provisions (or notes)
directly from the NPRM, or in modified form, such as:
- The concept of "specially designed instruction"
(§300.26(b)(3));
- The provision on "child find" for children from birth
through age 2 when the SEA and lead agency for Part C are
different (§300.125(c)); and
- The provision under State complaint procedures, related
to "Remedies for denial of appropriate services" (§300.660),
etc. (see "Changes in Regulations Since NPRM," below).
2. LONGSTANDING POLICY INTERPRETATIONS. Nearly 10% of
the changes from prior regulations = interpretations
based on the statutory provisions of IDEA that were in effect
prior to IDEA '97 and that were not changed because of the new
statutory amendments. Examples of these provisions include
recognizing that --
- "ADD/ADHD" may be eligible conditions under "other health
impairment (OHI)" under certain circumstances, and that OHI
includes "a heightened alertness to environmental stimuli that
results in limited alertness with respect to the educational
environment" (§300.7(c)(9));
- A "Foster parent" may qualify as a "parent" -- under
certain circumstances and if permitted under State law
(§300.20);
- If a child's third birthday is in the summer, the IEP team
that develops the child's IEP or IFSP determines the date when
services begin (§300.121(c));
- Graduation with a regular high school diploma ends a
student's eligibility under Part B (§300.122(c)); and
- Extended school year services must be provided if
necessary for the provision of FAPE to an eligible child under
Part B (§300.309).
CHANGES IN REGULATIONS SINCE NPRM
A. Changes Regarding "Notes" in
NPRM:
- ALL 126 NPRM "NOTES" HAVE BEEN REMOVED
from the final
regulations, (as discussed on page 3 and in item A-2,
immediately below).
- FIFTY-THREE OF THE 126 NOTES HAVE BEEN ADDED TO THE REGS
--i.e., the substance of the notes has been added to the "text"
of the Regs, resulting in changes from the NPRM. (See Attachment
3, Re "Disposition of NPRM Notes in Final Regulations...")
B. Very few "NEW" provisions have been added to the
final regulations that were not otherwise covered in the NPRM,
or requested by commenters (see item C, below).
C. Changes Based on Public Comments. A significantly
large number of changes have been made in the Regs, in direct
response to public comments received, including (for example)
adding new items or making changes in existing areas, as
follows:
1. DEFINITIONS OF "BUSINESS DAY" AND "SCHOOL DAY" have
been added (§300.9(b) and (c)).
2. PUBLIC CHARTER SCHOOLS. A new §300.312 has been
added to --
Specify that children with disabilities and their parents
retain all rights under these regulations regardless of
whether a charter school receives Part B funds; and
Address the responsibilities of public charter schools that
are LEAs; LEAs if the charter school is under the LEA; and the
SEA if the charter school is not an LEA or a school of an LEA.
("Public charter schools" has also been added to the
definitions of "LEA" (§300.11) and "public agency" (§300.20),
and to §300.2 (Applicability of this part); and §300.241
(Treatment of charter schools and their students) has been
retained without change.)
3. GRADUATION WITH A REGULAR HIGH SCHOOL DIPLOMA.
A new §300.534(c) has been added to clarify that evaluation
"is not required before the termination of a student's
eligibility under Part B due to graduation with a regular high
school diploma..." However, §300.122(a)(3) has been amended to
add the substance of the note following §300.122 of the NPRM --
that graduation from high school with a regular diploma
constitutes a change in placement requiring written prior notice
in accordance with §300.503.
4. DEVELOPMENTAL DELAY. A new §300.313 has been
added to --
- Clarify the conditions that States and LEAs must meet in
using "developmental delay;"
- Permit the use of disability categories for any child with
a diagnosed disability under §300.7, in conjunction with using
the term "developmental delay;" and
- Permit (but not require) a State to adopt a common State
definition of "developmental delay" for use under both the
Part B and Part C programs.
5. PUBLIC & PRIVATE INSURANCE (Methods of ensuring
services). Proposed §300.142 has been amended (for example)
to --
- Add a new §300.142(e) on conditions under which "public
insurance" may be used;
- Clarify that a public agency must obtain informed parent
consent (consistent with the definition of "consent" in
§300.500(b)(1)) each time the agency proposes to access a
parent's private insurance proceeds;
- Permit the use of Part B funds for (1) the cost of
required services under Part B (if the parents refuse consent
to use insurance), and (2) the costs of using the
parents' insurance (e.g., to pay deductible or co-pay
amounts); and
- Clarify that insurance proceeds received by a public
agency (1) do not have to be returned to the program,
and (2) do not have to be counted for purposes of
maintenance of effort.
- Add a construction clause that states "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.
6. IEP REQUIREMENTS. The IEP provisions have been
revised (for example) to:
- Require the public agency to give parents a copy of their
child's IEP, at no cost to the parents, and without parents
having to request a copy. (§300.345(f))
- Specify that each regular and special education teacher
and related services provider responsible for implementing a
child's IEP must (1) have access to the child's IEP, and (2)
be informed of his or her specific responsibilities in
accordance with the IEP, etc...(§300.342(b))
- Provide that a child's performance on any general State or
district-wide assessment programs must be considered by the
IEP team under §300.346(a).
- Replace "IEPs" with "services plans" for parentally-placed
children in private schools, and move the provision related to
those children from the
- IEP requirements in §300.350 of the NPRM to the private
school requirements in §300.452.
7. OTHER CHANGES from the NPRM (e.g., changes in --
(A) the definitions of "deaf-blindness" and "multiple
disabilities" (to replace "problems" with "needs") and the
definition of parent counseling and training (to add that the
term also means helping parents to acquire the necessary skills
to allow them to support the implementation of their child's
IEP/IFSP); and (B) many other changes (e.g., in discipline,
personnel standards, FAPE--methods and payments, children in
private schools, hearing rights,
etc.).
D. Some NPRM provisions (and certain notes) have been
deleted, consistent with the comments received. For
example --
1. THE "JUSTIFICATION" PROVISION ON TRANSITION SERVICES IN
THE IEP (which required that if a student's IEP team
determines that transition services are not needed in one or
more defined areas, the IEP must include a statement to that
effect and the basis upon which the determination was made) has
been deleted; and
2. THE 60-DAY TIMELINE ON IEPS (in the note following
§300.343) has been deleted as a specified regulatory timeline,
and replaced with a description of the Department's expectations
related to timely delivery of services (included in the
discussion following §300.343 in Appendix 1).
* On October 22, 1997, a Notice of Proposed Rulemaking (NPRM) was
published in the Federal Register to amend the
regulations under Part B of the Individuals with Disabilities
Education Act (IDEA). The purposes of the NPRM were to implement
changes made by the IDEA Amendments of 1997, and make other changes
that facilitate the implementation of Part B. The changes made since
the NPRM are based mainly on public comments
received. |