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IDEA-PART B FINAL
REGULATIONS1
PROVISIONS OF
SPECIAL INTEREST TO ADMINISTRATORS
(March 1999)
Below is a description of changes that have been made to the
IDEA-Part B final regulations (including certain items that have
been retained, modified, or added since publication of the NPRM)
that may be of special interest to administrators2:
Discipline Procedures
Introduction. Prior to enactment of the IDEA Amendments of 1997,
the statute only specifically addressed the issue of discipline in a
provision that allowed school personnel to remove a child to an
interim alternative educational placement for up to 45 days if the
child brought a gun to school or to a school function. The 1997
Amendments incorporated prior court decisions and Department policy
that had held that -
- schools could remove a child for up to ten school days at a
time for any violation of school rules as long as there was not a
pattern of removals;
- a child with a disability could not be long-term suspended or
expelled from school for behavior that was a manifestation of his
or her disability; and
- services must continue for children with disabilities who are
suspended or expelled from school.
In addition, the 1997 Amendments:
- expanded the authority of school personnel regarding the
removal of a child who brings a gun to school, to also apply to
all dangerous weapons and to the knowing possession of illegal
drugs or the sale or solicitation of the sale of controlled
substances; and
- added a new ability of schools to request a hearing officer to
remove a child for up to 45 days if keeping the child in his or
her current placement is substantially likely to result in injury
to the child or to others.
The Amendments also added new provisions that require schools to
assess a child's troubling behavior and develop positive behavioral
interventions to address that behavior, and that describe how to
determine whether the behavior was a manifestation of the child's
disability.
The final regulations incorporate the statutory provisions
described above, and provide additional specificity on a number of
key issues:
Removals of Up to Ten School Days at a Time
- The regulations clarify that school personnel may remove a
child with a disability for up to ten school days, and for
additional removals of up to ten school days for separate acts of
misconduct, as long as the removals do not constitute a pattern.
Providing Services During Periods of Disciplinary Removal
- Schools do not need to provide services during the first ten
school days in a school year that a child is removed.
- During any subsequent removal that is for ten school days or
less, schools provide services to the extent determined necessary
to enable the child to appropriately progress in the general
curriculum and appropriately advance toward achieving the goals of
his or her IEP. In cases involving removals for ten school days or
less, school personnel, in consultation with the child's special
education teacher, make the service determination.
- During any long-term removal for behavior that is not a
manifestation of a child's disability, schools provide services to
the extent determined necessary to enable the child to
appropriately progress in the general curriculum and appropriately
advance toward achieving the goals of his or her IEP. In cases
involving removals for behavior that is not a manifestation of the
child's disability, the child's IEP team makes the service
determination.
Conducting Behavioral Assessments and Developing
Behavioral Interventions
- Meetings of a child's IEP team to develop a behavioral
assessment plan, or (if the child has one) to review the child's
behavioral intervention plan, are only required when the child has
first been removed from his or her current placement for more than
ten school days in a school year, and when commencing a removal
that constitutes a change in placement.
- If other subsequent removals occur, the IEP team members
review the child's behavioral intervention plan and its
implementation to determine if modifications are necessary, and
only meet if one or more team members believe that modifications
are necessary.
Change of Placement; Manifestation Determinations
- The regulations provide that a change of placement occurs if a
child is removed for more than ten consecutive school days or is
subjected to a series of removals that constitute a pattern
because they cumulate to more than ten 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.
- Manifestation determinations are only required if a school is
implementing a removal that constitutes a change of placement.
Free Appropriate Public Education (FAPE) and Eligibility
- Services Based on Identified Need.
The
FAPE requirements in §300.300 have been amended to make clear that
services provided to an eligible child must -
A. address all of the child's special education and related
services needs, and
B. be based on the identified needs of the child, and not the
child's disability category. (See §300.300(a)(3).)
- FAPE for Children Beginning at Age 3.
A
new §300.121(c) has been added to provide that FAPE (with an IEP
or IFSP) begins on a child's third birthday; but if the child
turns age 3 during the summer, the IEP team determines the date
when services will begin.
- Use of Assistive Technology in a Child's Home If
Needed for FAPE.
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. (See §300.308).
- Extended School Year (ESY) Services.
Section §300.309 (ESY services) has been amended to
clarify that a public agency may not limit ESY services to
particular categories of disability, or unilaterally limit the
type, amount, or duration of those services. (See §300.309(a)(3).)
- Graduation Policy Retained; Prior Notice and
Evaluation Addressed.
The final regulations retain
the policy position that a student's right to FAPE is terminated
upon graduation with a regular high school diploma, but is not
terminated by any other kind of graduation certificate or diploma.
The regulations also specify that --
- WRITTEN PRIOR NOTICE IS REQUIRED in accordance with
§300.503, because graduation from high school with a regular
diploma constitutes a change in placement (see §300.122(a)(3)).
School districts will be expected to provide the notice "a
reasonable time" before proposing to graduate a student, in
order to ensure that there is sufficient time for the parents
and student to plan for, or challenge, the pending graduation.
(See Analysis of Comments related to §300.122.)
- EVALUATION IS NOT REQUIRED BEFORE GRADUATION (i.e., the
provision requiring that a student be evaluated before
determining that he or she is no longer eligible under Part B
does not apply if the termination of eligibility is due to
graduation with a regular diploma or aging-out under State law).
(See §300.534(c).)
Methods of Ensuring Services -- Public and Private
Insurance
(§300.142)
- Noneducational Public Agencies -- May Not Disqualify
Eligible Service.
Proposed §300.142(b) has been
revised to specify that noneducational public agencies may not
disqualify an eligible service for Medicaid reimbursement because
the service is provided in an educational context.
- Conditions for Accessing Medicaid.
A new
§300.142(e)(3) has been added to provide that a public agency may
access Medicaid or other public insurance if the parents would
incur no financial costs, but may not require parents to sign up
for public insurance in order for the child to receive FAPE.
- Private Insurance.
Proposed §300.142(e)
has been redesignated as §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 parent consent consistent with the
definition of "consent" in §300.500(b)(1); and
(B) must obtain consent each time it proposes to access those
proceeds.
- Use of Part B Funds for Certain Costs.
A
new §300.142(g) has been added to permit the use of Part B funds
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 accessing parents' insurance, such as paying
deductible or co-pay amounts.
- Proceeds from Public or Private Insurance.
Proposed §300.142(f) has been redesignated as
paragraph (h), and revised to clarify that -
(A) 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.
Children with Disabilities in Public Charter
Schools3
(§300.312).
- Children and Parents Retain All Rights.
A
new §300.312 has been added to specify that children with
disabilities in public charter schools and their parents retain
all rights under this part, and that compliance with Part B is
required regardless of whether a public charter school receives
Part B funds.
- Responsibilities of Charter Schools, LEAs, and SEAs.
New §300.312(b)-(d) addresses the responsibilities of
each entity (subject to State law), as follows:
(A) Public charter schools that are LEAs and receive Part B
funds must ensure that the requirements of this part are met.
(B) If a public charter school is a school of an LEA that
receives Part B funds and includes other public schools, the LEA
must: (1) ensure that the requirements of this part are met; and
(2) meet the requirements of §300.241 (i.e., serve children with
disabilities attending charter schools, and provide Part B funds
to those schools in the same manner that it does for other
schools).
(C) If a charter school is neither an LEA receiving funding,
nor part of an LEA that receives funds, the SEA is responsible for
ensuring that the requirements are met.
Children Experiencing Developmental Delays
(§300.313).
- Provisions Related to "Developmental Delay."
A new §300.313 has been added to --
- specify the conditions that States and LEAs must follow in
using the term;
- clarify that for children with a diagnosed sensory
impairment (e.g. deafness) or other permanent disability, States
and LEAs may serve those children consistent with their
diagnosed disability, while using "developmental delay" for
other children aged 3 through 9; and
- make clear that a State may adopt a common definition of
"developmental delay" under Parts B and C of the Act.
Individualized Education Programs
(IEPs --
§§300.340-300.350)
- Staff Must Have Access to, and Be Informed About,
Child's IEP.
The final regulations provide that each
regular and special education teacher and service 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 under
the IEP, and of the specific accommodations, modifications, and
supports that must be provided for the child in accordance with
the IEP.
- Designating a Public Agency Representative on IEP
Team.
A new §300.344(d) has been added to 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 '300.344(a)(4) are satisfied.
- Other Individuals with Knowledge or Special Expertise.
A new §300.344(c) has been added to clarify that "The
determination of the knowledge or special expertise of any
individual [on the IEP team under §300.344(a)(6)] shall be made by
the party (parents or public agency) who invited the individual to
be a member of the IEP team." Each public agency must inform
parents about this provision in the notice informing them of the
IEP meeting. (see §300.345(b).)
- Considering Each Child's Performance on General
Assessments.
The final regulations clarify that, in
developing each child's IEP, the IEP team (in addition to
considering the strengths of the child and the results of
evaluations) also must consider "As appropriate, the results of
the child's performance on any general State or district-wide
assessments." (See §300.346(a)(1).)4
- 60-day Timeline Removed.
The substance of
the note following proposed §300.343 (which stated that "For most
children, it would be reasonable to expect that a public agency
offer services in accordance with an IEP within 60 days of receipt
of parent consent to initial evaluation) has been deleted.
- "Justification" of Transition Services -- Deleted.
Proposed §300.347(b)(2) (which required that if the
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.
- Giving Parents a Copy of IEP.
The final
regulations provide that parents must be given a copy of their
child's IEP without cost and without having to request it.." (See
§300.345(f).)
- Services Plans" in lieu of IEPs for Parentally-Placed
Children in Private Schools.
Proposed §300.350
(Children with disabilities in religiously-affiliated or other
private schools) has been deleted. A new §300.455(c) has been
added to require the development of "services plans" (in lieu of
IEPs) for private school children.
- IEP Accountability; Parent Right to Invoke Due
Process.
The final regulations make clear that
(1) each public agency, in addition to providing services, must
make a good faith effort to assist the child to achieve the goals
and objectives or benchmarks listed in the IEP; and
(2) "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 efforts required in paragraph (a) of this
section are not being made." (See §300.350.)
Children Enrolled by Their Parents When FAPE Is At Issue
(§300.403).
- Proposed §300.403 has been revised to clarify that -
- the provisions of §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;
- private school placement by parents must be appropriate (as
determined by a court or hearing officer);
- a parental placement does not need to meet State standards
that apply to education provided by the SEA or LEA in order to
be appropriate; and
- the reimbursement provisions of §300.403 apply 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 program.
Parentally-Enrolled Children in Private Schools
(§300.450-300.462)
- Child find must be comparable.
Proposed
§300.451 has been revised to specify that
(1) child find activities for private school children with
disabilities must be comparable to child find for children with
disabilities in public schools; and
(2) each LEA must consult with private school representatives
on how to carry out the child find requirements.
- Development and implementation of a "services plan."
Proposed §300.452 has been amended to incorporate
language from proposed §300.350 related to the SEA's
responsibility for ensuring that a "services plan" (in lieu of an
IEP) is developed and implemented for each private school child
with a disability who has been designated to receive services
under these regulations.
- Child Count.
A new §300.453(b) has been
added to provide that each LEA must consult with representatives
of private school children with disabilities on how to conduct the
annual count for those children; and (2) ensure that the count is
conducted on established count dates, and that the data are used
to determine the amount of Part B funds for serving those children
in the next fiscal year.
- Child Find Costs Can't Be Considered.
A
new §300.453(c) has been added to specify that the costs of child
find for private school children with disabilities may not be
considered in determining whether the LEA met the expenditures
requirement of §300.453.
- Additional Services Permissible.
A new
§300.453(d) has been added to clarify that SEAs and LEAs are not
prohibited from providing services beyond those required by this
part, consistent with State law or local policy.
- Consult on where services to be provided; meetings on
services plan.
Proposed §300.454 has been amended 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 lieu of an IEP), in accordance with '300.455
for each private school child designated to receive services; and
(3) ensure that a private school representative participates in
the meetings.
- Services Plans.
Proposed §300.455 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 IEP
content requirements of '300.347, and be developed, reviewed and
revised consistent with §300.342-300.346.
- Transportation Not Required Between Home and School.
Proposed §300.456 has been revised to make clear
that, although transportation must 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.
- Due Process Applies to Child Find, Including
Evaluations.
Proposed §300.457 (Complaints) has been
amended to specify that the due process procedures under this part
"apply to complaints that an LEA has failed to meet the [child
find] requirements of §300.451, including the [evaluation]
requirements of ''§§300.530-300.543."
Procedural Safeguards
- Independent Educational Evaluation (IEE).
The final regulations provide that
(1) upon request for an IEE, parents must be given information
about where an IEE may be obtained, and "the agency criteria
applicable for [IEEs]; and
(2) if a parent requests an IEE, a public agency may ask why
the parent objects to the public evaluation, but may not require
the explanation; and "the public agency may not unreasonably delay
either providing the [IEE] at public expense or initiating a due
process hearing to defend the public evaluation." (See §300.502.)
- Parental Consent.
The final regulations
on parental consent
(1) replace "consent" with "informed parent consent;"
(2) add "reevaluation" to the list of actions requiring
consent; and
(3) add that "A public agency may not use a parent's refusal to
consent to one service or activity...to deny the parent or child
any other service, benefit, or activity of the public agency,
except as provided by this part." (See §300.505.)
- Mediation.
The final regulations provide
that if a mediator is not selected on a random (e.g., a rotation)
basis from the State's list, both parties are involved in
selecting the mediator and agree with the selection of the
individual who will mediate. (See §300.506(b)2)(ii).)
- Change of Placement Based on Hearing Officer Decision.
The final regulations provide that if a State hearing
or review officer's decision agrees with the parent's position
that a change in the child's placement is appropriate, the
decision must be implemented at that point, even if the public
agency appeals that decision. This provision, which is consistent
with most of the court decisions that have addressed this
question, ensures that children will not remain in inappropriate
placements for prolonged periods of time while a public agency
appeals a decision in the parent's favor. (See §300.514(c).)
- Five Day Disclosure Means 5 "Business Days."
Proposed §300.509(a)(3) (Hearing rights) has been
revised to add "business days," to clarify that any party to a
hearing has the right to -- "Prohibit the introduction of any
evidence that has not been disclosed to that party at least 5
business days before the hearing;".
- Attorney's Fees.
The final regulations
include all of the provisions of section 615(i)(3)(C)-(G) of the
Act. (See §300.513).
Evaluation Procedures and Determination of Eligibility
- Comprehensive Evaluation.
The evaluation
procedures in §300.532 have been amended to provide that each
child's evaluation must be sufficiently comprehensive to identify
all of the child's special education and related services needs,
including any needs the child has that are commonly linked to a
disability other than the disability in which the child has been
classified. (See §300.532(h).)
- Assessing Children with Limited English Proficiency.
A new §300.532(a)(2) has been added, to provide that
"Materials and procedures used to assess a child with limited
English proficiency are selected and administered to ensure that
they measure the extent to which the child has a disability and
needs special education, rather than measuring the child's English
language skills."
- Ineligibility -- Lack of Instruction, or Limited
English Proficiency.
Proposed §300.534 has been
revised to clarify that a child may not be determined eligible
under this part, if
"(1) The determinant factor for that eligibility determination
is --
- Lack of instruction in reading or math; or
- limited English proficiency; and
(2) the child does not otherwise meet the eligibility criteria
under §300.7(a)."
- Assessments Under Non-standard Conditions.
A new §300.532(c)(2) has been added to provide that
"If an assessment is not conducted under standard conditions, a
description of the extent to which it varied from standard
conditions (e.g., the qualifications of the person administering
the test or the method of test administration) must be included in
the evaluation report.
- Obtaining Parent Input.
Proposed
§300.535(a)(1) 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.
- Group May Review Existing Data Without a Meeting.
A new §300.533(b) (Conduct of review) has been added,
to clarify that the group reviewing existing data may conduct that
review without a meeting.
LRE -- Placements
(§300.552)
- Reference to Preschool.
Proposed
§300.552(a) has been revised to add "including a preschool child
with a disability" after the phrase "In determining the
educational placement of a child with a disability."
- Limitations on Removal from Age-appropriate Regular
Classroom.
A new §300.552(e) has been added that
prohibits the removal of child with a disability from an
age-appropriate regular classroom solely because of needed
modifications in the general curriculum.
State Complaint Procedures
- Complaints Received from Another State.
Proposed §300.660(a) has been revised to
(1) specify that the each SEA's procedures for resolving
complaints must include complaints "filed by an organization or
individual from another State...;" and
(2) make needed technical changes for adding a new paragraph
(b), below.
- Remedies for Denial of Appropriate Services.
A new §300.660(b) has been added 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 how to remediate the denial of those services, including,
as appropriate, the awarding of monetary reimbursement or
corrective action, which could include compensatory services or
other corrective action appropriate to the needs of the child.
- Complaints vs Due Process Hearings.
A new
§300.661(c) 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.
Definitions
- Adding "ADD/ADHD" to "Child with a Disability."
"Attention deficit disorder" and "attention deficit
hyperactivity disorder" have been added as conditions that could
render a child eligible under the "other health impairment"
category. (See §300.7(c)(9).)
- Definitions of "Business Day" and "School Day" Added.
The proposed definition of "Day" in §300.8 has been
redesignated as §300.9, and retitled "Day, business day; school
day." The definition of "day" (i.e., "calendar day, unless
otherwise indicated as business day or school day") remains
unchanged. However, the following definitions have been
added:
(1) "business day" (i.e., "Monday through Friday, except for
Federal and State holidays..."); and
(2) "school day" (i.e., "any day, including a partial day, that
all children are in attendance at school for instructional
purposes...").
- "Parent" -- Use of Foster Parents.
Proposed §300.19 (redesignated §300.20(b)) has been
revised to permit States, in certain circumstances, to use foster
parents as "parents" under the Act without amending relevant State
statutes.
- "Travel Training."
"Travel training" has
been added to the definition of "special education," and defined
to mean: "Providing instruction, as appropriate, to children with
significant cognitive disabilities and any other children 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)." (See §300.26(b)(4).)
General Changes
- All Notes in NPRM Have Been Removed from the
final regulations, and have been disposed of, as follows: The
substance of the notes has been
(1) added to the text of the regulations if it was considered
to be a requirement;
(2) added to Appendix A (formerly Appendix C) if it was
directly relevant to the Notice of Interpretation on IEPs; or
(3) incorporated into the discussion of applicable comments in
the Analysis of Comments and Changes. All other notes have been
deleted. (See Attachment 3, described below, regarding the
disposition of each note in the NPRM.)
- Two "Appendices" have been included in the
final regulations:
Appendix A -- Notice of Interpretation on
IEPs; and
Appendix B -- Index to IDEA-Part B regulations.
- Three "Attachments" have been added, as
follows:
Attachment 1 -- Analysis of Comments and Changes;
Attachment 2 -- Final Regulatory Flexibility Analysis; and
Attachment 3 -- Table showing "Disposition of NPRM Notes in
Final Regulations ..."
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.
2 The description of changes made to specific
sections of the regulations since the NPRM does not include all
changes made to those sections, nor does it include all changes in
which teachers may have an interest. (For a more complete
description, see "Major Changes..." in the preamble to the final
regulations.)
3Public charter schools
are also addressed under §'300.2 (Applicability of this part);
300.10 (definition of Educational service agency); 300.18
(definition of LEA); and 300.241 (Treatment of charter schools and
their students).
4The discussion of §300.343 in Attachment
1 to the final regulations states that (A) although timely
provision of services by a public agency is critical, setting a
specific timeline could have a negative effect; and (B) while
most States may be able to meet a 60 day timeline (and the
Department considers that to be reasonable), it is recognized that,
for some children, the process may take longer to complete, and for
others, it could be done in a shorter period of time.
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