12406 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

DEPARTMENT OF EDUCATION published a notice of proposed disorder (ADD) may be identified under rulemaking (NPRM) in the Federal the category of other health impairment; 34 CFR Parts 300 and 303 Register (62 FR 55026) to amend the Section 300.19—recognizing that regulations governing the Assistance to foster parents may, under certain RIN 1820±AB40 States for Education of Children with circumstances and if permitted under Assistance to States for the Education Disabilities program (part 300), the State law, qualify as a ‘‘parent’; Section 300.121(c)—recognizing that of Children With Disabilities and the Preschool Grants for Children with if a child’s third birthday is in the Early Intervention Program for Infants Disabilities program (part 301), and the summer, the child’s IEP team and Toddlers With Disabilities Early Intervention Program for Infants and Toddlers with Disabilities (part determines the date when services begin AGENCY: Office of Special Education and 303). A key purpose of the NPRM was under the child’s IEP or IFSP. (The team Rehabilitative Services, Department of to implement changes made by the must develop the IEP or IFSP by the Education. IDEA Amendments of 1997 (Pub. L. child’s third birthday.); ACTION: Final regulations. 105–17). Section 300.122(a)(3)—recognizing Since that time, the Department has that graduation with a regular high SUMMARY: The Secretary issues final published final regulations for both the school diploma ends the child’s regulations for the Assistance to States Preschool Grants program (63 FR 29928, eligibility under Part B; for Education of Children with June 1, 1998) and the Early Intervention Section 300.309—recognizing that Disabilities program under Part B of the program for Infants and Toddlers with extended school year services must be Individuals with Disabilities Education Disabilities (63 FR 18297, April 14, provided if necessary for the provision Act (IDEA; Part B) and the Early 1998), to incorporate the requirements of a free appropriate public education to Intervention Program for Infants and added to those programs by Pub. L. 105– the child; and Toddlers with Disabilities under Part C 17. On April 14, 1998, a document was Section 300.519—identifying what of the Act (Part C). These regulations are published in the Federal Register constitutes a change of placement for needed to implement changes made to inviting comment on whether the disciplinary purposes under these Part B by the IDEA Amendments of regulations for the Early Intervention regulations. In addition, changes have been made 1997; make other changes to the part B program for Infants and Toddlers with to the requirements on State complaint regulations based on relevant, Disabilities should be further amended procedures in the regulations for Part B longstanding policy guidance; and (63 FR 18297). (A subsequent document (§§ 300.660–300.662), and conforming revise the requirements on State reopening the comment period was changes have been made in the Part C complaint procedures under both the published on August 14, 1998 (63 FR regulations (§§ 303.510–303.512). Part B and Part C programs. 43866)). DATES: These regulations take effect on The final regulations in this Analysis of Comments and Changes May 11, 1999. However, compliance publication are needed to conform the In response to the Secretary’s with these regulations will not be existing regulations under Part B of the invitation to comment on the NPRM required until the date the State receives Act to the new statutory requirements published in the Federal Register on FY 1999 funding (expected to be added by Pub. L. 105–17, including (1) October 22, 1997 (62 FR 55026), about available for obligation to States on July amending requirements under prior law 6,000 individuals, public agencies, and 1, 1999) under the program or October related to areas such as State and local organizations submitted written or oral 1, 1999, whichever is earlier. Affected eligibility, evaluation, and comments. An analysis of the public parties do not have to comply with the individualized education programs comments received, including a information collection requirements (IEPs), and (2) incorporating new description of the changes made in the contained in the regulations listed requirements in the Act (e.g., those proposed regulations since publication under the Paperwork Reduction Act of relating to discipline, performance goals of the NPRM, is published as 1995 section of this preamble until the and indicators, participation of children Attachment 1 to these final regulations. Department publishes in the Federal with disabilities in State and district- The perspectives of individuals and Register the control number assigned by wide assessments, procedural groups of parents, teachers, related the Office of Management and Budget safeguards notice, and mediation). service providers, State and local (OMB) to these information collection The regulations have also been officials, individuals with disabilities requirements. Publication of the control amended to incorporate relevant and members of Congress were very numbers notifies the public that OMB longstanding interpretations of the Act important in helping to identify where has approved these information that have been addressed in changes were necessary in the proposed collection requirements under the nonregulatory guidance in the past and regulations, and in formulating many of Paperwork Reduction Act of 1995. are needed to ensure a more meaningful those changes. The detailed, thoughtful FOR FURTHER INFORMATION CONTACT: implementation of the Act and its comments of so many individuals and Thomas Irvin or JoLeta Reynolds (202) regulations for children with organizations clearly demonstrated a 205–5507. Individuals who use a disabilities, parents, and public high level of commitment to making telecommunications device for the deaf agencies. These interpretations are sure that the IDEA and its regulations (TDD) may call (202) 205–5465. based on the statutory provisions of the make a real difference in the day-to-day Individuals with disabilities may IDEA that were in effect prior to the education of our children. In light of the obtain this document in an alternate IDEA Amendments of 1997 and that comments received, a number of format (e.g., Braille, large print, were not changed by those significant changes are reflected in these audiotape, or computer diskette) on Amendments. Examples of provisions of final regulations. request to Katie Mincey, Director of the the regulations that incorporate prior Alternate Formats Center. Telephone: Department interpretations of the statute Effective Date of These Regulations (202) 205–8113. include: These regulations take effect on May SUPPLEMENTARY INFORMATION: On Section 300.7(c)(9)—recognizing that 11, 1999. As these regulations were not October 22, 1997, the Secretary some children with attention deficit in effect at the time Federal fiscal year

VerDate 03-MAR-99 17:45 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm01 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12407

(FY) 1998 funds (funds for use during notes considered to be directly relevant ADHD, the phrase ‘‘limited strength, school year 1998–99) became available to the ‘‘Notice of Interpretation’’ on IEP vitality, or alertness’’ includes ‘‘a child’s for obligation to States, compliance with requirements has been added to the text heightened alertness to environmental the requirements of these regulations, of that notice in Appendix A to these stimuli that results in limited alertness that are not statutory requirements or final regulations. The substance of any with respect to the educational provisions of pre-existing regulations, note considered to provide clarifying environment.’’ will not be mandatory for this grant information or useful guidance has been • The proposed definition of ‘‘Day’’ year. When either the FY 1998 funds incorporated into the discussion of the (§ 300.9) has been retitled ‘‘Day; that are unobligated by States and applicable comments in the ‘‘Analysis business day; school day,’’ and school districts become carryover funds of Comments and Changes’’ (see definitions of ‘‘business day’’ and (October 1, 1999) or, if earlier, the State Attachment 1 to these final regulations). ‘‘school day’’ have been added. receives FY 1999 funding (expected to All other notes have been deleted. • The proposed definition of be available for obligation to States July • Appendix C in the NPRM (‘‘Notice ‘‘educational service agency’’ (§ 300.10) 1, 1999) compliance with these final of Interpretation on IEPs) has been has been revised to clarify that the term regulations is required. This will enable redesignated as ‘‘Appendix A’’ in these ‘‘[i]ncludes entities that meet the all parties to become familiar with the final regulations; and a new Appendix definition of ‘‘intermediate educational new regulations without requiring B—Index to IDEA Part B Regulations unit’’ in section 602(23) of IDEA as in changes that could interrupt school or has been added. effect prior to June 4, 1997.’’ program operations in the middle of a • Three attachments have also been • The proposed definition of ‘‘general grant year. However, States and school added: Attachment 1—Analysis of curriculum’’ in § 300.12 of the NPRM districts may adopt and use these Comments and Changes; Attachment and the explanatory note following that regulations when they are effective, and 2—Final Regulatory Flexibility section have been deleted. The term is are encouraged, to the greatest extent Analysis; and Attachment 3—Table explained where it is used in § 300.347 possible, to start to implement them as showing ‘‘Disposition of NPRM Notes in and in Appendix A regarding IEP soon as possible during this school year. Final Part 300 and 303 Regulations.’’ requirements. • In any case, the statutory requirements However, these attachments will not be The proposed definition of ‘‘local of the Individuals with Disabilities codified in the Code of Federal educational agency’’ (§ 300.18) has been Education Act Amendments of 1997 Regulations. amended to clarify, consistent with new statutory language concerning public (IDEA Amendments of 1997) are in 2. Changes in Subpart A—General effect and must be complied with charter schools, that the term includes • throughout the 1998–99 school year. In Proposed § 300.2 (Applicability of public charter schools that are addition, States and school districts this part to State, local, and private established as an LEA under State law. • must comply with all requirements of agencies) has been revised to include The proposed definition of ‘‘native the Part 300 regulations that were in ‘‘public charter schools that are not language’’ (§ 300.19) has been amended effect at the beginning of this school otherwise included as local educational to specify that (1) in all direct contact year unless inconsistent with the IDEA agencies (LEAs) or educational service with a child (including evaluation of the Amendments of 1997 or these final agencies (ESAs) and are not a school of child), the native language is the regulations. Applications for grants for an LEA or ESA’’ and to specify that the language normally used by the child in FY 1999 funds must be consistent with rules of Part 300 apply to all public the home or learning environment, and the requirements of these final agencies in the State providing special (2) for an individual with deafness or regulations. education and related services. blindness, or with no written language, • Most of the provisions of the IDEA Consistent with the general the mode of communication is that Amendments of 1997 relating to Parts B decision to not use notes in these final normally used by the individual (such and C of the Act have been in effect regulations, proposed Note 1 as sign language, braille, or oral since enactment, June 4, 1997, with a immediately preceding § 300.4 in the communication). • few provisions, such as the new Part B NPRM, (which included a list of terms The proposed definition of ‘‘parent’’ provisions concerning individualized defined in specific subparts and has been amended to (1) add language education programs and the sections of the regulations) has been clarifying that the term means a natural comprehensive system of personnel deleted and the terms included as part or adoptive parent of a child and a development, taking effect on July 1, of an index to these regulations (see person acting in the place of a parent 1998. Therefore, States and school Appendix B). (such as a grandparent or stepparent • districts already are familiar with the The proposed definition of ‘‘child with whom the child lives, or a person statutory provisions of the IDEA with a disability’’ (§ 300.7(a)) has been who is legally responsible for the child’s Amendments of 1997 to which they revised to clarify that if a child with a welfare), and (2) permit States in certain must comply. disability needs only a related service circumstances to use foster parents as and not special education, the child is parents under the Act unless prohibited Major Changes in the Regulations not eligible under this part; but if the by State law. The following is a summary of the related service is considered to be • The proposed definition of ‘‘public major substantive changes from the special education under State standards, agency’’ (§ 300.22) has been amended to NPRM in these final regulations: the child would be eligible. add to the list of examples of a public • The proposed definition of ‘‘other agency ‘‘public charter schools that are 1. General Changes health impairment’’ (‘‘OHI’’), at not otherwise included as LEAs or ESAs • All notes in the NPRM related to § 300.7(c)(9), has been amended to (1) and are not a school of an LEA or ESA’’, the sections or subparts covered in these add ‘‘attention deficit disorder’’ (ADD) consistent with new statutory language final regulations have been removed. and ‘‘attention deficit hyperactivity concerning public charter schools. The substance of any note that should disorder’’ (ADHD) to the list of • The proposed definition of ‘‘parent be required for proper implementation conditions that could render a child counseling and training,’’ under the of the Act has been added to the text of eligible under OHI, and (2) clarify that, definition of ‘‘related services,’’ these final regulations. Information in with respect to children with ADD/ (§ 300.24(b)(7)) has been amended to

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12408 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations add that the term also means ‘‘helping homeless children), and to children who (3) Proposed § 300.142(e) has been parents to acquire the necessary skills are suspected of being a child with a added to make clear that a public that will allow them to support the disability under this part, even though agency may use a child’s public implementation of their child’s IEP or they are advancing from grade to grade, insurance to provide or pay for services IFSP.’’ and (2) add needed clarifications of required under Part B, with certain • The proposed definition of ‘‘special requirements relating to child find for limitations. The public agency (A) may education’’ (§ 300.26) has been amended children from birth through age 2 when not require parents to sign up for public to add ‘‘travel training’’ as a special the SEA and lead agency for the Part C insurance in order for the child to education service and to include a program are different. receive FAPE, (B) may not require definition of the term. • Proposed § 300.136 (Personnel parents to incur out-of-pocket expenses standards) has been amended as in order to file the claim for services 3. Changes in Subpart B—State and follows: under Part B, and (C) may not use the Local Eligibility (1) The proposed definition of child’s benefits under a public State Eligibility ‘‘profession or discipline’’ in insurance program if that use would • § 300.136(a)(3) has been revised to decrease available lifetime coverage or Proposed § 300.110 (Condition of clarify that the term ‘‘specific assistance) has been amended to more any other insured benefit, result in the occupational category’’ is not limited to family paying for services that would explicitly state what is required for traditional categories. compliance with the State eligibility have been covered by the public (2) The policies and procedures in insurance and are required for the child requirements. proposed § 300.136(b) have been • Proposed § 300.121 (FAPE) has outside of the time the child is in expanded to provide that (A) each State school, increase premiums or lead to been amended to specify (1) may determine the specific occupational requirements for providing FAPE for discontinuation of services or risk loss categories required in the State and of eligibility for home and community- children with disabilities beginning at revise or expand them as needed; (B) age 3; (2) that services need not be based waivers due to aggregate health- nothing in these regulations requires a related expenditures. provided during periods of removal State to establish a specific training under § 300.520(a)(1) to a child with a (4) The proposed provisions on standard (e.g., a masters degree); and (C) children covered by private insurance disability who has been removed from a State with only one entry-level his or her current placement for 10 have been redesignated as § 300.142(f), academic degree for employment of and revised to provide that a public school days or less in that school year, personnel in a specific profession or if services are not provided to a child agency (A) may access a parent’s private discipline may modify that standard, as insurance proceeds only if the parent without disabiliities who has been necessary, to ensure the provision of similarly removed; (3) the standards that provides informed consent, and (B) FAPE to all eligible children. must obtain consent each time it are used to determine appropriate (3) Proposed § 300.136(g) (State policy proposes to access those proceeds, and services for children with disabilities to address shortage of personnel) has inform the parents that their refusal to who have been removed from their been amended by adding provisions that permit such access does not relieve the current placement for more than 10 (A) if a State has reached its established public agency of its responsibility to school days in a school year; (4) that date for a specific profession or provide all required services at no cost LEAs must ensure that FAPE is discipline, it may still exercise the to the parents. available to any child with a disability option in redesignated § 300.136(g)(1); who needs special education and and (B) each State must have a (5) A new § 300.142(g) has been added related services, even though the child mechanism for serving children with to permit the use of part B funds to is advancing from grade to grade; and disabilities if instructional needs exceed ensure FAPE for (A) the cost of required (5) that the determination that a child available (qualified) personnel, services under these regulations if the who is advancing from grade to grade is including addressing those shortages in parents refuse consent to use public or eligible under this part must be made on its comprehensive system of personnel private insurance, and (B) the costs of an individual basis by the group within development if the shortages continue. using the parents’ insurance, such as the LEA responsible for making • Proposed § 300.138 (Participation paying deductible or co-pay amounts. eligibility determinations. in assessments) has been amended to (6) Proposed § 300.142(f) (Proceeds • Proposed § 300.122 (Exception to require appropriate modifications in the from public or private insurance) has FAPE for certain ages) has been administration of the assessments, if been redesignated as paragraph (h), and amended to (1) specify situations in necessary. revised to clarify that (A) the insurance which the exception to FAPE for • Proposed § 300.142 (Methods of proceeds received by a public agency do students with disabilities in adult ensuring services) has been amended as not have to be returned to the prisons does not apply, and (2) make follows: Department or dedicated to the part B clear that graduation from high school (1) Proposed § 300.142(b) (Obligation program; and (B) funds expended by a with a regular diploma is a change in of noneducational public agencies) has public agency from reimbursements of placement requiring notice in been revised to specify that those Federal funds will not be considered accordance with § 300.503. (A related agencies may not disqualify an eligible State or local funds for purposes of State change to § 300.534(c) makes clear that service for Medicaid reimbursement or local maintenance of effort. a reevaluation is not required for because the service is provided in an (7) A new § 300.142(i) has been added graduation with a regular high school educational context. to specify that nothing in Part B should diploma or termination of eligibility for (2) Proposed § 300.142(b)(2) be construed to alter the requirements exceeding the age eligibility for FAPE (Reimbursement for services by imposed on a State medicaid agency, or under State law.) noneducational public agency) has been any other agency administering a public • Proposed § 300.125 (Child find) has revised to require that an LEA must insurance program by Federal statute, been revised to (1) clarify that the child provide services in a timely manner if regulations or policy under Title XIX or find requirements apply to highly a public noneducational agency fails to Title XXI of the Social Security Act, or mobile children (e.g., migrant and provide or pay for the services. any other public insurance program.

VerDate 03-MAR-99 17:45 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm01 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12409

• Proposed § 300.148 (Public • Proposed § 300.308 (Assistive teachers and service providers and that participation) has been amended to technology) has been amended to clarify teacher and service provider with clarify that a State will be considered to that, on a case-by-case basis, the use of responsibility for its implementation be be in compliance with this section if the school-purchased assistive technology informed of his or her specific State has subjected the policy or devices in a child’s home or in other responsibilities under the IEP and of the procedure to a public participation settings is required if the child’s IEP specific accommodations, process that is required by the State for team determines that the child needs modifications, and supports that must other purposes and is comparable to and access to those devices in order to be provided for the child under that IEP. consistent with the requirements of receive FAPE. • Proposed § 300.342(d) has been §§ 300.280–300.284. • Proposed § 300.309 (Extended revised to state that all IEPs developed, • Proposed § 300.154 (Maintenance of school year (ESY) services) has been reviewed, or revised on or after July 1, State financial support) has been amended to specify that (1) ESY services 1998 must meet the requirements of amended to clarify that maintenance of must be provided only if a child’s IEP §§ 300.340–300.350. • State financial support can be team determines, on an individual basis, Proposed § 300.343 (IEP meetings) demonstrated on either a total or per- that the services are necessary for the has been revised to clarify that special capita basis. provision of FAPE to the child, and (2) education and related services must be an LEA may not limit ESY services to available to the child within a LEA Eligibility—Specific Conditions particular categories of disability, or reasonable period of time following • Proposed § 300.231 (Maintenance of unilaterally limit the type, amount, or receipt of parent consent to an initial effort) has been amended to set out the duration of those services. evaluation. • standard for meeting the maintenance of • A new § 300.312 (Children with Proposed § 300.344 (IEP Team) has effort requirement. disabilities in public charter schools) been amended to (1) clarify that the • Proposed § 300.232 (Exception to has been added to (1) specify that these determination of knowledge or special maintenance of effort) has been children and their parents retain all expertise of ‘‘other individuals’’ under amended to specify that the exception rights under these regulations, and that § 300.344(a)(6) is made by the party who related to voluntary retirement or compliance with part B is required has invited the individual to be a resignation of personnel must be in full regardless of whether a public charter member of the IEP team; and (2) permit conformity with existing school board school receives Part B funds; and (2) a public agency to designate another policies, any applicable collective address the responsibilities of the public agency member of the IEP team bargaining agreement, and applicable following: public charter schools that to also serve as the agency State statutes. are LEAs; LEAs if the charter school is representative, if the criteria in • a school in the LEA; and the SEA if the § 300.344(a)(4) are satisfied. Proposed § 300.234 (Schoolwide • programs under title I of the ESEA) has charter school is not an LEA or a school Proposed § 300.345 (Parent of an LEA. participation) has been revised to clarify been amended to make clear that an • LEA that uses Part B funds in A new § 300.313 (Children that (1) the public agency’s notice to schoolwide program schools must experiencing developmental delays) has parents about the IEP meeting must ensure that children with disabilities in been added to (1) clarify the inform them about the ability of either those schools receive services in circumstances under which the party to invite individuals with accordance with a properly developed designation ‘‘developmental delay’’ may knowledge or special expertise to the IEP and are afforded all applicable be used by a State or an LEA in the meeting, consistent with § 300.344(a)(6) rights and services guaranteed under the State; (2) permit a State or LEA that and (c); and (2) the agency must give the IDEA. elects to use that term to also use one parents a copy of their child’s IEP. or more of the disability categories • Proposed § 300.346 (Development, 4. Changes in Subpart C—Services described in § 300.7 for any child aged review, and revision of IEP) has been revised to clarify that, in developing Free Appropriate Public Education 3 through 9 who has been determined to have a disability and who, by reason each child’s IEP, the IEP team also must • Proposed § 300.300 (Provision of thereof, needs special education; and (3) consider ‘‘as appropriate, the results of FAPE) has been amended to specify that permit a State to adopt a common the child’s performance on any general the State must ensure that the child find definition of developmental delay under State or district-wide assessment requirements of § 300.125 are Parts B and C of the Act. programs. implemented by public agencies • Proposed § 300.347 (Content of IEP) throughout the State. Proposed Individualized Education Programs has been amended to (1) clarify that § 300.300 also has been amended to (IEPs) ‘‘general curriculum’’ is the same specify that (1) the services provided to • Proposed § 300.341 (retitled curriculum as for nondisabled children, the child under this part address all of ‘‘Responsibility of SEA and other public and (2) delete the requirement that, if the child’s identified special education agencies for IEPs) has been revised to (1) the IEP team determines that services and related services needs, and (2) are consistent with provisions regarding are not needed in one or more of the based on the child’s identified needs parentally-placed children with areas specified in the definition of and not the child’s disability category. disabilities in religious or other private transition services (§ 300.29), the IEP • Proposed § 300.301 (FAPE— schools (see changes to Subpart D), and must include a statement to that effect methods and payments) has been (2) to clarify that the section also applies and the basis upon which the amended to add a provision requiring to the SEA if it provides direct services determination was made. that the State must ensure that there is to children with disabilities as well as • Proposed § 300.350 (Children with no delay in implementing a child’s IEP, other public agencies that provide disabilities in religiously-affiliated or including any case in which the special education either directly, by other private schools) has been deleted. payment source for providing or paying contract, or through other means. A new § 300.455(c) has been added to for the special education and related • Proposed § 300.342(b) has been specify LEA responsibilities regarding services to the child is being revised to provide that the child’s IEP the development of ‘‘services plans’’ for determined. must be accessible to each of the child’s private school children.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12410 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

• Proposed § 300.351 (IEP— school placement by the parents must a ‘‘services plan,’’ in accordance with accountability) has been redesignated as be appropriate (as determined by a court § 300.455, for each private school child § 300.350, and revised to provide that or hearing officer) in order to be eligible with a disability who has been (1) each public agency must make a for reimbursement, (3) a parental designated to receive services under this good faith effort to assist the child to placement does not need to meet State part; and (3) ensure that a representative achieve the goals and objectives or standards that apply to education of the private school participates in the benchmarks listed in the IEP; (2) a State provided by the SEA and LEAs in order meetings. or public agency is not prohibited from to be appropriate; and (4) the • Proposed § 300.455 (Services establishing its own accountability reimbursement provisions of § 300.403 provided) has been revised to specify systems regarding teacher, school, or also apply if parents of a child with a that (1) each private school child with agency performance; and (3) ‘‘[n]othing disability who previously received a disability who has been designated to in this section limits a parent’s right to special education and related services receive Part B services must have a ask for revisions of the child’s IEP or to under the authority of a public agency services plan, and (2) the plan must, to invoke due process procedures if the enroll the child in a private preschool the extent appropriate, meet the parent feels that efforts required in program. requirements of § 300.347 with respect paragraph (a) of this section are not Children With Disabilities Enrolled by to the services provided, and be being met.’’ Their Parents in Private Schools developed, reviewed and revised consistent with §§ 300.342-300.346. • Direct Services by SEA Proposed § 300.451 (‘‘Child find for • Proposed § 300.456 (Location of • Proposed § 300.360 (Use of LEA private school children with services) has been revised to make clear allocation for direct services) has been disabilities’’) has been revised to specify that, while transportation might be amended to clarify that (1) if an LEA that (1) child find activities for those provided between a child’s home or does not elect to apply for its Part B children must be comparable to child private school and a service site if funds, the SEA must use those funds to find activities for children with necessary for the child to benefit from ensure that FAPE is available to all disabilities in public schools, and (2) or participate in the services offered, eligible children residing in the LEAs must consult with representatives LEAs are not required to provide jurisdiction of the LEA; (2) if the local of parentally-placed private school transportation between the child’s home allotment is not sufficient to ensure students with disabilities on how to and private school. FAPE to all eligible children within the conduct child find activities for that • Proposed § 300.457 (Complaints) LEA, the SEA must ensure that FAPE is population in a manner that is has been revised to specify that the due available to those children; and (3) the comparable to those activities for public process procedures under this part SEA may use whatever funding sources school children. apply to child find activities for private • Proposed § 300.452 (retitled are available in the State to ensure that school children with disabilities, ‘‘Provision of services—basic all eligible children within each LEA including evaluations. requirement’’) has been amended to add receive FAPE (see § 300.301). a new provision related to the SEA’s 6. Changes in Subpart E—Procedural • Proposed § 300.370 (Use of SEA responsibility for ensuring that a Safeguards allocations) has been amended to clarify services plan is developed for each that, of the Part B funds it retains for Due Process Procedures for Parents and private school child with a disability other than administration, the SEA may Children who has been designated to receive use the funds either directly, or services under these regulations. • Proposed § 300.500 (General distribute them to LEAs on a • Proposed § 300.453 responsibility of public agencies; competitive, targeted, or formula basis. (‘‘Expenditures’’) has been revised to definitions) has been amended as 5. Changes in Subpart D—Children in specify that (1) each LEA must consult follows: Private Schools with representatives of private school (1) The proposed definition of children with disabilities to decide how ‘‘consent’’ (300.500(b)(1)) has been Children With Disabilities in Private to conduct the annual count of the revised to clarify that a revocation of Schools Placed or Referred by Public number of those children; (2) the LEA consent does not have a retroactive Agencies must ensure that the count is conducted effect if the action consented to has • Proposed § 300.401 by specified dates, and that the data are already occurred. (‘‘Responsibility of SEA’’) has been used to determine the amount of Part B (2) The proposed definition of revised to provide that a child with a funds to be earmarked for private school ‘‘evaluation’’ (§ 300.500(b)(2)) has been disability placed by a public agency as children in the next fiscal year; (3) the revised by deleting the last sentence of the means of providing FAPE to the costs of child find activities for private the definition, to ensure that evaluations child must receive an education that school children with disabilities may may include a review of a child’s meets the standards that apply to the not be considered in determining performance on a test or procedures SEA and LEA. whether the LEA met the expenditures used for all children in a school, grade, requirement of this section; and (4) or class. Children With Disabilities Enrolled by SEAs and LEAs are not prohibited from • Proposed § 300.501 (Opportunity to Their Parents in Private Schools When providing services to private school examine records; parent participation in FAPE Is at Issue children with disabilities beyond those meetings) has been amended to (1) • Proposed § 300.403 (‘‘Placement of required by this part, consistent with delete the word ‘‘all’’ from children by parent if FAPE is at issue’’) State law or local policy. § 300.501(a)(2); (2) delete the definition has been revised to clarify that (1) the • Proposed § 300.454 (Services of ‘‘meetings’’ but provide that the term provisions of §§ 300.450–300.462 apply determined) has been revised to specify does not include certain conversations to children with disabilities placed that each LEA must (1) consult with or preparation for a meeting and (3) voluntarily in private schools, even private school representatives on where clarify that each public agency must though the public agency made FAPE services will be provided; (2) conduct ‘‘make reasonable efforts’’ related to available to those children; (2) private meetings to develop, review, and revise parental participation in group

VerDate 03-MAR-99 17:45 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm01 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12411 discussions relating to the educational action ‘‘refused’’ as well as that conducted a functional behavioral placements of their child. proposed by the public agency. assessment and implemented a • Proposed § 300.502 (Independent • Proposed § 300.509 (Hearing rights) behavioral intervention plan for the educational evaluation (IEE)) has been has been revised to clarify that, in child the purpose of the IEP meeting is amended to (1) add that, upon request paragraph (a)(3), the disclosure is to develop an assessment plan. As soon for an IEE, parents must be given required at least 5 ‘‘business’’ days as practicable after completion of the information about agency criteria before the hearing. plan, the LEA must then convene an IEP applicable for IEEs; (2) clarify, in • Proposed § 300.510 (Finality of meeting to develop appropriate § 300.502(e)(1), that the criteria under decision; impartiality of review) has behavioral interventions to address the which an IEE is obtained must be the been amended to (1) make the reference child’s behavior. If a child already has same as that of the public agency ‘‘to the to written findings and decision in a behavioral intervention plan, the extent such criteria are consistent with § 300.510(b)(2)(vi) consistent with purpose of the IEP meeting is to review the parent’s right to an IEE,’’ and (3) § 300.509(a)(5), and (2) allow the choice the plan and its implementation. explain that an explanation of parent of ‘‘electronic or written findings of fact (3) Proposed § 300.520(c) has been disagreement with an agency evaluation and decision.’’ deleted and replaced with a provision • may not be required and the public Proposed § 300.513 (Attorneys’ that requires that if a child with a agency may not delay either providing fees) has been amended to include all of disability who has a behavioral the IEE at public expense or, the provisions of section 615(i)(3)(C)-(G) intervention plan and has been removed alternatively, initiating a due process of the Act. for more than 10 school days in a school hearing. • Proposed § 300.514(c) has been • year subsequently is subjected to a Proposed § 300.503 (Prior notice by amended to provide that a decision by removal that is not a change of the public agency; content of notice) has a State hearing or review officer that is placement, the child’s IEP team been amended to delete the provision in in agreement with the parents members shall review the behavioral § 300.503(b)(8) (related to informing constitutes an agreement for purposes of intervention plan, and meet to modify it parents about the State complaint pendency. • or its implementation if one or more procedures). (See § 300.504(b).) Proposed § 300.515 (Surrogate team members think modifications are • Proposed § 300.504 (Procedural parents) has been revised to permit needed. safeguards notice) has been amended to employees of nonpublic agencies that • Proposed § 300.521(d) has been add State complaint procedures under have no role in educating a child to modified to make clear that the hearing §§ 300.660-300.662 to the items serve as surrogate parents. officer determines the appropriateness included in the notice. Discipline Procedures • Proposed § 300.505 (Parental • A new § 300.519 (Change of of the interim alternative educational consent) has been amended to (1) refer placement for disciplinary removals) setting proposed by school personnel to ‘‘informed parent consent;’’ (2) add has been added regarding change of who have consulted with the child’s ‘‘all reevaluations’’ to the list of actions special education teacher. placement in the context of removals • requiring consent (see under §§ 300.520–300.529. Proposed § 300.522 (Determination § 300.505(a)(1)(i)); (3) delete paragraph • Proposed § 300.520 (Authority of of setting) has been amended to (1) (a)(1)(iii), and add a new paragraph school personnel) has been amended as specify that the interim alternative (a)(3) to specify that parental consent is follows: educational setting referred to in not required before reviewing existing (1) Proposed § 300.520(a)(1) has been § 300.520(a)(2) must be determined by evaluation data as a part of an revised to specify that to the extent the IEP team; and (2) clarify that the evaluation or reevaluation or for removal would be applied to children services and modifications to address administering a test used with all without disabilities, school personnel the child’s behavior are designed to children unless consent is required of may order the removal of a child with prevent the behavior from recurring. • all parents; and (4) specify, in paragraph a disability from the child’s current Proposed § 300.523 (Manifestation (e), that a public agency may not use a placement for not more than 10 determination review) has been parental refusal to consent to one consecutive school days and additional amended as follows: service or benefit under paragraphs (a) removals of not more than 10 (1) Proposed § 300.523(a) has been and (d) to deny the parent or child consecutive school days in that same revised to (1) specify that the another service or benefit. school year for separate incidents of manifestation determination review is • Proposed § 300.506 (Mediation) has misconduct as long as they do not done regarding behavior described in been revised to (1) add a new constitute a change in placement under §§ 300.520(a)(2) and 300.521, or if a § 300.506(b)(2) to specify that the § 300.519, and to make clear that after removal is contemplated that constitutes mediator must be selected from a list of a child with a disability has been a change of placement under § 300.519; mediators on a random basis (e.g., a removed from his or her current and (2) require that parents be provided rotation), or that both parties are placement for more than 10 school days notice of procedural safeguards involved in selecting the mediator and in the same school year, during any consistent with § 300.504. agree with the selection of the subsequent days of removal the public (2) Proposed § 300.523(b) (exception individual who will mediate; and (2) agency must provide services to the to conducting a manifestation add a new § 300.506(c)(2) to clarify that extent necessary under § 300.121(d). determination review) has been payment for mediation services by the (2) Proposed § 300.520(b) has been removed. State does not make the mediator an revised to replace ‘‘suspension’’ with (3) Proposed § 300.523(c) has been employee of the State agency for ‘‘removal,’’ and to specify that when redesignated as § 300.523(b) and revised purposes of impartiality. first removing a child for more than 10 to specify that the manifestation • Proposed § 300.507 (Impartial due school days in a school year, or determination review is conducted at a process hearing; parent notice) has been commencing a removal that constitutes meeting. amended to clarify that, in the content a change of placement, the LEA must (4) Proposed § 300.523(d) and (e) have of the parent notice, the description of within 10 business days, convene an IEP been redesignated as § 300.523(c) and the nature of the problem applies to the meeting. If the agency had not already (d) and revised by adding ‘‘and other

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12412 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations qualified personnel’’ after ‘‘IEP team’’ (a)(3) are redesignated as (a)(1) and reviewing existing data may conduct each time it is used. (a)(2) and paragraphs (b) and (c) are that review without a meeting (5) Proposed paragraph (f) has been redesignated as (c) and (d).) (§ 300.533(b)). redesignated as paragraph (e) and a new (2) A new § 300.528(b) has been • Proposed § 300.534 (Determination paragraph (f) has been added to clarify added to require that (A) each State of eligibility) has been amended to that if in the manifestation review establish a timeline for expedited due clarify that (1) children are not eligible deficiencies are identified in the child’s process hearings that results in a written if they need specialized instruction IEP or placement or in their decision being mailed to the parties because of limited English proficiency implementation, the public agency must within 45 days, with no extensions or lack of instruction in reading or math, act to correct those deficiencies. permitted that result in decisions being but do not need such instruction • Proposed § 300.524 (Determination issued more than 45 days after the because of a disability, as defined in that behavior was not a manifestation of hearing request is received by the public § 300.7; and (2) the evaluation required disability) has been amended to (1) agency; and (B) decisions be issued in in § 300.534(c)(1) is not required before replace, in paragraph (a), the reference the same period of time, whether the termination of a child’s eligibility under to ‘‘section 612 of the Act’’ with hearing is requested by a parent or an Part B of the Act due to graduation with ‘‘§ 300.121(c);’’ and (2) refer, in agency. a regular high school diploma, or paragraph (c), to the placement rules of (3) Redesignated § 300.528(d) has ceasing to meet the age requirement for § 300.526. been revised to specify that expedited FAPE under State law. • Proposed § 300.525 (Parent appeal) due process hearings are appealable • Proposed § 300.535 (Procedures for has been revised to refer to any decision consistent with the § 300.510. determining eligibility and placement) • regarding placement under §§ 300.520- Proposed § 300.529 (Referral to and has been revised to add ‘‘parent input’’ 300.528. action by law enforcement and judicial to the variety of sources from which the • Proposed § 300.526(c)(3) has been authorities) has been amended to make public agency will draw in interpreting revised to clarify that extensions of 45 clear that copies of a child’s special evaluation data for the purpose of day removals by a hearing officer education and disciplinary records may determining a child’s eligibility under because returning the child to the be transmitted only to the extent that this part. child’s current placement would be such transmission is permitted under dangerous, may be repeated, if FERPA. (Section 300.571 has been Least Restrictive Environment (LRE) necessary. amended to note the relationship of this • Proposed § 300.550 (General LRE • Proposed § 300.527 (Protections for section.) requirements) has been amended to add children not yet eligible for special Procedures for Evaluation and a cross reference to § 300.311(b) and (c), education and related services) has been Determination of Eligibility to clarify that the LRE provisions do not amended as follows: • apply to students with disabilities who (1) Proposed § 300.527(b)(1) has been Proposed § 300.532 (Evaluation are convicted as adults under State law revised to refer to not knowing how to procedures) has been amended to (1) and incarcerated in adult prisons. write rather than illiteracy in English. require that assessments of children • Proposed § 300.552 (Placements) (2) Proposed § 300.527(b)(2) has been with limited English proficiency must has been amended to (1) include a revised to clarify that the behavior or be selected and administered to ensure reference to preschool children with performance is in relation to the that they measure the extent to which a disabilities in the introductory categories of disability identified in child has a disability and needs special paragraph of this section, and (2) to add § 300.7. education, and do not, instead, measure a new § 300.552(e) prohibiting the (3) Proposed § 300.527(b)(4) has been the child’s English language skills removal of child with a disability from revised to refer to other personnel who (§ 300.532(a)2); (2) provide that the an age-appropriate regular classroom have responsibilities for child find or information gathered include solely because of needed modifications special education referrals in the information related to enabling the child in the general curriculum. agency. to be involved and progress in the (4) Proposed § 300.527(c) has been general curriculum or appropriate Confidentiality of Information redesignated as paragraph (d), and a activities if the child is a preschool • Proposed § 300.562 (Access rights) new paragraph (c) has been added to child (§ 300.532(b)); (3) provide that if has been revised to make it clear that provide that if an agency acts on one of an assessment is not conducted under expedited due process hearing the bases identified in paragraph (b), standard conditions, information about procedures under §§ 300.521–300.529 determines that the child is not eligible, the extent to which the assessment are also covered under this section. and provides proper notice to the varied from standard conditions, such • Proposed § 300.571 (Consent) has parents, and there are no additional as the qualifications of the person been amended to permit disclosures bases of knowledge under paragraph (b) administering the test or the method of without parental consent to the agencies that were not considered, the agency test administration, must be included in identified in § 300.529, to the extent would not be held to have a basis of the evaluation report (§ 300.532(c)(2)); permitted under the Family Educational knowledge under § 300.527(b). and (4) provide that each public agency Rights and Privacy Act (FERPA). (5) Proposed § 300.527(d)(2)(ii) has ensure that the evaluation of each child • Proposed § 300.574 (Children’s been revised to clarify that an with a disability under §§ 300.531– rights) has been revised by educational placement under that 300.536 is sufficiently comprehensive to incorporating into the regulations the provision can include suspension or identify all of the child’s special substance of the two notes following the expulsion without educational services. education and related services needs, section (relating to transfer of • Proposed § 300.528 (Expedited due whether or not commonly linked to the educational records to the student at age process hearings) has been amended as disability category in which the child 18). follows: has been classified. (1) Proposed § 300.528(a)(1) (requiring • Proposed § 300.533 (Determination Department Procedures a decision within 10 business days) has of needed evaluation data) has been • Proposed § 300.589 (Waiver of been deleted. (Paragraphs (a)(2) and revised to clarify that the group requirement regarding supplementing

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12413 and not supplanting with Part B funds) section, States must apply, on a uniform issue of discipline for children with has been revised to conform to the basis across all LEAs, the best data that disabilities under the Act. The previous statutory provision that the Secretary are available to them on the numbers of list of major changes briefly describes provides a waiver ‘‘in whole or in part.’’ children enrolled in public and private the major changes from the NPRM that elementary and secondary schools and are reflected in these final regulations 7. Changes in Subpart F—State Administration the numbers of children living in regarding discipline under poverty. §§ 300.121(d), and 300.519–529. These • Proposed § 300.652 (Advisory panel • Proposed § 300.713 (Former changes reflect very serious functions) has been revised to clarify Chapter 1 State agencies) has been consideration of the concerns of school that one of the duties of the advisory revised to clarify that the amount each administrators and teachers regarding panel is advising the State agency that former Chapter 1 State agency must preserving school safety and order has general responsibility for students receive is the minimum amount. without unduly burdensome who have been convicted as adults and • Proposed § 300.751 (Annual report requirements, while helping schools incarcerated in adult prisons. • of children served) has been revised to respond appropriately to a child’s Proposed § 300.653 (Advisory panel clarify that the Secretary may permit behavior, promoting the use of procedures) has been amended to States to collect certain data through appropriate behavioral interventions, specify that all advisory panel meetings sampling. and increasing the likelihood of success and agenda items must be ‘‘announced in school and school completion for 9. Changes to Part 303 enough in advance of the meeting to some of our most at-risk students. afford interested parties a reasonable • Proposed § 303.510 (Adopting State opportunity to attend.’’ The comments also revealed some • complaint procedures) has been revised confusion about several of the Proposed § 300.660 (Adoption of to clarify that if a lead agency, in State complaint procedures) has been provisions of the Act and the NPRM resolving a complaint, finds a failure to regarding discipline. Limitations in the revised to clarify that if an SEA, in provide appropriate services, it must resolving a complaint, finds a failure to statute and regulations about the address (1) how to remediate the denial amount of time that a child can be provide appropriate services to a child of those services, including, as with a disability, the SEA must address removed from his or her current appropriate, the awarding of monetary placement only come into play when (1) how to remediate the denial of those reimbursement or other corrective services, including, as appropriate, the schools are not able to work out an action appropriate to the needs of the appropriate placement with the parents awarding of monetary reimbursement or child and the child’s family, as well as other corrective action appropriate to of a child who has violated a school (2) appropriate future provision of code of conduct. In many, many cases the needs of the child; and (2) services for all infants and toddlers with appropriate future provision of services involving discipline for children with disabilities and their families. disabilities, schools and parents are able for all children with disabilities. • Proposed § 303.512 (Minimum • Proposed § 300.661 (Minimum to reach an agreement about how to State complaint procedures) has been State complaint procedures) has been respond to the child’s behavior. In revised to clarify that (1) if an issue in revised to clarify that (1) if an issue in addition, neither the statute or the a complaint is the subject of a due a complaint is the subject of a due proposed or final regulations impose process hearing, that issue (but not any process hearing, that issue (but not any absolute limits on the number of days issue outside of the hearing) would be issue outside of the hearing) would be that a child can be removed from his or set aside until the conclusion of the set aside until the conclusion of the her current placement in a school year. hearing, (2) the decision on an issue in hearing, (2) the decision on an issue in As was the case in the past, school a due process hearing would be binding a due process hearing would be binding personnel have the ability to remove a in a State complaint resolution, and (3) in a State complaint resolution, and (3) child for short periods of time as long a public agency’s or private service a public agency’s failure to implement as the removal does not constitute a provider’s failure to implement a due a due process decision would have to be change of placement. To help make this process decision must be resolved by resolved by the SEA. point, the regulations include a new the lead agency. provision (§ 300.519) that reflects the 8. Changes in Subpart G—Allocation of Role of the Regular Education Teacher Department’s longstanding definition of Funds; Reports on the IEP Team what constitutes a ‘‘change of • Proposed § 300.712 (Allocations to placement’’ in the disciplinary context. LEAs) has been revised to clarify that, The regulations at §§ 300.344(a)(2) In this regulation, a disciplinary if LEAs are created, combined, or and 300.346(d) repeat the statutory ‘‘change of placement’’ occurs when a otherwise reconfigured subsequent to provisions regarding the role of the child is removed for more than 10 the base year (i.e. the year prior to the regular education teacher in developing, consecutive school days or when the year in which the appropriation under reviewing, and revising IEPs. The extent child is subjected to a series of removals section 611(j) of the Act exceeds of the regular education teacher’s that constitute a pattern because they $4,924,672,200), the State is required to involvement in the IEP process would cumulate to more than 10 school days provide the LEAs involved with revised be determined on a case by case basis in a school year, and because of factors base allocations calculated on the basis and is addressed in question 24 in such as the length of the removal, the of the relative numbers of children with Appendix A. total amount of time the child is disabilities aged 3 through 21, or 6 Discipline for Children With removed, and the proximity of the through 21, depending on whether the Disabilities removals to one another. (§ 300.519). State serves all children with Changes also have been made to disabilities aged 3 through 5 currently Some Key Changes in the Regulations § 300.520(a)(1) to make clear that provided special education by each of Regarding Discipline for Children With multiple short-term removals (i.e., 10 the affected LEAs. The section also has Disabilities consecutive days or less) for separate been expanded to state that, for the One of the major areas of concern in incidents of misconduct are permitted, purpose of making grants under this public comment on the NPRM was the to the extent removals would be applied

VerDate 03-MAR-99 17:45 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm01 PsN: 12MRR2 12414 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations to children without disabilities as long behavioral assessments and behavioral regarding removal of students from their as those removals do not constitute a intervention plans will only be required current placement when their behavior change of placement, as defined in within 10 business days of (1) when the significantly violates school discipline § 300.519. child is first removed for more than 10 codes; and (3) the requirement of the Instead of requiring that services school days in a school year, and (2) IDEA for the continuation of services for begin on the eleventh day in a school whenever the child is subjected to a children with disabilities who are year that a child is removed from his or disciplinary change of placement. disciplined. her current educational placement, as (§ 300.520(b)(1)). In other subsequent 1. Why are there special rules about was proposed in the NPRM, the removals in a school year of a child who discipline for children with disabilities? regulations take a more flexible already has a functional behavioral approach. If the removal is pursuant to assessment and behavioral intervention The protections in the IDEA regarding school personnel’s authority to remove plan, the IEP team members can review discipline are designed to prevent the for not more than 10 consecutive days the behavioral intervention plan and its type of often speculative and subjective (§ 300.520(a)(1)) or for behavior that is implementation in light of the child’s decision making by school officials that not a manifestation of the child’s behavior, without a meeting, and only led to widespread abuses of the rights of disability, consistent with § 300.524 meet if one or more of the team children with disabilities to an services must be provided to the extent members believe that the plan or its appropriate education in the past. For necessary to enable the child to implementation need modification. example, in Mills v. Board of Education continue to appropriately progress in (§ 300.520(c)). of the District of Columbia (1972) the the general curriculum and These final regulations also provide court recognized that many children appropriately advance toward the goals that manifestation determinations, and were being excluded entirely from in his or her IEP. (§ 300.121(d)). the IEP team meetings to make these education merely because they had been If the removal is by school personnel determinations, are only required when identified as having a behavior disorder. under their authority to remove for not a child is subjected to a disciplinary It is important to keep in mind, more than 10 school days at a time change of placement. (§ 300.523(a)). however, that these protections do not (§ 300.520(a)(1)), school personnel, in These changes should eliminate the prevent school officials from consultation with the child’s special need for unnecessary, repetitive IEP maintaining a learning environment that education teacher, make the team meetings. The discussion of is safe and conducive to learning for all determination regarding the extent to comments regarding the disciplinary children. Well run schools that have which services are necessary to meet sections of the regulations in good leadership, well-trained teachers this standard. (§ 300.121(d)(3)(i)). On Attachment 1 provides a fuller and high standards for all students have the other hand, if the removal explanation of the regulatory provisions fewer discipline problems than schools constitutes a change in placement, the regarding discipline. that do not. child’s IEP team must be involved. If the It is also extremely important to keep removal is pursuant to the authority to Answers to Some Commonly Asked in mind that the provisions of the discipline a child with a disability to Questions About Discipline Under IDEA statute and regulation concerning the the same extent as a nondisabled child Prior to the amendments to the amount of time a child with a disability for behavior that has been determined to Education of the Handicapped Act can be removed from his or her regular not be a manifestation of the child’s (EHA) in 1975, (the EHA is today known placement for disciplinary reasons are disability (§ 300.524), the child’s IEP as IDEA), the special educational needs only called into play if the removal team makes the determination regarding of children with disabilities were not constitutes a change of placement and the extent to which services are being met. More than half of the the parent objects to proposed action by necessary to meet this standard. children with disabilities in the United school officials (or objects to a refusal by (§ 300.121(d)(3)(ii)). If the child is being States did not receive appropriate school officials to take an action) and placed in an interim alternative educational services, and a million requests a due process hearing. The educational setting for up to 45 days children with disabilities were excluded discipline rules concerning the amount because of certain weapon or drug entirely from the public school system. of time a child can be removed from his offenses (§ 300.520(a)(2)) or because a All too often, school officials used or her current placement essentially are hearing officer has determined that disciplinary measures to exclude exceptions to the generally applicable there is a substantial likelihood of injury children with disabilities from requirement that a child remains in his to the child or others if the child education simply because they were or her current placement during the remains in his or her current placement different or more difficult to educate pendency of due process, and (§ 300.521), the services to be provided than nondisabled children. subsequent judicial, proceedings. (See, to the child are determined based on It is against that backdrop that Pub. L. section 615(j) of the Act and § 300.514.) § 300.522. In these cases, the interim 94–142 was developed, with one of its If school officials believe that a child’s alternative educational setting must be primary goals being the elimination of placement is inappropriate they can selected so as to enable the child to any exclusion of children with work with the child’s parent through the continue to progress in the general disabilities from education. In the IDEA IEP and placement processes to come up curriculum, although in another setting, reauthorization of 1997, Congress with an appropriate placement for the and to continue to receive those services recognized that in certain instances child that will meet the needs of the and modifications, including those school districts needed increased child and result in his or her improved described in the child’s current IEP, that flexibility to deal with safety issues learning and the learning of others and will enable the child to meet the goals while maintaining needed due process ensure a safe environment. In addition set out in that IEP and include services protections in the IDEA. The following to the other measures discussed in the and modifications to address the questions and answers address: (1) the following questions, the discipline behavior. (§§ 300.121(d)(2)(ii) and proactive requirements of the IDEA provisions of the IDEA allow 300.522). designed to ensure that children with responsible and appropriate changes in Under these regulations, IEP team disabilities will be able to adhere to placement of children with disabilities meetings regarding functional school rules; (2) IDEA provisions when their parents do not object.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12415

2. Does IDEA contain provisions that school officials can remove any child injure self or others if returned to his or promote proactive up-front measures with a disability from his or her regular her regular placement. § 300.526(c)(4). that will help prevent discipline school placement for up to 10 school Additionally, at any time, school problems? days at a time, even over the parents’ officials may seek to obtain a court order Yes. Research has shown that if objections, whenever discipline is to remove a child with a disability from teachers and other school personnel appropriate and is administered school or to change a child’s current have the knowledge and expertise to consistent with the treatment of educational placement if they believe provide appropriate behavioral nondisabled children. § 300.520(a)(1). that maintaining the child in the current interventions, future behavior problems However, school officials cannot use educational placement is substantially can be greatly diminished if not totally this authority to repeatedly remove a likely to result in injury to the child or avoided. Appropriate staff development child from his or her current placement others. activities and improved pre-service if that series of removals means the Finally, school officials can report training programs at the university level child is removed for more than 10 crimes committed by children with with emphasis in the area of early school days in a school year and factors disabilities to appropriate law identification of reading and behavior such as the length of each removal, the enforcement authorities to the same problems and appropriate interventions total amount of time that the child is extent as they do for crimes committed can help to ensure that regular and removed, and the proximity of the by nondisabled students. § 300.529. special education teachers and other removals to one another lead to the 4. Do the IDEA regulations mean that a school personnel have the needed conclusion that there has been a change child with a disability cannot be knowledge and skills. Changes in the in placement. §§ 300.519–300.520(a)(1). removed from his or her current IDEA emphasize the need of State and There is no specific limit on the number placement for more than ten school days local educational agencies to work to of days in a school year that a child with in a school year? ensure that superintendents, principals, a disability can be removed from his or teachers and other school personnel are her current placement. After a child is No. School authorities may equipped with the knowledge and skills removed from his or her current unilaterally suspend a child with a that will enable them to appropriately placement for more than 10 cumulative disability from the child’s regular address behavior problems when they school days in a school year, services placement for not more than 10 school occur. must be provided to the extent required days at a time for any violation of school In addition, the IDEA includes under § 300.121(d), which concerns the rules if nondisabled children would be provisions that focus on individual provision of FAPE for children subjected to removal for the same children. If a child has behavior suspended or expelled from school. offense. They also may implement problems that interfere with his or her additional suspensions of up to ten If the child’s parents do not agree to learning or the learning of others, the school days at a time in that same a change of placement, school IEP team must consider whether school year for separate incidents of authorities can unilaterally remove a strategies, including positive behavioral misconduct if educational services are child with a disability from the child’s interventions, strategies, and supports provided for the remainder of the are needed to address the behavior. If regular placement for up to 45 days at removals, to the extent required under the IEP team determines that such a time if the child has brought a weapon § 300.121(d). (See the next question services are needed, they must be added to school or to a school function, or regarding the provision of educational to the IEP and must be provided. The knowingly possessed or used illegal services during periods of removal.) Department has supported a number of drugs or sold or solicited the sale of However, school authorities may not activities such as training institutes, controlled substances while at school or remove a child in a series of short-term conferences, clearinghouses and other a school function. § 300.520(a)(2). In suspensions (up to 10 school days at a technical assistance and research addition, if school officials believe that time), if these suspensions constitute a activities on this topic to help school a child with a disability is substantially pattern that is a change of placement personnel appropriately address likely to injure self or others in the because the removals cumulate to more behavioral concerns for children with child’s regular placement, they can ask than 10 school days in a school year and disabilities. an impartial hearing officer to order that because of factors such as the length of the child be removed to an interim each removal, the total amount of time 3. Can a child with a disability who is alternative educational setting for a the child is removed, and the proximity experiencing significant disciplinary period of up to 45 days. § 300.521. If at of the removals to one another. But not problems be removed to another the end of an interim alternative all series of removals that cumulate to placement? educational placement of up to 45 days, more than 10 school days in a school Yes. Even when school personnel are school officials believe that it would be year would constitute a pattern under appropriately trained and are dangerous to return the child to the § 300.519(b). proactively addressing children’s regular placement because the child Of course, in the case of less serious behavior issues through positive would be substantially likely to injure infractions, schools can address the behavioral intervention supports, self or others in that placement, they misconduct through appropriate interventions, and strategies, there may can ask an impartial hearing officer to instructional and/or related services, be instances when a child must be order that the child remain in an interim including conflict management, removed from his or her current alternative educational setting for an behavior management strategies, and placement. When there is agreement additional 45 days. § 300.526(c). If measures such as study carrels, time- between school personnel and the necessary, school officials can also outs, and restrictions in privileges, so child’s parents regarding a change in request subsequent extensions of these long as they are not inconsistent with placement (as there frequently is), there interim alternative educational settings the child’s IEP. If a child’s IEP or will be no need to bring into play the for up to 45 days at a time if school behavior intervention plan addresses a discipline provisions of the law. Even if officials continue to believe that the particular behavior, it generally would agreement is not possible, in general, child would be substantially likely to be inappropriate to utilize some other

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12416 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations response, such as suspension, to that appropriate educational services must global economy and exercise the rights behavior. be provided. § 300.524(a). This means and responsibilities of citizenship. that if nondisabled children are long- • 5. What must a school district do when Every school in the United States term suspended or expelled for a removing a child with a disability from will be free of drugs, violence, and the particular violation of school rules, the his or her current placement for the unauthorized presence of firearms and eleventh cumulative day in a school child with disabilities may also be long- alcohol and will offer a disciplined year? term suspended or expelled. environment conducive to learning. Educational services must be provided • The Nation’s teaching force will Beginning on the eleventh cumulative to the extent the child’s IEP team have access to programs for the day in a school year that a child with determines necessary to enable the child continued improvement of their a disability is removed from his or her to appropriately progress in the general professional skills and the opportunity current placement, the school district curriculum and appropriately advance to acquire the knowledge and skills must provide those services that school toward the goals set out in the child’s needed to instruct and prepare all personnel (for example, the school IEP. § 300.121(d)(2). American students for the next century. administrator or other appropriate • Every school will promote school personnel) in consultation with 7. Does the statutory language ‘‘carries partnerships that will increase parental the child’s special education teacher a weapon to school or to a school involvement and participation in determine to be necessary to enable the function’’ cover instances in which the promoting the social, emotional, and child to appropriately progress in the child acquires a weapon at school? academic growth of children. general curriculum and appropriately Yes. Although the statutory language advance toward achieving the goals set ‘‘carries a weapon to school or to a Executive Order 12866 out in the child’s IEP. School personnel school function’’ could be viewed as This is a significant regulatory action would determine where those services ambiguous on this point, in light of the under section 3(f)(1) of Executive Order would be provided. This means that for clear intent of Congress in the Act to 12866 and, therefore, these final the remainder of the removal that expand the authority of school regulations have been reviewed by the includes the eleventh day, and for any personnel to immediately address Office of Management and Budget in subsequent removals, services must be school weapons offenses, the accordance with that order. Because it provided to the extent determined Department’s opinion is that this has been determined that these necessary, while the removal continues. language also covers instances in which regulations are economically significant § 300.121(d)(2) and (3). the child is found to have a weapon that under the order, the Department has Not later than 10 business days after he or she obtained while at school. removing a child with a disability for conducted an economic analysis, which more than 10 school days in a school Goals 2000: Educate America Act is provided in Attachment 2. This regulation has also been determined to year, the school district must convene The Goals 2000: Educate America Act be a major rule under the Small an IEP team meeting to develop a (Goals 2000) focuses the Nation’s Business Regulatory Enforcement behavioral assessment plan if the education reform efforts on the eight Fairness Act of 1996. district has not already conducted a National Education Goals and provides These final regulations implement functional behavioral assessment and a framework for meeting them. Goals changes made to the Individuals with implemented a behavioral intervention 2000 promotes new partnerships to Disabilities Education Act by the IDEA plan for the child. If a child with a strengthen schools and expands the Amendments of 1997 and make other disability who is being removed for the Department’s capacities for helping changes determined by the Secretary as eleventh cumulative school day in a communities to exchange ideas and necessary for administering this school year already has a behavioral obtain information needed to achieve program effectively and efficiently. intervention plan, the school district the goals. must convene the IEP team (either These final regulations address the The IDEA Amendments of 1997 made before or not later than 10 business days following National Education Goals: a number of significant changes to the after first removing the child for more • All children in America will start law. While retaining the basic rights and than 10 school days in a school year) to school ready to learn. protections that have been in the law review the plan and its implementation, • The high school graduation rate since 1975, the amendments and modify the plan and its will increase to at least 90 percent. strengthened the focus of the law on implementation as necessary to address • All students will leave grades 4, 8, improving results for children with the behavior. § 300.520(b). and 12 having demonstrated disabilities. The amendments A manifestation determination would competency in challenging subject accomplished this through changes that not be required unless the removal that matter, including English, mathematics, promote the early identification of, and includes the eleventh cumulative school science, foreign languages, civics and provision of services to, children with day of removal in a school year is a government, economics, arts, history, disabilities, the development of change of placement. § 300.523(a). and geography; and every school in individualized education programs that America will ensure that all students enhance the participation of children 6. Does the IDEA or its regulations mean learn to use their minds well, so they with disabilities in the general that a child with a disability can never may be prepared for responsible curriculum, the education of children be suspended for more than 10 school citizenship, further learning, and with disabilities with nondisabled days at a time or expelled for behavior productive employment in our Nation’s children, higher expectations for that is not a manifestation of his or her modern economy. children with disabilities and disability? • United States students will be first accountability for their educational No. If the IEP team concludes that the in the world in mathematics and science results, the involvement of parents in child’s behavior was not a manifestation achievement. their children’s education, and reducing of the child’s disability, the child can be • Every adult American will be unnecessary paperwork and other disciplined in the same manner as literate and will possess the knowledge burdens to better direct resources to nondisabled children, except that and skills necessary to compete in a improved teaching and learning.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12417

All of these objectives are reflected in satisfaction of the Secretary that the Collection of Information: Assistance these final regulations, which largely State meets the specified conditions for for Education of All Children with reflect the changes to the statute made assistance under this part. In the past, Disabilities: List of Hearing Officers and by IDEA Amendments of 1997. States were required to submit State Mediators, §§ 300.506 and 300.508. In assessing the potential costs and plans every three years with one-third of Each State must maintain a list of benefits—both quantitative and the entities submitting plans to the individuals who are qualified mediators qualitative—of these final regulations, Secretary each year. With the new and knowledgeable in laws and the Secretary has determined that the statute, States will no longer be required regulations relating to the provision of benefits of these final regulations justify to submit State plans. Rather, the special education and related services. the costs. policies and procedures currently Each public agency must, also, keep a The Secretary has also determined approved by, and on file with, the list of the persons who serve as hearing that this regulatory action does not Secretary that are not inconsistent with officers. unduly interfere with State, local, and the IDEA Amendments of 1997 will Annual reporting and recordkeeping tribal governments in the exercise of remain in effect unless amended. burden for this collection of information their governmental functions. Annual reporting and recordkeeping is estimated to average 25 hours for each Paperwork Reduction Act of 1995 burden for this collection of information response for 58 respondents, including is estimated to average 30 hours for each the time for reviewing instructions, Sections 300.110, 300.121, 300.123– response for 58 respondents, including searching existing data sources, 300.130, 300.133, 300.135–300.137, gathering and maintaining the data 300.141–300.145, 300.155–300.156, the time for reviewing instructions, searching existing data sources, needed, and completing and reviewing 300.180, 300.192, 300.220–300.221, the collection of information. Thus, the 300.240, 300.280–300.281, 300.284, gathering and maintaining the data needed, and completing and reviewing total annual reporting and 300.341, 300.343, 300.345, 300.347, recordkeeping burden for this collection 300.380–300.382, 300.402, 300.482– the collection of information. Thus, the total annual reporting and is estimated to be 3050 hours. 300.483, 300.503–300.504, 300.506, Collection of Information: Assistance 300.508, 300.510–300.511, 300.532, recordkeeping burden for this collection is estimated to be 1740 hours. for Education of All Children with 300.535, 300.543, 300.561–300.563, Disabilities: Report of Children and Collection of Information: Assistance 300.565, 300.569, 300.571–300.572, Youth with Disabilities Receiving for Education of All Children with 300.574–300.575, 300.589, 300.600, Special Education, §§ 300.750–300.751, Disabilities: LEA Eligibility, §§ 300.180, 300.653, 300.660–300.662, 300.750– and 300.754. Each SEA must submit an 300.192, 300.220–300.221, 300.240, 300.751, 300.754, 303.403, 303.510– annual report of children served. 300.341, 300.343, 300.345, 300.347, 303.512, and 303.520 contain Annual reporting and recordkeeping 500.503–300.504, 300.532, 300.535, information collection requirements. As burden for this collection of information 300.543, 300.561–300.563, 300.565, required by the Paperwork Reduction is estimated to average 262 hours for 300.569, 300.571–300.572, and 300.574– Act of 1995 (44 U.S.C. 3507(d)), the each response for 58 respondents, 300.575. Each local educational agency Department of Education has submitted including the time for reviewing (LEA) and each State agency must have a copy of these sections to the Office of instructions, searching existing data on file with the State educational Management and Budget (OMB) for its sources, gathering and maintaining the agency (SEA) information to review. data needed, and completing and demonstrate that the agency meets the Collection of Information: Assistance reviewing the collection of information. specified requirements for assistance for Education of All Children with Thus, the total annual reporting and under this part. In the past, each LEA Disabilities: Complaint Procedures, recordkeeping burden for this collection was required to submit a periodic §§ 300.600–300.662 and 303.510– is estimated to be 15,196 hours. 303.512. Each SEA is required to adopt application to the SEA in order to Organizations and individuals written procedures for resolving any establish its eligibility for assistance desiring to submit comments on the complaint that meets the requirements under this part. Under the new statutory information collection requirements in these proposed regulations. changes, LEAs are no longer required to should direct them to the Office of Annual reporting and recordkeeping submit such applications. Rather, the Information and Regulatory Affairs, burden for this collection of information policies and procedures currently OMB, room 10235, New Executive is estimated to average 10 hours to issue approved by, and on file with, the SEA Office Building, Washington, DC 20503; a written decision to a complaint. There that are not inconsistent with the IDEA Attention: Desk Officer for U.S. is an estimated average annual total of Amendments of 1997 will remain in Department of Education. 1079 complaints submitted for effect unless amended. The Department considers comments processing. Thus, the total annual Annual reporting and recordkeeping by the public on these proposed reporting and recordkeeping burden for burden for this collection of information collections of information in— this collection is estimated to be 10,790 is estimated to average 2 hours for each • Evaluating whether the proposed hours. response for 15,376 respondents, collections of information are necessary Collection of Information: Assistance including the time for reviewing for the proper performance of the for Education of All Children with instructions, searching existing data functions of the Department, including Disabilities: State Eligibility, §§ 300.110, sources, gathering and maintaining the whether the information will have 300.121, 300.123–300.130, 300.133, data needed, and completing and practical utility; 300.135–300.137, 300.141–300.145, reviewing the collection of information. • Evaluating the accuracy of the 300.155–300.156, 300.280–300.281, Thus, the total annual reporting and Department’s estimate of the burden of 300.284, 300.380–300.382, 300.402, recordkeeping burden for this collection the proposed collections of information, 300.482–300.483, 300.510–300.511, is estimated to be 30,752 hours. The including the validity of the 300.589, 300.600, 300.653, 303.403, and Secretary invites comment on the methodology and assumptions used; 303.520. Each State must have on file estimated time it will take for LEAs to • Enhancing the quality, usefulness, with the Secretary policies and meet this reporting and recordkeeping and clarity of the information to be procedures to demonstrate to the requirement. collected; and

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12418 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

• Minimizing the burden of the this document do not require PART 300ÐASSISTANCE TO STATES collection of information on those who transmission of information that is being FOR THE EDUCATION OF CHILDREN are to respond, including through the gathered by or is available from any WITH DISABILITIES use of appropriate automated, other agency or authority of the United electronic, mechanical, or other States. Subpart AÐGeneral technological collection techniques or Electronic Access to This Document Purposes, Applicability, and Regulations other forms of information technology; That Apply to This Program e.g., permitting electronic submission of Anyone may also view this document, Sec. responses. as well as all other Department of 300.1 Purposes. OMB is required to make a decision Education documents published in the 300.2 Applicability of this part to State, concerning the collections of Federal Register, in text or portable local, and private agencies. information contained in these document format (pdf) on the World Definitions Used in This Part proposed regulations between 30 and 60 Wide Web at either of the following 300.3 Regulations that apply. days after publication of this document sites: 300.4 Act. in the Federal Register. Therefore, a http://gcs.ed.gov/fedreg.htm 300.5 Assistive technology device. comment to OMB is best assured of http://www.ed.gov/news.html 300.6 Assistive technology service. having its full effect if OMB receives it 300.7 Child with a disability. within 30 days of publication. This does To use the pdf you must have the 300.8 Consent. not affect the deadline for the public to Adobe Acrobat Reader Program with 300.9 Day; business day; school day. comment to the Department on the Search, which is available free at either 300.10 Educational service agency. proposed regulations. of the previous sites. If you have 300.11 Equipment. questions about using the pdf, call the 300.12 Evaluation. Regulatory Flexibility Act Certification U.S. Government Printing Office toll 300.13 Free appropriate public education. free at 1–888–293–6498. 300.14 Include. The Secretary certifies that these final 300.15 Individualized education program. regulations will not have a significant Anyone may also view these 300.16 Individualized education program economic impact on a substantial documents in text copy only on an team. number of small entities. The small electronic bulletin board of the 300.17 Individualized family service plan. entities that would be affected by these Department. Telephone: (202) 219–1511 300.18 Local educational agency. regulations are small local educational or, toll free, 1–800–222–4922. The 300.19 Native language. agencies receiving Federal funds under documents are located under Option 300.20 Parent. this program. These regulations would G—Files/Announcements, Bulletins and 300.21 Personally identifiable. Press Releases. 300.22 Public agency. not have a significant economic impact 300.23 Qualified personnel. on the small LEAs affected because Note: The official version of this document 300.24 Related services. these regulations impose minimal is the document published in the Federal 300.25 Secondary school. requirements beyond those that would Register. 300.26 Special education. otherwise be required by the statute. In 300.27 State. List of Subjects addition, increased costs imposed by 300.28 Supplementary aids and services. these regulations on LEAs are expected 34 CFR Part 300 300.29 Transition services. to be offset by savings to be realized by 300.30 Definitions in EDGAR. Administrative practice and LEAs. Subpart BÐState and Local Eligibility procedure, Education of individuals Intergovernmental Review with disabilities, Elementary and State Eligibility—General This program is subject to the secondary education, Equal educational 300.110 Condition of assistance. requirements of Executive Order 12372 opportunity, Grant programs— 300.111 Exception for prior State policies and the regulations in 34 CFR part 79. education, Privacy, Private schools, and procedures on file with the Secretary. The objective of the Executive order is Reporting and recordkeeping requirements. 300.112 Amendments to State policies and to foster an intergovernmental procedures. partnership and a strengthened 34 CFR Part 303 300.113 Approval by the Secretary. federalism by relying on processes 300.114—300.120 [Reserved] developed by State and local Education of individuals with State Eligibility—Specific Conditions governments for coordination and disabilities, Grant programs— review of proposed Federal financial education, Infants and children, 300.121 Free appropriate public education assistance. Reporting and recordkeeping (FAPE). requirements. 300.122 Exception to FAPE for certain ages. In accordance with the order, this 300.123 Full educational opportunity goal document is intended to provide early Dated: March 4, 1999. (FEOG). notification of the Department’s specific Richard W. Riley, 300.124 FEOG—timetable. plans and actions for this program. Secretary of Education. 300.125 Child find. 300.126 Procedures for evaluation and Assessment of Educational Impact (Catalog of Federal Domestic Assistance determination of eligibility. In the NPRM published on October Number: 84.027 Assistance to States for the 300.127 Confidentiality of personally 22, 1997, the Secretary requested Education of Children with Disabilities, and identifiable information. 84.181 Early Intervention Program for Infants 300.128 Individualized education comments on whether the proposed and Toddlers with Disabilities) regulations would require transmission programs. 300.129 Procedural safeguards. of information that is being gathered by The Secretary amends Title 34 of the Code of Federal Regulations by revising 300.130 Least restrictive environment. or is available from any other agency or 300.131 [Reserved] authority of the United States. part 300 and amending part 303 as 300.132 Transition of children from Part C Based on the response to the NPRM follows: to preschool programs. and on its own review, the Department 1. Part 300 is revised to read as 300.133 Children in private schools. has determined that the regulations in follows: 300.134 [Reserved]

VerDate 03-MAR-99 17:45 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm01 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12419

300.135 Comprehensive system of 300.246 Plan requirements. 300.372 Nonapplicability of requirements personnel development. 300.247 Responsibilities of the LEA. that prohibit commingling and 300.136 Personnel standards. 300.248 Limitation. supplanting of funds. 300.137 Performance goals and indicators. 300.249 Additional requirements. 300.138 Participation in assessments. 300.250 Extension of plan. Comprehensive System of Personnel 300.139 Reports relating to assessments. Development (CSPD) 300.140 [Reserved] Secretary of the Interior—Eligibility 300.380 General CSPD requirements. 300.141 SEA responsibility for general 300.260 Submission of information. 300.381 Adequate supply of qualified supervision. 300.261 Public participation. personnel. 300.142 Methods of ensuring services. 300.262 Use of Part B funds. 300.382 Improvement strategies. 300.143 SEA implementation of procedural 300.263 Plan for coordination of services. 300.383—300.387 [Reserved] safeguards. 300.264 Definitions. 300.144 Hearings relating to LEA eligibility. 300.265 Establishment of advisory board. Subpart DÐChildren in Private 300.145 Recovery of funds for misclassified 300.266 Annual report by advisory board. Schools children. 300.267 Applicable regulations. 300.146 Suspension and expulsion rates. Public Participation Children With Disabilities in Private Schools 300.147 Additional information if SEA Placed or Referred by Public Agencies provides direct services. 300.280 Public hearings before adopting 300.148 Public participation. State policies and procedures. 300.400 Applicability of §§ 300.400– 300.149 [Reserved] 300.281 Notice. 300.402. 300.150 State advisory panel. 300.282 Opportunity to participate; 300.401 Responsibility of State educational 300.151 [Reserved] comment period. agency. 300.152 Prohibition against commingling. 300.283 Review of public comments before 300.402 Implementation by State 300.153 State-level nonsupplanting. adopting policies and procedures. educational agency. 300.154 Maintenance of State financial 300.284 Publication and availability of Children With Disabilities Enrolled by Their support. approved policies and procedures. Parents in Private Schools When FAPE is at 300.155 Policies and procedures for use of Issue Part B funds. Subpart CÐServices 300.403 Placement of children by parents if 300.156 Annual description of use of Part B Free Appropriate Public Education funds. FAPE is at issue. 300.300 Provision of FAPE. LEA and State Agency Eligibility—General 300.301 FAPE—methods and payments. Children With Disabilities Enrolled by Their Parents in Private Schools 300.180 Condition of assistance. 300.302 Residential placement. 300.181 Exception for prior LEA or State 300.303 Proper functioning of hearing aids. 300.450 Definition of ‘‘private school agency policies and procedures on file 300.304 Full educational opportunity goal. children with disabilities.’’ with the SEA. 300.305 Program options. 300.451 Child find for private school 300.182 Amendments to LEA policies and 300.306 Nonacademic services. children with disabilities. procedures. 300.307 Physical education. 300.452 Provision of services—basic 300.183 [Reserved] 300.308 Assistive technology. requirement. 300.184 Excess cost requirement. 300.309 Extended school year services. 300.453 Expenditures. 300.185 Meeting the excess cost 300.310 [Reserved] 300.454 Services determined. requirement. 300.311 FAPE requirements for students 300.455 Services provided. 300.186—300.189 [Reserved] with disabilities in adult prisons. 300.456 Location of services; 300.190 Joint establishment of eligibility. 300.312 Children with disabilities in public transportation. 300.191 [Reserved] charter schools. 300.457 Complaints. 300.192 Requirements for establishing 300.313 Children experiencing 300.458 Separate classes prohibited. eligibility. developmental delays. 300.459 Requirement that funds not benefit 300.193 [Reserved] Evaluations and Reevaluations a private school. 300.194 State agency eligibility. 300.460 Use of public school personnel. 300.195 [Reserved] 300.320 Initial evaluations. 300.461 Use of private school personnel. 300.196 Notification of LEA or State agency 300.321 Reevaluations. 300.462 Requirements concerning property, in case of ineligibility. 300.322—300.324 [Reserved] equipment, and supplies for the benefit 300.197 LEA and State agency compliance. Individualized Education Programs of private school children with disabilities. LEA and State Agency Eligibility—Specific 300.340 Definitions related to IEPs. Conditions 300.341 Responsibility of SEA and other Procedures for By-Pass 300.220 Consistency with State policies. public agencies for IEPs. 300.480 By-pass—general. 300.221 Implementation of CSPD. 300.342 When IEPs must be in effect. 300.481 Provisions for services under a by- 300.222—300.229 [Reserved] 300.343 IEP Meetings. pass. 300.230 Use of amounts. 300.344 IEP team. 300.482 Notice of intent to implement a by- 300.231 Maintenance of effort. 300.345 Parent participation. pass. 300.232 Exception to maintenance of effort. 300.346 Development, review, and revision 300.483 Request to show cause. 300.233 Treatment of federal funds in of IEP. 300.484 Show cause hearing. certain fiscal years. 300.347 Content of IEP. 300.485 Decision. 300.234 Schoolwide programs under title I 300.348 Agency responsibilities for 300.486 Filing requirements. of the ESEA. transition services. 300.487 Judicial review. 300.235 Permissive use of funds. 300.349 Private school placements by 300.236—300.239 [Reserved] public agencies. Subpart EÐProcedural Safeguards 300.240 Information for SEA. 300.350 IEPs—accountability. Due Process Procedures for Parents and 300.241 Treatment of charter schools and Direct Services by the Sea Children their students. 300.242 Public information. 300.360 Use of LEA allocation for direct 300.500 General responsibility of public 300.243 [Reserved] services. agencies; definitions. 300.244 Coordinated services system. 300.361 Nature and location of services. 300.501 Opportunity to examine records; 300.362—300.369 [Reserved] parent participation in meetings. School-Based Improvement Plan 300.370 Use of SEA allocations. 300.502 Independent educational 300.245 School-based improvement plan. 300.371 [Reserved] evaluation.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12420 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

300.503 Prior notice by the public agency; 300.564 Records on more than one child. 300.708 Limitation. content of notice. 300.565 List of types and locations of 300.709 Decrease in funds. 300.504 Procedural safeguards notice. information. 300.710 Allocation for State in which by- 300.505 Parental consent. 300.566 Fees. pass is implemented for private school 300.506 Mediation. 300.567 Amendment of records at parent’s children with disabilities. 300.507 Impartial due process hearing; request. 300.711 Subgrants to LEAs. parent notice. 300.568 Opportunity for a hearing. 300.712 Allocations to LEAs. 300.508 Impartial hearing officer. 300.569 Result of hearing. 300.713 Former Chapter 1 State agencies. 300.509 Hearing rights. 300.570 Hearing procedures. 300.714 Reallocation of LEA funds. 300.510 Finality of decision; appeal; 300.571 Consent. 300.715 Payments to the Secretary of the impartial review. 300.572 Safeguards. Interior for the education of Indian 300.511 Timelines and convenience of 300.573 Destruction of information. children. hearings and reviews. 300.574 Children’s rights. 300.716 Payments for education and 300.512 Civil action. 300.575 Enforcement. services for Indian children with 300.513 Attorneys’ fees. 300.576 Disciplinary information. disabilities aged 3 through 5. 300.514 Child’s status during proceedings. 300.577 Department use of personally 300.717 Outlying areas and freely 300.515 Surrogate parents. identifiable information. associated States. 300.516 [Reserved] Department Procedures 300.718 Outlying area—definition. 300.517 Transfer of parental rights at age of 300.719 Limitation for freely associated majority. 300.580 Determination by the Secretary that States. a State is eligible. Discipline Procedures 300.720 Special rule. 300.581 Notice and hearing before 300.721 [Reserved] 300.519 Change of placement for determining that a State is not eligible. 300.722 Definition. disciplinary removals. 300.582 Hearing official or panel. 300.520 Authority of school personnel. 300.583 Hearing procedures. Reports 300.521 Authority of hearing officer. 300.584 Initial decision; final decision. 300.750 Annual report of children served— 300.522 Determination of setting. 300.585 Filing requirements. report requirement. 300.523 Manifestation determination 300.586 Judicial review. 300.751 Annual report of children served— review. 300.587 Enforcement. information required in the report. 300.524 Determination that behavior was 300.588 [Reserved] 300.752 Annual report of children served— not manifestation of disability. 300.589 Waiver of requirement regarding certification. 300.525 Parent appeal. supplementing and not supplanting with 300.753 Annual report of children served— 300.526 Placement during appeals. Part B funds. criteria for counting children. 300.527 Protections for children not yet Subpart FÐState Administration 300.754 Annual report of children served— eligible for special education and related other responsibilities of the SEA. services. General 300.755 Disproportionality. 300.528 Expedited due process hearings. 300.600 Responsibility for all educational 300.756 Acquisition of equipment; 300.529 Referral to and action by law programs. construction or alteration of facilities. enforcement and judicial authorities. 300.601 Relation of Part B to other Federal Appendix A to Part 300—Notice of Procedures for Evaluation and programs. Interpretation Determination of Eligibility 300.602 State-level activities. Appendix B to Part 300—Index for IDEA— Part B Regulations 300.530 General. Use of Funds Authority: 20 U.S.C. 1411–1420, unless 300.531 Initial evaluation. 300.620 Use of funds for State 300.532 Evaluation procedures. otherwise noted. administration. 300.533 Determination of needed 300.621 Allowable costs. Subpart AÐGeneral evaluation data. 300.622 Subgrants to LEAs for capacity- 300.534 Determination of eligibility. building and improvement. 300.535 Procedures for determining Purposes, Applicability, and 300.623 Amount required for subgrants to eligibility and placement. Regulations That Apply to This LEAs. 300.536 Reevaluation. Program 300.624 State discretion in awarding Additional Procedures for Evaluating subgrants. § 300.1 Purposes. Children With Specific Learning Disabilities State Advisory Panel The purposes of this part are— 300.540 Additional team members. 300.650 Establishment of advisory panels. 300.541 Criteria for determining the (a) To ensure that all children with 300.651 Membership. existence of a specific learning disability. disabilities have available to them a free 300.652 Advisory panel functions. appropriate public education that 300.542 Observation. 300.653 Advisory panel procedures. 300.543 Written report. emphasizes special education and State Complaint Procedures Least Restrictive Environment (LRE) related services designed to meet their 300.660 Adoption of State complaint unique needs and prepare them for 300.550 General LRE requirements. procedures. employment and independent living; 300.551 Continuum of alternative 300.661 Minimum State complaint placements. (b) To ensure that the rights of procedures. 300.552 Placements. children with disabilities and their 300.662 Filing a complaint. 300.553 Nonacademic settings. parents are protected; 300.554 Children in public or private Subpart GÐAllocation of Funds; Reports (c) To assist States, localities, institutions. educational service agencies, and 300.555 Technical assistance and training Allocations activities. 300.700 Special definition of the term Federal agencies to provide for the 300.556 Monitoring activities. ‘‘State.’’ education of all children with 300.701 Grants to States. disabilities; and Confidentiality of Information 300.702 Definition. (d) To assess and ensure the 300.560 Definitions. 300.703 Allocations to States. effectiveness of efforts to educate 300.561 Notice to parents. 300.704–300.705 [Reserved] 300.562 Access rights. 300.706 Permanent formula. children with disabilities. 300.563 Record of access. 300.707 Increase in funds. (Authority: 20 U.S.C. 1400 note)

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12421

§ 300.2 Applicability of this part to State, (Authority: 20 U.S.C. 1221e–3(a)(1)) referred to as emotional disturbance), an local, and private agencies. Definitions Used in This Part orthopedic impairment, autism, (a) States. This part applies to each traumatic brain injury, an other health State that receives payments under Part § 300.4 Act. impairment, a specific learning B of the Act. As used in this part, Act means the disability, deaf-blindness, or multiple (b) Public agencies within the State. Individuals with Disabilities Education disabilities, and who, by reason thereof, The provisions of this part— Act (IDEA), as amended. needs special education and related (1) Apply to all political subdivisions services. (Authority: 20 U.S.C. 1400(a)) of the State that are involved in the (2)(i) Subject to paragraph (a)(2)(ii) of education of children with disabilities, § 300.5 Assistive technology device. this section, if it is determined, through including— an appropriate evaluation under (i) The State educational agency As used in this part, Assistive technology device means any item, §§ 300.530–300.536, that a child has one (SEA); of the disabilities identified in (ii) Local educational agencies (LEAs), piece of equipment, or product system, paragraph (a)(1) of this section, but only educational service agencies (ESAs), whether acquired commercially off the needs a related service and not special and public charter schools that are not shelf, modified, or customized, that is education, the child is not a child with otherwise included as LEAs or ESAs used to increase, maintain, or improve a disability under this part. and are not a school of an LEA or ESA; the functional capabilities of a child (iii) Other State agencies and schools with a disability. (ii) If, consistent with § 300.26(a)(2), the related service required by the child (such as Departments of Mental Health (Authority: 20 U.S.C. 1401(1)) and Welfare and State schools for is considered special education rather children with deafness or children with § 300.6 Assistive technology service. than a related service under State blindness); and As used in this part, Assistive standards, the child would be (iv) State and local juvenile and adult technology service means any service determined to be a child with a correctional facilities; and that directly assists a child with a disability under paragraph (a)(1) of this (2) Are binding on each public agency disability in the selection, acquisition, section. in the State that provides special or use of an assistive technology device. (b) Children aged 3 through 9 education and related services to The term includes— experiencing developmental delays. The children with disabilities, regardless of (a) The evaluation of the needs of a term child with a disability for children whether that agency is receiving funds child with a disability, including a aged 3 through 9 may, at the discretion under Part B. functional evaluation of the child in the of the State and LEA and in accordance (c) Private schools and facilities. Each child’s customary environment; with § 300.313, include a child— public agency in the State is responsible (b) Purchasing, leasing, or otherwise (1) Who is experiencing for ensuring that the rights and providing for the acquisition of assistive developmental delays, as defined by the protections under Part B of the Act are technology devices by children with State and as measured by appropriate given to children with disabilities— disabilities; diagnostic instruments and procedures, (1) Referred to or placed in private (c) Selecting, designing, fitting, in one or more of the following areas: schools and facilities by that public customizing, adapting, applying, physical development, cognitive agency; or maintaining, repairing, or replacing development, communication (2) Placed in private schools by their assistive technology devices; development, social or emotional parents under the provisions of (d) Coordinating and using other development, or adaptive development; § 300.403(c). therapies, interventions, or services and (Authority: 20 U.S.C. 1412) with assistive technology devices, such (2) Who, by reason thereof, needs as those associated with existing special education and related services. § 300.3 Regulations that apply. education and rehabilitation plans and (c) Definitions of disability terms. The The following regulations apply to programs; terms used in this definition are defined this program: (e) Training or technical assistance for as follows: (a) 34 CFR part 76 (State- a child with a disability or, if (1)(i) Autism means a developmental Administered Programs) except for appropriate, that child’s family; and disability significantly affecting verbal §§ 76.125–76.137 and 76.650–76.662. (f) Training or technical assistance for and nonverbal communication and (b) 34 CFR part 77 (Definitions). professionals (including individuals (c) 34 CFR part 79 (Intergovernmental social interaction, generally evident providing education or rehabilitation Review of Department of Education before age 3, that adversely affects a services), employers, or other Programs and Activities). child’s educational performance. Other (d) 34 CFR part 80 (Uniform individuals who provide services to, characteristics often associated with Administrative Requirements for Grants employ, or are otherwise substantially autism are engagement in repetitive and Cooperative Agreements to State involved in the major life functions of activities and stereotyped movements, and Local Governments). that child. resistance to environmental change or (e) 34 CFR part 81 (General Education (Authority: 20 U.S.C. 1401(2)) change in daily routines, and unusual Provisions Act—Enforcement). responses to sensory experiences. The (f) 34 CFR part 82 (New Restrictions § 300.7 Child with a disability. term does not apply if a child’s on Lobbying). (a) General. (1) As used in this part, educational performance is adversely (g) 34 CFR part 85 (Government-wide the term child with a disability means a affected primarily because the child has Debarment and Suspension child evaluated in accordance with an emotional disturbance, as defined in (Nonprocurement) and Government- §§ 300.530–300.536 as having mental paragraph (b)(4) of this section. wide Requirements for Drug-Free retardation, a hearing impairment (ii) A child who manifests the Workplace (Grants)). including deafness, a speech or characteristics of ‘‘autism’’ after age 3 (h) The regulations in this part—34 language impairment, a visual could be diagnosed as having ‘‘autism’’ CFR part 300 (Assistance for Education impairment including blindness, serious if the criteria in paragraph (c)(1)(i) of of Children with Disabilities). emotional disturbance (hereafter this section are satisfied.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12422 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

(2) Deaf-blindness means concomitant adversely affects a child’s educational brain injuries that are congenital or hearing and visual impairments, the performance. The term includes degenerative, or to brain injuries combination of which causes such impairments caused by congenital induced by birth trauma. severe communication and other anomaly (e.g., clubfoot, absence of some (13) Visual impairment including developmental and educational needs member, etc.), impairments caused by blindness means an impairment in that they cannot be accommodated in disease (e.g., poliomyelitis, bone vision that, even with correction, special education programs solely for tuberculosis, etc.), and impairments adversely affects a child’s educational children with deafness or children with from other causes (e.g., cerebral palsy, performance. The term includes both blindness. amputations, and fractures or burns that partial sight and blindness. (3) Deafness means a hearing cause contractures). (Authority: 20 U.S.C. 1401(3)(A) and (B); impairment that is so severe that the (9) Other health impairment means 1401(26)) child is impaired in processing having limited strength, vitality or linguistic information through hearing, alertness, including a heightened § 300.8 Consent. with or without amplification, that alertness to environmental stimuli, that As used in this part, the term consent adversely affects a child’s educational results in limited alertness with respect has the meaning given that term in performance. to the educational environment, that— § 300.500(b)(1). (i) Is due to chronic or acute health (4) Emotional disturbance is defined (Authority: 20 U.S.C. 1415(a)) as follows: problems such as asthma, attention (i) The term means a condition deficit disorder or attention deficit § 300.9 Day; business day; school day. exhibiting one or more of the following hyperactivity disorder, diabetes, As used in this part, the term— characteristics over a long period of epilepsy, a heart condition, hemophilia, (a) Day means calendar day unless time and to a marked degree that lead poisoning, leukemia, nephritis, otherwise indicated as business day or adversely affects a child’s educational rheumatic fever, and sickle cell anemia; school day; performance: and (b) Business day means Monday (ii) Adversely affects a child’s (A) An inability to learn that cannot through Friday, except for Federal and educational performance. be explained by intellectual, sensory, or State holidays (unless holidays are (10) Specific learning disability is health factors. specifically included in the designation defined as follows: (B) An inability to build or maintain of business day, as in satisfactory interpersonal relationships (i) General. The term means a disorder in one or more of the basic § 300.403(d)(1)(ii)); and with peers and teachers. (c)(1) School day means any day, (C) Inappropriate types of behavior or psychological processes involved in understanding or in using language, including a partial day, that children are feelings under normal circumstances. in attendance at school for instructional (D) A general pervasive mood of spoken or written, that may manifest purposes. unhappiness or depression. itself in an imperfect ability to listen, (2) The term school day has the same (E) A tendency to develop physical think, speak, read, write, spell, or to do meaning for all children in school, symptoms or fears associated with mathematical calculations, including including children with and without personal or school problems. conditions such as perceptual (ii) The term includes schizophrenia. disabilities, brain injury, minimal brain disabilities. The term does not apply to children dysfunction, dyslexia, and (Authority: 20 U.S.C. 1221e–3) who are socially maladjusted, unless it developmental aphasia. § 300.10 Educational service agency. is determined that they have an (ii) Disorders not included. The term emotional disturbance. does not include learning problems that As used in this part, the term (5) Hearing impairment means an are primarily the result of visual, educational service agency— impairment in hearing, whether hearing, or motor disabilities, of mental (a) Means a regional public permanent or fluctuating, that adversely retardation, of emotional disturbance, or multiservice agency— affects a child’s educational of environmental, cultural, or economic (1) Authorized by State law to performance but that is not included disadvantage. develop, manage, and provide services under the definition of deafness in this (11) Speech or language impairment or programs to LEAs; and section. means a communication disorder, such (2) Recognized as an administrative (6) Mental retardation means as stuttering, impaired articulation, a agency for purposes of the provision of significantly subaverage general language impairment, or a voice special education and related services intellectual functioning, existing impairment, that adversely affects a provided within public elementary and concurrently with deficits in adaptive child’s educational performance. secondary schools of the State; behavior and manifested during the (12) Traumatic brain injury means an (b) Includes any other public developmental period, that adversely acquired injury to the brain caused by institution or agency having affects a child’s educational an external physical force, resulting in administrative control and direction performance. total or partial functional disability or over a public elementary or secondary (7) Multiple disabilities means psychosocial impairment, or both, that school; and concomitant impairments (such as adversely affects a child’s educational (c) Includes entities that meet the mental retardation-blindness, mental performance. The term applies to open definition of intermediate educational retardation-orthopedic impairment, or closed head injuries resulting in unit in section 602(23) of IDEA as in etc.), the combination of which causes impairments in one or more areas, such effect prior to June 4, 1997. such severe educational needs that they as cognition; language; memory; (Authority: 20 U.S.C. 1401(4)) cannot be accommodated in special attention; reasoning; abstract thinking; education programs solely for one of the judgment; problem-solving; sensory, § 300.11 Equipment. impairments. The term does not include perceptual, and motor abilities; As used in this part, the term deaf-blindness. psychosocial behavior; physical equipment means— (8) Orthopedic impairment means a functions; information processing; and (a) Machinery, utilities, and built-in severe orthopedic impairment that speech. The term does not apply to equipment and any necessary

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12423 enclosures or structures to house the IFSP has the meaning given the term in § 300.20 Parent. machinery, utilities, or equipment; and 34 CFR 303.340(b). (a) General. As used in this part, the (b) All other items necessary for the (Authority: 20 U.S.C. 1401(12)) term parent means— functioning of a particular facility as a (1) A natural or adoptive parent of a facility for the provision of educational § 300.18 Local educational agency. child; services, including items such as (a) As used in this part, the term local (2) A guardian but not the State if the instructional equipment and necessary educational agency means a public child is a ward of the State; furniture; printed, published and audio- board of education or other public (3) A person acting in the place of a visual instructional materials; authority legally constituted within a parent (such as a grandparent or telecommunications, sensory, and other State for either administrative control or stepparent with whom the child lives, technological aids and devices; and direction of, or to perform a service or a person who is legally responsible books, periodicals, documents, and function for, public elementary or for the child’s welfare); or other related materials. secondary schools in a city, county, (4) A surrogate parent who has been (Authority: 20 U.S.C. 1401(6)) township, school district, or other appointed in accordance with § 300.515. (b) Foster parent. Unless State law § 300.12 Evaluation. political subdivision of a State, or for a combination of school districts or prohibits a foster parent from acting as As used in this part, the term counties as are recognized in a State as a parent, a State may allow a foster evaluation has the meaning given that an administrative agency for its public parent to act as a parent under Part B term in § 300.500(b)(2). elementary or secondary schools. of the Act if— (1) The natural parents’ authority to (Authority: 20 U.S.C. 1415(a)) (b) The term includes— make educational decisions on the § 300.13 Free appropriate public (1) An educational service agency, as child’s behalf has been extinguished education. defined in § 300.10; under State law; and As used in this part, the term free (2) Any other public institution or (2) The foster parent— appropriate public education or FAPE agency having administrative control (i) Has an ongoing, long-term parental means special education and related and direction of a public elementary or relationship with the child; services that— secondary school, including a public (ii) Is willing to make the educational (a) Are provided at public expense, charter school that is established as an decisions required of parents under the under public supervision and direction, LEA under State law; and Act; and and without charge; (3) An elementary or secondary (iii) Has no interest that would (b) Meet the standards of the SEA, school funded by the Bureau of Indian conflict with the interests of the child. including the requirements of this part; (c) Include preschool, elementary Affairs, and not subject to the (Authority: 20 U.S.C. 1401(19)) jurisdiction of any SEA other than the school, or secondary school education § 300.21 Personally identifiable in the State; and Bureau of Indian Affairs, but only to the (d) Are provided in conformity with extent that the inclusion makes the As used in this part, the term an individualized education program school eligible for programs for which personally identifiable has the meaning (IEP) that meets the requirements of specific eligibility is not provided to the given that term in § 300.500(b)(3). §§ 300.340–300.350. school in another provision of law and (Authority: 20 U.S.C. 1415(a)) the school does not have a student (Authority: 20 U.S.C. 1401(8)) population that is smaller than the § 300.22 Public agency. § 300.14 Include. student population of the LEA receiving As used in this part, the term public As used in this part, the term include assistance under this Act with the agency includes the SEA, LEAs, ESAs, means that the items named are not all smallest student population. public charter schools that are not of the possible items that are covered, (Authority: 20 U.S.C. 1401(15)) otherwise included as LEAs or ESAs whether like or unlike the ones named. and are not a school of an LEA or ESA, § 300.19 Native language. and any other political subdivisions of (Authority: 20 U.S.C. 1221e–3) (a) As used in this part, the term the State that are responsible for § 300.15 Individualized education program. native language, if used with reference providing education to children with As used in this part, the term to an individual of limited English disabilities. individualized education program or proficiency, means the following: (Authority: 20 U.S.C. 1412(a)(1)(A), (a)(11)) IEP has the meaning given the term in (1) The language normally used by § 300.23 Qualified personnel. § 300.340(a). that individual, or, in the case of a As used in this part, the term (Authority: 20 U.S.C. 1401(11)) child, the language normally used by the parents of the child, except as qualified personnel means personnel § 300.16 Individualized education program provided in paragraph (a)(2) of this who have met SEA-approved or SEA- team. section. recognized certification, licensing, As used in this part, the term registration, or other comparable (2) In all direct contact with a child individualized education program team requirements that apply to the area in (including evaluation of the child), the or IEP team means a group of which the individuals are providing language normally used by the child in individuals described in § 300.344 that special education or related services. the home or learning environment. is responsible for developing, reviewing, (Authority: 20 U.S.C. 1221e–3) or revising an IEP for a child with a (b) For an individual with deafness or disability. blindness, or for an individual with no § 300.24 Related services. written language, the mode of (Authority: 20 U.S.C. 1221e–3) (a) General. As used in this part, the communication is that normally used by term related services means § 300.17 Individualized family service plan. the individual (such as sign language, transportation and such developmental, As used in this part, the term braille, or oral communication). corrective, and other supportive services individualized family service plan or (Authority: 20 U.S.C. 1401(16)) as are required to assist a child with a

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12424 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations disability to benefit from special (6) Orientation and mobility qualified personnel in individual or education, and includes speech- services— group sessions that focus specifically on language pathology and audiology (i) Means services provided to blind career development, employment services, psychological services, or visually impaired students by preparation, achieving independence, physical and occupational therapy, qualified personnel to enable those and integration in the workplace and recreation, including therapeutic students to attain systematic orientation community of a student with a recreation, early identification and to and safe movement within their disability. The term also includes assessment of disabilities in children, environments in school, home, and vocational rehabilitation services counseling services, including community; and provided to a student with disabilities rehabilitation counseling, orientation (ii) Includes teaching students the by vocational rehabilitation programs and mobility services, and medical following, as appropriate: funded under the Rehabilitation Act of services for diagnostic or evaluation (A) Spatial and environmental 1973, as amended. purposes. The term also includes school concepts and use of information (12) School health services means health services, social work services in received by the senses (such as sound, services provided by a qualified school schools, and parent counseling and temperature and vibrations) to establish, nurse or other qualified person. training. maintain, or regain orientation and line (13) Social work services in schools (b) Individual terms defined. The of travel (e.g., using sound at a traffic includes— terms used in this definition are defined light to cross the street); (i) Preparing a social or as follows: (B) To use the long cane to developmental history on a child with (1) Audiology includes— supplement visual travel skills or as a a disability; (i) Identification of children with tool for safely negotiating the (ii) Group and individual counseling hearing loss; environment for students with no with the child and family; (ii) Determination of the range, nature, available travel vision; (iii) Working in partnership with and degree of hearing loss, including (C) To understand and use remaining parents and others on those problems in referral for medical or other professional vision and distance low vision aids; and a child’s living situation (home, school, attention for the habilitation of hearing; (D) Other concepts, techniques, and and community) that affect the child’s (iii) Provision of habilitative tools. adjustment in school; activities, such as language habilitation, (7) Parent counseling and training (iv) Mobilizing school and community auditory training, speech reading (lip- means— resources to enable the child to learn as reading), hearing evaluation, and speech (i) Assisting parents in understanding effectively as possible in his or her conservation; the special needs of their child; educational program; and (iv) Creation and administration of (ii) Providing parents with (v) Assisting in developing positive programs for prevention of hearing loss; information about child development; behavioral intervention strategies. (v) Counseling and guidance of and (14) Speech-language pathology children, parents, and teachers (iii) Helping parents to acquire the services includes— regarding hearing loss; and necessary skills that will allow them to (i) Identification of children with (vi) Determination of children’s needs support the implementation of their speech or language impairments; for group and individual amplification, child’s IEP or IFSP. (ii) Diagnosis and appraisal of specific selecting and fitting an appropriate aid, (8) Physical therapy means services speech or language impairments; and evaluating the effectiveness of provided by a qualified physical (iii) Referral for medical or other amplification. therapist. professional attention necessary for the (2) Counseling services means services (9) Psychological services includes— habilitation of speech or language provided by qualified social workers, (i) Administering psychological and impairments; psychologists, guidance counselors, or educational tests, and other assessment (iv) Provision of speech and language other qualified personnel. procedures; services for the habilitation or (3) Early identification and (ii) Interpreting assessment results; prevention of communicative assessment of disabilities in children (iii) Obtaining, integrating, and impairments; and means the implementation of a formal interpreting information about child (v) Counseling and guidance of plan for identifying a disability as early behavior and conditions relating to parents, children, and teachers as possible in a child’s life. learning; regarding speech and language (4) Medical services means services (iv) Consulting with other staff impairments. provided by a licensed physician to members in planning school programs (15) Transportation includes— determine a child’s medically related to meet the special needs of children as (i) Travel to and from school and disability that results in the child’s need indicated by psychological tests, between schools; for special education and related interviews, and behavioral evaluations; (ii) Travel in and around school services. (v) Planning and managing a program buildings; and (5) Occupational therapy— of psychological services, including (iii) Specialized equipment (such as (i) Means services provided by a psychological counseling for children special or adapted buses, lifts, and qualified occupational therapist; and and parents; and ramps), if required to provide special (ii) Includes— (vi) Assisting in developing positive transportation for a child with a (A) Improving, developing or behavioral intervention strategies. disability. restoring functions impaired or lost (10) Recreation includes— (Authority: 20 U.S.C. 1401(22)) through illness, injury, or deprivation; (i) Assessment of leisure function; (B) Improving ability to perform tasks (ii) Therapeutic recreation services; § 300.25 Secondary school. for independent functioning if functions (iii) Recreation programs in schools As used in this part, the term are impaired or lost; and and community agencies; and secondary school means a nonprofit (C) Preventing, through early (iv) Leisure education. institutional day or residential school intervention, initial or further (11) Rehabilitation counseling that provides secondary education, as impairment or loss of function. services means services provided by determined under State law, except that

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12425 it does not include any education (ii) Learn the skills necessary to move if required to assist a student with a beyond grade 12. effectively and safely from place to disability to benefit from special (Authority: 20 U.S.C. 1401(23)) place within that environment (e.g., in education. school, in the home, at work, and in the (Authority: 20 U.S.C. 1401(30)) § 300.26 Special education. community). (a) General. (1) As used in this part, (5) Vocational education means § 300.30 Definitions in EDGAR. the term special education means organized educational programs that are The following terms used in this part specially designed instruction, at no directly related to the preparation of are defined in 34 CFR 77.1: cost to the parents, to meet the unique individuals for paid or unpaid Application needs of a child with a disability, employment, or for additional Award including— preparation for a career requiring other Contract (i) Instruction conducted in the than a baccalaureate or advanced Department classroom, in the home, in hospitals and degree. EDGAR institutions, and in other settings; and (Authority: 20 U.S.C. 1401(25)) Elementary school (ii) Instruction in physical education. Fiscal year (2) The term includes each of the § 300.27 State. Grant following, if it meets the requirements As used in this part, the term State Nonprofit of paragraph (a)(1) of this section: means each of the 50 States, the District Project (i) Speech-language pathology of Columbia, the Commonwealth of Secretary services, or any other related service, if Puerto Rico, and each of the outlying Subgrant the service is considered special areas. State educational agency education rather than a related service (Authority: 20 U.S.C. 1221e–3(a)(1)) under State standards; (Authority: 20 U.S.C. 1401(27)) (ii) Travel training; and § 300.28 Supplementary aids and services. Subpart BÐState and Local Eligibility (iii) Vocational education. As used in this part, the term (b) Individual terms defined. The State Eligibility—General supplementary aids and services means, terms in this definition are defined as aids, services, and other supports that § 300.110 Condition of assistance. follows: are provided in regular education (1) At no cost means that all specially- (a) A State is eligible for assistance classes or other education-related designed instruction is provided under Part B of the Act for a fiscal year settings to enable children with without charge, but does not preclude if the State demonstrates to the disabilities to be educated with incidental fees that are normally satisfaction of the Secretary that the nondisabled children to the maximum charged to nondisabled students or their State has in effect policies and extent appropriate in accordance with parents as a part of the regular procedures to ensure that it meets the §§ 300.550–300.556. education program. conditions in §§ 300.121–300.156. (2) Physical education— (Authority: 20 U.S.C. 1401(29)) (b) To meet the requirement of (i) Means the development of— paragraph (a) of this section, the State § 300.29 Transition services. (A) Physical and motor fitness; must have on file with the Secretary— (B) Fundamental motor skills and (a) As used in this part, transition (1) The information specified in patterns; and services means a coordinated set of §§ 300.121–300.156 that the State uses (C) Skills in aquatics, dance, and activities for a student with a disability to implement the requirements of this individual and group games and sports that— part; and (including intramural and lifetime (1) Is designed within an outcome- (2) Copies of all applicable State sports); and oriented process, that promotes statutes, regulations, and other State (ii) Includes special physical movement from school to post-school documents that show the basis of that education, adapted physical education, activities, including postsecondary information. movement education, and motor education, vocational training, (Authority: 20 U.S.C. 1412(a)) development. integrated employment (including (3) Specially-designed instruction supported employment), continuing and § 300.111 Exception for prior State policies means adapting, as appropriate to the adult education, adult services, and procedures on file with the Secretary. needs of an eligible child under this independent living, or community If a State has on file with the part, the content, methodology, or participation; Secretary policies and procedures delivery of instruction— (2) Is based on the individual approved by the Secretary that (i) To address the unique needs of the student’s needs, taking into account the demonstrate that the State meets any child that result from the child’s student’s preferences and interests; and requirement of § 300.110, including any disability; and (3) Includes— policies and procedures filed under Part (ii) To ensure access of the child to (i) Instruction; B of the Act as in effect before June 4, the general curriculum, so that he or she (ii) Related services; 1997, the Secretary considers the State can meet the educational standards (iii) Community experiences; to have met the requirement for within the jurisdiction of the public (iv) The development of employment purposes of receiving a grant under Part agency that apply to all children. and other post-school adult living B of the Act. (4) Travel training means providing objectives; and (Authority: 20 U.S.C. 1412(c)(1)) instruction, as appropriate, to children (v) If appropriate, acquisition of daily with significant cognitive disabilities, living skills and functional vocational § 300.112 Amendments to State policies and any other children with disabilities evaluation. and procedures. who require this instruction, to enable (b) Transition services for students (a) Modifications made by a State. (1) them to— with disabilities may be special Subject to paragraph (b) of this section, (i) Develop an awareness of the education, if provided as specially policies and procedures submitted by a environment in which they live; and designed instruction, or related services, State in accordance with this subpart

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12426 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations remain in effect until the State submits (B) Is consistent with the progress in the general curriculum and to the Secretary the modifications that requirements of §§ 300.300–300.313; appropriately advance toward achieving the State decides are necessary. and the goals set out in the child’s IEP if the (2) The provisions of this subpart (ii) Applies to all children with child is removed under the authority of apply to a modification to a State’s disabilities, including children who school personnel to remove for not more policies and procedures in the same have been suspended or expelled from than 10 consecutive school days as long manner and to the same extent that they school. as that removal does not constitute a apply to the State’s original policies and (c) FAPE for children beginning at age change of placement under § 300.519 procedures. 3. (1) Each State shall ensure that— (§ 300.520(a)(1)). (b) Modifications required by the (i) The obligation to make FAPE (ii) The child’s IEP team determines Secretary. The Secretary may require a available to each eligible child residing the extent to which services are State to modify its policies and in the State begins no later than the necessary to enable the child to procedures, but only to the extent child’s third birthday; and appropriately progress in the general necessary to ensure the State’s (ii) An IEP or an IFSP is in effect for curriculum and appropriately advance compliance with this part, if— the child by that date, in accordance toward achieving the goals set out in the (1) After June 4, 1997, the provisions with § 300.342(c). child’s IEP if the child is removed of the Act or the regulations in this part (2) If a child’s third birthday occurs because of behavior that has been are amended; during the summer, the child’s IEP team determined not to be a manifestation of (2) There is a new interpretation of shall determine the date when services the child’s disability, consistent with this Act or regulations by a Federal under the IEP or IFSP will begin. § 300.524. court or a State’s highest court; or (d) FAPE for children suspended or (e) Children advancing from grade to (3) There is an official finding of expelled from school. (1) A public grade. (1) Each State shall ensure that noncompliance with Federal law or agency need not provide services during FAPE is available to any individual regulations. periods of removal under § 300.520(a)(1) child with a disability who needs to a child with a disability who has been special education and related services, (Authority: 20 U.S.C. 1412(c)(2) and (3)) removed from his or her current even though the child is advancing from § 300.113 Approval by the Secretary. placement for 10 school days or less in grade to grade. that school year, if services are not (a) General. If the Secretary (2) The determination that a child provided to a child without disabilities determines that a State is eligible to described in paragraph (a)(1) of this who has been similarly removed. receive a grant under Part B of the Act, section is eligible under this part, must (2) In the case of a child with a the Secretary notifies the State of that be made on an individual basis by the disability who has been removed from determination. group responsible within the child’s his or her current placement for more (b) Notice and hearing before LEA for making those determinations. than 10 school days in that school year, determining a State is not eligible. The (Authority: 20 U.S.C. 1412(a)(1)) the public agency, for the remainder of Secretary does not make a final the removals, must— § 300.122 Exception to FAPE for certain determination that a State is not eligible (i) Provide services to the extent ages. to receive a grant under Part B of the Act necessary to enable the child to (a) General. The obligation to make until after providing the State appropriately progress in the general reasonable notice and an opportunity FAPE available to all children with curriculum and appropriately advance disabilities does not apply with respect for a hearing in accordance with the toward achieving the goals set out in the procedures in §§ 300.581–300.586. to the following: child’s IEP, if the removal is— (1) Children aged 3, 4, 5, 18, 19, 20, (Authority: 20 U.S.C. 1412(d)) (A) Under the school personnel’s or 21 in a State to the extent that its authority to remove for not more than §§ 300.114Ð300.120 [Reserved] application to those children would be 10 consecutive school days as long as inconsistent with State law or practice, State Eligibility—Specific Conditions that removal does not constitute a or the order of any court, respecting the change of placement under § 300.519(b) provision of public education to § 300.121 Free appropriate public (§ 300.520((a)(1)); or education (FAPE). children in one or more of those age (B) For behavior that is not a groups. (a) General. Each State must have on manifestation of the child’s disability, (2)(i) Students aged 18 through 21 to file with the Secretary information that consistent with § 300.524; and the extent that State law does not shows that, subject to § 300.122, the (ii) Provide services consistent with require that special education and State has in effect a policy that ensures § 300.522, regarding determination of related services under Part B of the Act that all children with disabilities aged 3 the appropriate interim alternative be provided to students with disabilities through 21 residing in the State have the educational setting, if the removal is— who, in the last educational placement right to FAPE, including children with (A) For drug or weapons offenses prior to their incarceration in an adult disabilities who have been suspended or under § 300.520(a)(2); or correctional facility— expelled from school. (B) Based on a hearing officer (A) Were not actually identified as (b) Required information. The determination that maintaining the being a child with a disability under information described in paragraph (a) current placement of the child is § 300.7; and of this section must— substantially likely to result in injury to (B) Did not have an IEP under Part B (1) Include a copy of each State the child or to others if he or she of the Act. statute, court order, State Attorney remains in the current placement, (ii) The exception in paragraph General opinion, and other State consistent with § 300.521. (a)(2)(i) of this section does not apply to documents that show the source of the (3)(i) School personnel, in students with disabilities, aged 18 State’s policy relating to FAPE; and consultation with the child’s special through 21, who— (2) Show that the policy— education teacher, determine the extent (A) Had been identified as a child (i)(A) Applies to all public agencies in to which services are necessary to with disability and had received the State; and enable the child to appropriately services in accordance with an IEP, but

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12427 who left school prior to their children are currently receiving needed (d) Construction. Nothing in the Act incarceration; or special education and related services. requires that children be classified by (B) Did not have an IEP in their last (2) The requirements of paragraph their disability so long as each child educational setting, but who had (a)(1) of this section apply to— who has a disability listed in § 300.7 actually been identified as a ‘‘child with (i) Highly mobile children with and who, by reason of that disability, a disability’’ under § 300.7. disabilities (such as migrant and needs special education and related (3)(i) Students with disabilities who homeless children); and services is regarded as a child with a have graduated from high school with a (ii) Children who are suspected of disability under Part B of the Act. regular high school diploma. being a child with a disability under (e) Confidentiality of child find data. (ii) The exception in paragraph § 300.7 and in need of special The collection and use of data to meet (a)(3)(i) of this section does not apply to education, even though they are the requirements of this section are students who have graduated but have advancing from grade to grade. subject to the confidentiality not been awarded a regular high school (b) Documents relating to child find. requirements of §§ 300.560–300.577. diploma. The State must have on file with the (Authority: 20 U.S.C. 1412 (a)(3)(A) and (B)) (iii) Graduation from high school with Secretary the policies and procedures a regular diploma constitutes a change described in paragraph (a) of this § 300.126 Procedures for evaluation and in placement, requiring written prior section, including— determination of eligibility. notice in accordance with § 300.503. (1) The name of the State agency (if The State must have on file with the (b) Documents relating to exceptions. other than the SEA) responsible for Secretary policies and procedures that The State must have on file with the coordinating the planning and ensure that the requirements of Secretary— implementation of the policies and §§ 300.530–300.536 are met. (1)(i) Information that describes in procedures under paragraph (a) of this (Authority: 20 U.S.C. 1412(a)(6)(B), (7)) detail the extent to which the exception section; in paragraph (a)(1) of this section § 300.127 Confidentiality of personally (2) The name of each agency that identifiable information. applies to the State; and participates in the planning and (ii) A copy of each State law, court implementation of the child find (a) The State must have on file in order, and other documents that provide activities and a description of the nature detail the policies and procedures that a basis for the exception; and and extent of its participation; the State has undertaken to ensure (2) With respect to paragraph (a)(2) of (3) A description of how the policies protection of the confidentiality of any this section, a copy of the State law that and procedures under paragraph (a) of personally identifiable information, excludes from services under Part B of this section will be monitored to ensure collected, used, or maintained under the Act certain students who are that the SEA obtains— Part B of the Act. (b) The Secretary uses the criteria in incarcerated in an adult correctional (i) The number of children with §§ 300.560–300.576 to evaluate the facility. disabilities within each disability policies and procedures of the State category that have been identified, (Authority: 20 U.S.C. 1412(a)(1)(B)) under paragraph (a) of this section. located, and evaluated; and § 300.123 Full educational opportunity (ii) Information adequate to evaluate (Authority: 20 U.S.C. 1412(a)(8)) goal (FEOG). the effectiveness of those policies and § 300.128 Individualized education The State must have on file with the procedures; and programs. Secretary detailed policies and (4) A description of the method the (a) General. The State must have on procedures through which the State has State uses to determine which children file with the Secretary information that established a goal of providing full are currently receiving special shows that an IEP, or an IFSP that meets educational opportunity to all children education and related services. the requirements of section 636(d) of the with disabilities aged birth through 21. (c) Child find for children from birth Act, is developed, reviewed, and revised (Authority: 20 U.S.C. 1412(a)(2)) through age 2 when the SEA and lead for each child with a disability in agency for the Part C program are § 300.124 FEOGÐtimetable. accordance with §§ 300.340–300.350. different. (1) In States where the SEA (b) Required information. The The State must have on file with the and the State’s lead agency for the Part information described in paragraph (a) Secretary a detailed timetable for C program are different and the Part C of this section must include— accomplishing the goal of providing full lead agency will be participating in the (1) A copy of each State statute, educational opportunity for all children child find activities described in policy, and standard that regulates the with disabilities. paragraph (a) of this section, a manner in which IEPs are developed, (Authority: 20 U.S.C. 1412(a)(2)) description of the nature and extent of implemented, reviewed, and revised; the Part C lead agency’s participation and § 300.125 Child find. must be included under paragraph (b)(2) (2) The procedures that the SEA (a) General requirement. (1) The State of this section. follows in monitoring and evaluating must have in effect policies and (2) With the SEA’s agreement, the Part those IEPs or IFSPs. procedures to ensure that— C lead agency’s participation may (Authority: 20 U.S.C. 1412(a)(4)) (i) All children with disabilities include the actual implementation of residing in the State, including children child find activities for infants and § 300.129 Procedural safeguards. with disabilities attending private toddlers with disabilities. (a) The State must have on file with schools, regardless of the severity of (3) The use of an interagency the Secretary procedural safeguards that their disability, and who are in need of agreement or other mechanism for ensure that the requirements of special education and related services, providing for the Part C lead agency’s §§ 300.500–300.529 are met. are identified, located, and evaluated; participation does not alter or diminish (b) Children with disabilities and and the responsibility of the SEA to ensure their parents must be afforded the (ii) A practical method is developed compliance with the requirements of procedural safeguards identified in and implemented to determine which this section. paragraph (a) of this section.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12428 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

(Authority: 20 U.S.C. 1412(a)(6)(A)) § 300.134 [Reserved] Secretary policies and procedures relating to the establishment and § 300.130 Least restrictive environment. § 300.135 Comprehensive system of personnel development. maintenance of standards to ensure that (a) General. The State must have on personnel necessary to carry out the (a) General. The State must have in file with the Secretary procedures that purposes of this part are appropriately effect, consistent with the purposes of ensure that the requirements of and adequately prepared and trained. §§ 300.550–300.556 are met, including this part and with section 635(a)(8) of (ii) The policies and procedures the provision in § 300.551 requiring a the Act, a comprehensive system of required in paragraph (b)(1)(i) of this continuum of alternative placements to personnel development that— section must provide for the (1) Is designed to ensure an adequate meet the unique needs of each child establishment and maintenance of supply of qualified special education, with a disability. standards that are consistent with any regular education, and related services State-approved or -recognized (b) Additional requirement. (1) If the personnel; and State uses a funding mechanism by (2) Meets the requirements for a State certification, licensing, registration, or which the State distributes State funds improvement plan relating to personnel other comparable requirements that on the basis of the type of setting where development in section 653(b)(2)(B) and apply to the profession or discipline in a child is served, the funding (c)(3)(D) of the Act. which a person is providing special mechanism may not result in (b) Information. The State must have education or related services. placements that violate the on file with the Secretary information (2) Each State may— (i) Determine the specific requirements of paragraph (a) of this that shows that the requirements of section. paragraph (a) of this section are met. occupational categories required to provide special education and related (2) If the State does not have policies (Authority: 20 U.S.C. 1412(a)(14)) services within the State; and and procedures to ensure compliance § 300.136 Personnel standards. (ii) Revise or expand those categories with paragraph (b)(1) of this section, the as needed. State must provide the Secretary an (a) Definitions. As used in this part— (3) Nothing in this part requires a (1) Appropriate professional assurance that the State will revise the State to establish a specified training requirements in the State means entry funding mechanism as soon as feasible standard (e.g., a masters degree) for to ensure that the mechanism does not level requirements that— (i) Are based on the highest personnel who provide special result in placements that violate that education and related services under paragraph. requirements in the State applicable to the profession or discipline in which a Part B of the Act. (4) A State with only one entry-level (Authority: 20 U.S.C. 1412(a)(5)) person is providing special education or academic degree for employment of § 300.131 [Reserved] related services; and (ii) Establish suitable qualifications personnel in a specific profession or § 300.132 Transition of children from Part for personnel providing special discipline may modify that standard as C to preschool programs. education and related services under necessary to ensure the provision of FAPE to all children with disabilities in The State must have on file with the Part B of the Act to children with disabilities who are served by State, the State without violating the Secretary policies and procedures to requirements of this section. ensure that— local, and private agencies (see § 300.2); (2) Highest requirements in the State (c) Steps for retraining or hiring (a) Children participating in early- applicable to a specific profession or personnel. To the extent that a State’s intervention programs assisted under discipline means the highest entry-level standards for a profession or discipline, Part C of the Act, and who will academic degree needed for any State- including standards for temporary or participate in preschool programs approved or -recognized certification, emergency certification, are not based assisted under Part B of the Act, licensing, registration, or other on the highest requirements in the State experience a smooth and effective comparable requirements that apply to applicable to a specific profession or transition to those preschool programs that profession or discipline; discipline, the State must provide the in a manner consistent with section (3) Profession or discipline means a steps the State is taking and the 637(a)(8) of the Act; specific occupational category that— procedures for notifying public agencies (b) By the third birthday of a child (i) Provides special education and and personnel of those steps and the described in paragraph (a) of this related services to children with timelines it has established for the section, an IEP or, if consistent with disabilities under Part B of the Act; retraining or hiring of personnel to meet § 300.342(c) and section 636(d) of the (ii) Has been established or designated appropriate professional requirements Act, an IFSP, has been developed and is by the State; in the State. being implemented for the child (iii) Has a required scope of (d) Status of personnel standards in consistent with § 300.121(c); and responsibility and degree of the State. (1) In meeting the (c) Each LEA will participate in supervision; and requirements in paragraphs (b) and (c) transition planning conferences (iv) Is not limited to traditional of this section, a determination must be arranged by the designated lead agency occupational categories; and made about the status of personnel under section 637(a)(8) of the Act. (4) State-approved or -recognized standards in the State. That certification, licensing, registration, or determination must be based on current (Authority: 20 U.S.C. 1412(a)(9)) other comparable requirements means information that accurately describes, § 300.133 Children in private schools. the requirements that a State legislature for each profession or discipline in either has enacted or has authorized a which personnel are providing special The State must have on file with the State agency to promulgate through education or related services, whether Secretary policies and procedures that rules to establish the entry-level the applicable standards are consistent ensure that the requirements of standards for employment in a specific with the highest requirements in the §§ 300.400–300.403 and §§ 300.450– profession or discipline in that State. State for that profession or discipline. 300.462 are met. (b) Policies and procedures. (1)(i) The (2) The information required in (Authority: 20 U.S.C. 1413(a)(4)) State must have on file with the paragraph (d)(1) of this section must be

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12429 on file in the SEA and available to the (a) Has established goals for the (2) The performance results of the public. performance of children with children described in paragraph (a)(1) of (e) Applicability of State statutes and disabilities in the State that— this section if doing so would be agency rules. In identifying the highest (1) Will promote the purposes of this statistically sound and would not result requirements in the State for purposes part, as stated in § 300.1; and in the disclosure of performance results of this section, the requirements of all (2) Are consistent, to the maximum identifiable to individual children— State statutes and the rules of all State extent appropriate, with other goals and (i) On regular assessments (beginning agencies applicable to serving children standards for all children established by not later than July 1, 1998); and with disabilities must be considered. the State; (ii) On alternate assessments (not later (f) Use of paraprofessionals and (b) Has established performance than July 1, 2000). assistants. A State may allow indicators that the State will use to (b) Combined reports. Reports to the paraprofessionals and assistants who are assess progress toward achieving those public under paragraph (a) of this appropriately trained and supervised, in goals that, at a minimum, address the section must include— accordance with State law, regulations, performance of children with (1) Aggregated data that include the or written policy, in meeting the disabilities on assessments, drop-out performance of children with requirements of this part to be used to rates, and graduation rates; disabilities together with all other assist in the provision of special (c) Every two years, will report to the children; and education and related services to Secretary and the public on the progress (2) Disaggregated data on the children with disabilities under Part B of the State, and of children with performance of children with of the Act. disabilities in the State, toward meeting disabilities. (g) Policy to address shortage of the goals established under paragraph (c) Timeline for disaggregation of personnel. (1) In implementing this (a) of this section; and data. Data relating to the performance of section, a State may adopt a policy that (d) Based on its assessment of that children described under paragraph includes a requirement that LEAs in the progress, will revise its State (a)(2) of this section must be State make an ongoing good faith effort improvement plan under subpart 1 of disaggregated— to recruit and hire appropriately and Part D of the Act as may be needed to (1) For assessments conducted after adequately trained personnel to provide improve its performance, if the State July 1, 1998; and special education and related services to receives assistance under that subpart. (2) For assessments conducted before children with disabilities, including, in (Authority: 20 U.S.C. 1412(a)(16)) July 1, 1998, if the State is required to a geographic area of the State where disaggregate the data prior to July 1, § 300.138 Participation in assessments. there is a shortage of personnel that 1998. meet these qualifications, the most The State must have on file with the (Authority: 20 U.S.C. 612(a)(17)(B)) qualified individuals available who are Secretary information to demonstrate § 300.140 [Reserved] making satisfactory progress toward that— (a) Children with disabilities are completing applicable course work § 300.141 SEA responsibility for general necessary to meet the standards included in general State and district- supervision. wide assessment programs, with described in paragraph (b)(2) of this (a) The State must have on file with appropriate accommodations and section, consistent with State law and the Secretary information that shows modifications in administration, if the steps described in paragraph (c) of that the requirements of § 300.600 are this section, within three years. necessary; (b) As appropriate, the State or LEA— met. (2) If a State has reached its (1) Develops guidelines for the (b) The information described under established date under paragraph (c) of participation of children with paragraph (a) of this section must this section, the State may still exercise disabilities in alternate assessments for include a copy of each State statute, the option under paragraph (g)(1) of this those children who cannot participate State regulation, signed agreement section for training or hiring all in State and district-wide assessment between respective agency officials, and personnel in a specific profession or programs; any other documents that show discipline to meet appropriate (2) Develops alternate assessments in compliance with that paragraph. professional requirements in the State. accordance with paragraph (b)(1) of this (Authority: 20 U.S.C. 1412(a)(11)) (3)(i) Each State must have a section; and mechanism for serving children with (3) Beginning not later than, July 1, § 300.142 Methods of ensuring services. disabilities if instructional needs exceed 2000, conducts the alternate (a) Establishing responsibility for available personnel who meet assessments described in paragraph services. The Chief Executive Officer or appropriate professional requirements (b)(2) of this section. designee of that officer shall ensure that in the State for a specific profession or an interagency agreement or other (Authority: 20 U.S.C. 1412(a)(17)(A)) discipline. mechanism for interagency coordination (ii) A State that continues to § 300.139 Reports relating to is in effect between each experience shortages of qualified assessments. noneducational public agency described personnel must address those shortages (a) General. In implementing the in paragraph (b) of this section and the in its comprehensive system of requirements of § 300.138, the SEA shall SEA, in order to ensure that all services personnel development under make available to the public, and report described in paragraph (b)(1) of this § 300.135. to the public with the same frequency section that are needed to ensure FAPE (Authority: 20 U.S.C. 1412(a)(15)) and in the same detail as it reports on are provided, including the provision of the assessment of nondisabled children, these services during the pendency of § 300.137 Performance goals and the following information: any dispute under paragraph (a)(3) of indicators. (1) The number of children with this section. The agreement or The State must have on file with the disabilities participating— mechanism must include the following: Secretary information to demonstrate (i) In regular assessments; and (1) Agency financial responsibility. that the State— (ii) In alternate assessments. An identification of, or a method for

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12430 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations defining, the financial responsibility of section, the LEA (or State agency (C) Increase premiums or lead to the each agency for providing services responsible for developing the child’s discontinuation of insurance; or described in paragraph (b)(1) of this IEP) shall provide or pay for these (D) Risk loss of eligibility for home section to ensure FAPE to children with services to the child in a timely manner. and community-based waivers, based on disabilities. The financial responsibility The LEA or State agency may then claim aggregate health-related expenditures. of each noneducational public agency reimbursement for the services from the (f) Children with disabilities who are described in paragraph (b) of this noneducational public agency that covered by private insurance. (1) With section, including the State Medicaid failed to provide or pay for these regard to services required to provide agency and other public insurers of services and that agency shall reimburse FAPE to an eligible child under this children with disabilities, must precede the LEA or State agency in accordance part, a public agency may access a the financial responsibility of the LEA with the terms of the interagency parent’s private insurance proceeds only (or the State agency responsible for agreement or other mechanism if the parent provides informed consent developing the child’s IEP). described in paragraph (a)(1) of this consistent with § 300.500(b)(1). (2) Conditions and terms of section, and the agreement described in reimbursement. The conditions, terms, paragraph (a)(2) of this section. (2) Each time the public agency and procedures under which an LEA (c) Special rule. The requirements of proposes to access the parent’s private must be reimbursed by other agencies. paragraph (a) of this section may be met insurance proceeds, it must— (3) Interagency disputes. Procedures through— (i) Obtain parent consent in for resolving interagency disputes (1) State statute or regulation; accordance with paragraph (f)(1) of this (including procedures under which (2) Signed agreements between section; and LEAs may initiate proceedings) under respective agency officials that clearly (ii) Inform the parents that their the agreement or other mechanism to identify the responsibilities of each refusal to permit the public agency to secure reimbursement from other agency relating to the provision of access their private insurance does not agencies or otherwise implement the services; or relieve the public agency of its provisions of the agreement or (3) Other appropriate written methods responsibility to ensure that all required mechanism. as determined by the Chief Executive services are provided at no cost to the (4) Coordination of services Officer of the State or designee of that parents. procedures. Policies and procedures for officer. (g) Use of Part B funds. (1) If a public agencies to determine and identify the (d) Information. The State must have agency is unable to obtain parental interagency coordination on file with the Secretary information to consent to use the parent’s private responsibilities of each agency to demonstrate that the requirements of insurance, or public insurance when the promote the coordination and timely paragraphs (a) through (c) of this section parent would incur a cost for a specified and appropriate delivery of services are met. described in paragraph (b)(1) of this (e) Children with disabilities who are service required under this part, to section. covered by public insurance. (1) A ensure FAPE the public agency may use (b) Obligation of noneducational public agency may use the Medicaid or its Part B funds to pay for the service. public agencies. (1) General. (i) If any other public insurance benefits (2) To avoid financial cost to parents public agency other than an educational programs in which a child participates who otherwise would consent to use agency is otherwise obligated under to provide or pay for services required private insurance, or public insurance if Federal or State law, or assigned under this part, as permitted under the the parent would incur a cost, the responsibility under State policy or public insurance program, except as public agency may use its Part B funds pursuant to paragraph (a) of this section, provided in paragraph (e)(2) of this to pay the cost the parents otherwise to provide or pay for any services that section. would have to pay to use the parent’s are also considered special education or (2) With regard to services required to insurance (e.g., the deductible or co-pay related services (such as, but not limited provide FAPE to an eligible child under amounts). to, services described in § 300.5 relating this part, the public agency— (h) Proceeds from public or private to assistive technology devices, § 300.6 (i) May not require parents to sign up insurance. (1) Proceeds from public or relating to assistive technology services, for or enroll in public insurance private insurance will not be treated as § 300.24 relating to related services, programs in order for their child to program income for purposes of 34 CFR § 300.28 relating to supplementary aids receive FAPE under Part B of the Act; 80.25. and services, and § 300.29 relating to (ii) May not require parents to incur (2) If a public agency spends transition services) that are necessary an out-of-pocket expense such as the reimbursements from Federal funds for ensuring FAPE to children with payment of a deductible or co-pay (e.g., Medicaid) for services under this disabilities within the State, the public amount incurred in filing a claim for part, those funds will not be considered agency shall fulfill that obligation or services provided pursuant to this part, ‘‘State or local’’ funds for purposes of responsibility, either directly or through but pursuant to paragraph (g)(2) of this the maintenance of effort provisions in contract or other arrangement. section, may pay the cost that the parent §§ 300.154 and 300.231. (ii) A noneducational public agency otherwise would be required to pay; and described in paragraph (b)(1)(i) of this (iii) May not use a child’s benefits (i) Construction. Nothing in this part section may not disqualify an eligible under a public insurance program if that should be construed to alter the service for Medicaid reimbursement use would— requirements imposed on a State because that service is provided in a (A) Decrease available lifetime Medicaid agency, or any other agency school context. coverage or any other insured benefit; administering a public insurance (2) Reimbursement for services by (B) Result in the family paying for program by Federal statute, regulations noneducational public agency. If a services that would otherwise be or policy under title XIX, or title XXI of public agency other than an educational covered by the public insurance the Social Security Act, or any other agency fails to provide or pay for the program and that are required for the public insurance program. special education and related services child outside of the time the child is in (Authority: 20 U.S.C. 1412(a)(12)(A), (B), and described in paragraph (b)(1) of this school; (C); 1401(8))

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12431

§ 300.143 SEA implementation of § 300.147 Additional information if SEA § 300.151 [Reserved] procedural safeguards. provides direct services. § 300.152 Prohibition against The State must have on file with the (a) If the SEA provides FAPE to commingling. Secretary the procedures that the SEA children with disabilities, or provides (a) The State must have on file with (and any agency assigned responsibility direct services to these children, the the Secretary an assurance satisfactory pursuant to § 300.600(d)) follows to agency— to the Secretary that the funds under inform each public agency of its (1) Shall comply with any additional Part B of the Act are not commingled responsibility for ensuring effective requirements of §§ 300.220–300.230(a) with State funds. implementation of procedural and 300.234–300.250 as if the agency (b) The assurance in paragraph (a) of safeguards for the children with were an LEA; and this section is satisfied by the use of a disabilities served by that public (2) May use amounts that are separate accounting system that agency. otherwise available to the agency under includes an audit trail of the (Authority: 20 U.S.C. 1412(a)(11); 1415(a)) Part B of the Act to serve those children expenditure of the Part B funds. without regard to § 300.184 (relating to Separate bank accounts are not required. § 300.144 Hearings relating to LEA excess costs). (See 34 CFR 76.702 (Fiscal control and eligibility. (b) The SEA must have on file with fund accounting procedures).) (Authority: 20 U.S.C. 1412(a)(18)(B)) The State must have on file with the the Secretary information to Secretary procedures to ensure that the demonstrate that it meets the § 300.153 State-level nonsupplanting. SEA does not make any final requirements of paragraph (a)(1) of this (a) General. (1) Except as provided in determination that an LEA is not section. § 300.230, funds paid to a State under eligible for assistance under Part B of (Authority: 20 U.S.C. 1412(b)) Part B of the Act must be used to the Act without first giving the LEA supplement the level of Federal, State, § 300.148 Public participation. reasonable notice and an opportunity and local funds (including funds that for a hearing under 34 CFR 76.401(d). (a) General; exception. (1) Subject to are not under the direct control of the (Authority: 20 U.S.C. 1412(a)(13)) paragraph (a)(2) of this section, each SEA or LEAs) expended for special State must ensure that, prior to the education and related services provided § 300.145 Recovery of funds for adoption of any policies and procedures to children with disabilities under Part misclassified children. needed to comply with this part, there B of the Act and in no case to supplant The State must have on file with the are public hearings, adequate notice of these Federal, State, and local funds. Secretary policies and procedures that the hearings, and an opportunity for (2) The State must have on file with ensure that the State seeks to recover comment available to the general public, the Secretary information to any funds provided under Part B of the including individuals with disabilities demonstrate to the satisfaction of the Act for services to a child who is and parents of children with disabilities Secretary that the requirements of determined to be erroneously classified consistent with §§ 300.280–300.284. paragraph (a)(1) of this section are met. (b) Waiver. If the State provides clear as eligible to be counted under section (2) A State will be considered to have and convincing evidence that all 611(a) or (d) of the Act. met paragraph (a)(1) of this section with regard to a policy or procedure needed children with disabilities have available (Authority: 20 U.S.C. 1221e–3(a)(1)) to comply with this part if it can to them FAPE, the Secretary may waive, in whole or in part, the requirements of § 300.146 Suspension and expulsion rates. demonstrate that prior to the adoption of that policy or procedure, the policy paragraph (a) of this section if the The State must have on file with the or procedure was subjected to a public Secretary concurs with the evidence Secretary information to demonstrate review and comment process that is provided by the State under § 300.589. that the following requirements are met: required by the State for other purposes (Authority: 20 U.S.C. 1412(a)(18)(c)) and is comparable to and consistent (a) General. The SEA examines data to § 300.154 Maintenance of State financial determine if significant discrepancies with the requirements of §§ 300.280– support. are occurring in the rate of long-term 300.284. (a) General. The State must have on suspensions and expulsions of children (b) Documentation. The State must file with the Secretary information to with disabilities— have on file with the Secretary demonstrate, on either a total or per- (1) Among LEAs in the State; or information to demonstrate that the capita basis, that the State will not requirements of paragraph (a) of this (2) Compared to the rates for reduce the amount of State financial section are met. nondisabled children within the support for special education and agencies. (Authority: 20 U.S.C. 1412(a)(20)) related services for children with disabilities, or otherwise made available (b) Review and revision of policies. If § 300.149 [Reserved] because of the excess costs of educating the discrepancies described in those children, below the amount of that paragraph (a) of this section are § 300.150 State advisory panel. support for the preceding fiscal year. occurring, the SEA reviews and, if The State must have on file with the (b) Reduction of funds for failure to appropriate, revises (or requires the Secretary information to demonstrate maintain support. The Secretary affected State agency or LEA to revise) that the State has established and reduces the allocation of funds under its policies, procedures, and practices maintains an advisory panel for the section 611 of the Act for any fiscal year relating to the development and purpose of providing policy guidance following the fiscal year in which the implementation of IEPs, the use of with respect to special education and State fails to comply with the behavioral interventions, and related services for children with requirement of paragraph (a) of this procedural safeguards, to ensure that disabilities in the State in accordance section by the same amount by which these policies, procedures, and practices with the requirements of §§ 300.650– the State fails to meet the requirement. comply with the Act. 300.653. (c) Waivers for exceptional or (Authority: 20 U.S.C. 612(a)(22)) (Authority: 20 U.S.C. 1412(a)(21)(A)) uncontrollable circumstances. The

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12432 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

Secretary may waive the requirement of LEA and State Agency Eeligibility— (b) Definition. As used in this part, the paragraph (a) of this section for a State, General term excess costs means those costs that for one fiscal year at a time, if the are in excess of the average annual per- § 300.180 Condition of assistance. Secretary determines that— student expenditure in an LEA during An LEA or State agency is eligible for the preceding school year for an (1) Granting a waiver would be assistance under Part B of the Act for a equitable due to exceptional or elementary or secondary school student, fiscal year if the agency demonstrates to as may be appropriate. Excess costs uncontrollable circumstances such as a the satisfaction of the SEA that it meets natural disaster or a precipitous and must be computed after deducting— the conditions in §§ 300.220–300.250. (1) Amounts received— unforeseen decline in the financial (Authority: 20 U.S.C. 1413(a)) (i) Under Part B of the Act; resources of the State; or (ii) Under Part A of title I of the (2) The State meets the standard in § 300.181 Exception for prior LEA or State Elementary and Secondary Education § 300.589 for a waiver of the agency policies and procedures on file with the SEA. Act of 1965; or requirement to supplement, and not to (iii) Under Part A of title VII of that supplant, funds received under Part B of If an LEA or a State agency described Act; and in § 300.194 has on file with the SEA the Act. (2) Any State or local funds expended policies and procedures that (d) Subsequent years. If, for any fiscal for programs that would qualify for demonstrate that the LEA or State assistance under any of those parts. year, a State fails to meet the agency meets any requirement of (c) LLimitation on use of Part B funds. requirement of paragraph (a) of this § 300.180, including any policies and (1) The excess cost requirement section, including any year for which procedures filed under Part B of the Act prevents an LEA from using funds the State is granted a waiver under as in effect before June 4, 1997, the SEA provided under Part B of the Act to pay paragraph (c) of this section, the shall consider the LEA or State agency for all of the costs directly attributable financial support required of the State to have met the requirement for to the education of a child with a in future years under paragraph (a) of purposes of receiving assistance under disability, subject to paragraph (c)(2) of this section must be the amount that Part B of the Act. this section. would have been required in the (Authority: 20 U.S.C. 1413(b)(1)) (2) The excess cost requirement does absence of that failure and not the not prevent an LEA from using Part B reduced level of the State’s support. § 300.182 Amendments to LEA policies and procedures. funds to pay for all of the costs directly attributable to the education of a child (Authority: 20 U.S.C. 1412(a)(19)) (a) Modification made by an LEA or with a disability in any of the ages 3, 4, a State agency. (1) Subject to paragraph § 300.155 Policies and procedures for use 5, 18, 19, 20, or 21, if no local or State (b) of this section, policies and of Part B funds. funds are available for nondisabled procedures submitted by an LEA or a children in that age range. However, the The State must have on file with the State agency in accordance with this LEA must comply with the Secretary policies and procedures subpart remain in effect until it submits designed to ensure that funds paid to to the SEA the modifications that the nonsupplanting and other requirements the State under Part B of the Act are LEA or State agency decides are of this part in providing the education spent in accordance with the provisions necessary. and services for these children. of Part B. (2) The provisions of this subpart (Authority: 20 U.S.C. 1401(7), 1413(a)(2)(A)) (Authority: 20 U.S.C. 1412(a)(18)(A)) apply to a modification to an LEA’s or State agency’s policies and procedures § 300.185 Meeting the excess cost requirement. § 300.156 Annual description of use of in the same manner and to the same Part B funds. extent that they apply to the LEA’s or (a)(1) General. An LEA meets the State agency’s original policies and excess cost requirement if it has spent (a) In order to receive a grant in any at least a minimum average amount for fiscal year a State must annually procedures. (b) Modifications required by the SEA. the education of its children with describe— The SEA may require an LEA or a State disabilities before funds under Part B of (1) How amounts retained for State- agency to modify its policies and the Act are used. level activities under § 300.602 will be procedures, but only to the extent (2) The amount described in used to meet the requirements of this necessary to ensure the LEA’s or State paragraph (a)(1) of this section is part; agency’s compliance with this part, if— determined using the formula in § 300.184(b). This amount may not (2) How those amounts will be (1) After June 4, 1997, the provisions include capital outlay or debt service. allocated among the activities described of the Act or the regulations in this part (b) Joint establishment of eligibility. If in §§ 300.621 and 300.370 to meet State are amended; two or more LEAs jointly establish priorities based on input from LEAs; (2) There is a new interpretation of eligibility in accordance with § 300.190, and the Act by Federal or State courts; or (3) There is an official finding of the minimum average amount is the (3) The percentage of those amounts, noncompliance with Federal or State average of the combined minimum if any, that will be distributed to LEAs law or regulations. average amounts determined under by formula. (Authority: 20 U.S.C. 1413(b)) § 300.184 in those agencies for (b) If a State’s plans for use of its elementary or secondary school funds under §§ 300.370 and 300.620 for § 300.183 [Reserved] students, as the case may be. the forthcoming year do not change § 300.184 Excess cost requirement. (Authority: 20 U.S.C. 1413(a)(2)(A)) from the prior year, the State may (a) General. Amounts provided to an §§ 300.186±300.189 [Reserved] submit a letter to that effect to meet the LEA under Part B of the Act may be requirement in paragraph (a) of this used only to pay the excess costs of § 300.190 Joint establishment of eligibility. section. providing special education and related (a) General. An SEA may require an (Authority: 20 U.S.C. 1411(f)(5)) services to children with disabilities. LEA to establish its eligibility jointly

VerDate 03-MAR-99 17:45 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm01 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12433 with another LEA if the SEA determines projects funded under Part B of the Act (Authority: 20 U.S.C. 1413(a)(1)) that the LEA would be ineligible under receive FAPE, and that those children § 300.221 Implementation of CSPD. this section because the agency would and their parents are provided all the not be able to establish and maintain rights and procedural safeguards The LEA must have on file with the programs of sufficient size and scope to described in this part; and SEA information to demonstrate that— (a) All personnel necessary to carry effectively meet the needs of children (b) The agency meets the other out Part B of the Act within the with disabilities. conditions of this subpart that apply to jurisdiction of the agency are (b) Charter school exception. An SEA LEAs. may not require a charter school that is appropriately and adequately prepared, (Authority: 20 U.S.C. 1413(i)) an LEA to jointly establish its eligibility consistent with the requirements of under paragraph (a) of this section § 300.195 [Reserved] §§ 300.380–300.382; and unless it is explicitly permitted to do so (b) To the extent the LEA determines appropriate, it shall contribute to and under the State’s charter school statute. § 300.196 Notification of LEA or State (c) Amount of payments. If an SEA agency in case of ineligibility. use the comprehensive system of requires the joint establishment of If the SEA determines that an LEA or personnel development of the State eligibility under paragraph (a) of this State agency is not eligible under Part B established under § 300.135. section, the total amount of funds made of the Act, the SEA shall— (Authority: 20 U.S.C. 1413(a)(3)) (a) Notify the LEA or State agency of available to the affected LEAs must be §§ 300.222±300.229 [Reserved] equal to the sum of the payments that that determination; and each LEA would have received under (b) Provide the LEA or State agency § 300.230 Use of amounts. §§ 300.711–300.714 if the agencies were with reasonable notice and an The LEA must have on file with the eligible for these payments. opportunity for a hearing. SEA information to demonstrate that (Authority: 20 U.S.C. 1413(e)(1), and (2)) (Authority: 20 U.S.C. 1413(c)) amounts provided to the LEA under Part B of the Act— § 300.191 [Reserved] § 300.197 LEA and State agency (a) Will be expended in accordance compliance. with the applicable provisions of this § 300.192 Requirements for establishing (a) General. If the SEA, after eligibility. part; reasonable notice and an opportunity (b) Will be used only to pay the excess (a) Requirements for LEAs in general. for a hearing, finds that an LEA or State costs of providing special education and LEAs that establish joint eligibility agency that has been determined to be related services to children with under this section must— eligible under this section is failing to (1) Adopt policies and procedures disabilities, consistent with §§ 300.184– comply with any requirement described that are consistent with the State’s 300.185; and in §§ 300.220–300.250, the SEA shall (c) Will be used to supplement State, policies and procedures under reduce or may not provide any further local, and other Federal funds and not §§ 300.121–300.156; and (2) Be jointly responsible for payments to the LEA or State agency to supplant those funds. implementing programs that receive until the SEA is satisfied that the LEA (Authority: 20 U.S.C. 1413(a)(2)(A)) or State agency is complying with that assistance under Part B of the Act. § 300.231 Maintenance of effort. (b) Requirements for educational requirement. service agencies in general. If an (b) Notice requirement. Any State (a) General. Except as provided in educational service agency is required agency or LEA in receipt of a notice §§ 300.232 and 300.233, funds provided by State law to carry out programs described in paragraph (a) of this to an LEA under Part B of the Act may under Part B of the Act, the joint section shall, by means of public notice, not be used to reduce the level of responsibilities given to LEAs under take the measures necessary to bring the expenditures for the education of Part B of the Act— pendency of an action pursuant to this children with disabilities made by the (1) Do not apply to the administration section to the attention of the public LEA from local funds below the level of and disbursement of any payments within the jurisdiction of the agency. those expenditures for the preceding received by that educational service (c) In carrying out its functions under fiscal year. agency; and this section, each SEA shall consider (b) Information. The LEA must have (2) Must be carried out only by that any decision resulting from a hearing on file with the SEA information to educational service agency. under §§ 300.507–300.528 that is demonstrate that the requirements of (c) Additional requirement. adverse to the LEA or State agency paragraph (a) of this section are met. Notwithstanding any other provision of involved in the decision. (c) Standard. (1) Except as provided in paragraph (c)(2) of this section, the §§ 300.190–300.192, an educational (Authority: 20 U.S.C. 1413(d)) service agency shall provide for the SEA determines that an LEA complies education of children with disabilities LEA and State Agency Eligibility— with paragraph (a) of this section for in the least restrictive environment, as Specific Conditions purposes of establishing the LEA’s eligibility for an award for a fiscal year required by § 300.130. § 300.220 Consistency with State policies. if the LEA budgets, for the education of (Authority: 20 U.S.C. 1413(e)(3), and (4)) (a) General. The LEA, in providing for children with disabilities, at least the § 300.193 [Reserved] the education of children with same total or per-capita amount from disabilities within its jurisdiction, must either of the following sources as the § 300.194 State agency eligibility. have in effect policies, procedures, and LEA spent for that purpose from the Any State agency that desires to programs that are consistent with the same source for the most recent prior receive a subgrant for any fiscal year State policies and procedures year for which information is available: under §§ 300.711–300.714 must established under §§ 300.121–300.156. (i) Local funds only. demonstrate to the satisfaction of the (b) Policies on file with SEA. The LEA (ii) The combination of State and local SEA that— must have on file with the SEA the funds. (a) All children with disabilities who policies and procedures described in (2) An LEA that relies on paragraph are participating in programs and paragraph (a) of this section. (c)(1)(i) of this section for any fiscal year

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12434 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations must ensure that the amount of local (d) The termination of costly B funds in accordance with paragraph funds it budgets for the education of expenditures for long-term purchases, (a) of this section, including ensuring children with disabilities in that year is such as the acquisition of equipment or that children with disabilities in at least the same, either in total or per the construction of school facilities. schoolwide program schools— capita, as the amount it spent for that (Authority: 20 U.S.C. 1413(a)(2)(B)) (1) Receive services in accordance purpose in— with a properly developed IEP; and (i) The most recent fiscal year for § 300.233 Treatment of Federal funds in (2) Are afforded all of the rights and which information is available, if that certain fiscal years. services guaranteed to children with year is, or is before, the first fiscal year (a)(1) Subject to paragraphs (a)(2) and disabilities under the IDEA. beginning on or after July 1, 1997; or (b) of this section, for any fiscal year for (Authority: 20 U.S.C. 1413(a)(2)(D)) (ii) If later, the most recent fiscal year which amounts appropriated to carry for which information is available and out section 611 of the Act exceeds § 300.235 Permissive use of funds. the standard in paragraph (c)(1)(i) of this $4,100,000,000, an LEA may treat as (a) General. Subject to paragraph (b) section was used to establish its local funds up to 20 percent of the of this section, funds provided to an compliance with this section. amount of funds it receives under Part LEA under Part B of the Act may be (3) The SEA may not consider any B of the Act that exceeds the amount it used for the following activities: expenditures made from funds provided received under Part B of the Act for the (1) Services and aids that also benefit by the Federal Government for which previous fiscal year. nondisabled children. For the costs of the SEA is required to account to the (2) The requirements of §§ 300.230(c) special education and related services Federal Government or for which the and 300.231 do not apply with respect and supplementary aids and services LEA is required to account to the to the amount that may be treated as provided in a regular class or other Federal Government directly or through local funds under paragraph (a)(1) of education-related setting to a child with the SEA in determining an LEA’s this section. a disability in accordance with the IEP (b) If an SEA determines that an LEA compliance with the requirement in of the child, even if one or more is not meeting the requirements of this paragraph (a) of this section. nondisabled children benefit from these part, the SEA may prohibit the LEA (Authority: 20 U.S.C. 1413(a)(2)(A)) services. from treating funds received under Part (2) Integrated and coordinated § 300.232 Exception to maintenance of B of the Act as local funds under services system. To develop and effort. paragraph (a)(1) of this section for any implement a fully integrated and An LEA may reduce the level of fiscal year, but only if it is authorized coordinated services system in expenditures by the LEA under Part B to do so by the State constitution or a accordance with § 300.244. of the Act below the level of those State statute. (b) Non-applicability of certain expenditures for the preceding fiscal (Authority: 20 U.S.C. 1413(a)(2)(C)) year if the reduction is attributable to provisions. An LEA does not violate the following: § 300.234 Schoolwide programs under title §§ 300.152, 300.230, and 300.231 based (a)(1) The voluntary departure, by I of the ESEA. on its use of funds provided under Part retirement or otherwise, or departure for (a) General; limitation on amount of B of the Act in accordance with just cause, of special education or Part B funds used. An LEA may use paragraphs (a)(1) and (a)(2) of this related services personnel, who are funds received under Part B of the Act section. replaced by qualified, lower-salaried for any fiscal year to carry out a (Authority: 20 U.S.C. 1413(a)(4)) staff. schoolwide program under section 1114 §§ 300.236±300.239 [Reserved] (2) In order for an LEA to invoke the of the Elementary and Secondary exception in paragraph (a)(1) of this Education Act of 1965, except that the § 300.240 Information for SEA. section, the LEA must ensure that those amount used in any schoolwide (a) The LEA shall provide the SEA voluntary retirements or resignations program may not exceed— with information necessary to enable (1)(i) The amount received by the LEA and replacements are in full conformity the SEA to carry out its duties under under Part B for that fiscal year; divided with: Part B of the Act, including, with (i) Existing school board policies in by respect to §§ 300.137 and 300.138, the agency; (ii) The number of children with information relating to the performance (ii) The applicable collective disabilities in the jurisdiction of the of children with disabilities bargaining agreement in effect at that LEA; and multiplied by time; and (2) The number of children with participating in programs carried out (iii) Applicable State statutes. disabilities participating in the under Part B of the Act. (b) A decrease in the enrollment of schoolwide program. (b) The LEA must have on file with children with disabilities. (b) Funding conditions. The funds the SEA an assurance satisfactory to the (c) The termination of the obligation described in paragraph (a) of this SEA that the LEA will comply with the of the agency, consistent with this part, section are subject to the following requirements of paragraph (a) of this to provide a program of special conditions: section. education to a particular child with a (1) The funds must be considered as (Authority: 20 U.S.C. 1413(a)(6)) disability that is an exceptionally costly Federal Part B funds for purposes of the program, as determined by the SEA, calculations required by §§ 300.230(b) § 300.241 Treatment of charter schools because the child— and (c). and their students. (1) Has left the jurisdiction of the (2) The funds may be used without The LEA must have on file with the agency; regard to the requirements of SEA information to demonstrate that in (2) Has reached the age at which the § 300.230(a). carrying out this part with respect to obligation of the agency to provide (c) Meeting other Part B requirements. charter schools that are public schools FAPE to the child has terminated; or Except as provided in paragraph (b) of of the LEA, the LEA will— (3) No longer needs the program of this section, all other requirements of (a) Serve children with disabilities special education. Part B must be met by an LEA using Part attending those schools in the same

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12435 manner as it serves children with the agency shall use the amounts under (Authority: 20 U.S.C. 1413(g)(3)) disabilities in its other schools; and § 300.244 in accordance with the § 300.247 Responsibilities of the LEA. (b) Provide funds under Part B of the requirements of that title. An LEA that is granted authority Act to those schools in the same manner (Authority: 20 U.S.C. 1413(f)) as it provides those funds to its other under § 300.245(b) to permit a public schools. School-Based Improvement Plan school to design, implement, and evaluate a school-based improvement (Authority: 20 U.S.C. 1413(a)(5)) § 300.245 School-based improvement plan shall— plan. § 300.242 Public information. (a) Select each school under the (a) General. Each LEA may, in jurisdiction of the agency that is eligible The LEA must have on file with the accordance with paragraph (b) of this to design, implement, and evaluate the SEA information to demonstrate to the section, use funds made available under plan; satisfaction of the SEA that it will make Part B of the Act to permit a public (b) Require each school selected available to parents of children with school within the jurisdiction of the under paragraph (a) of this section, in disabilities and to the general public all LEA to design, implement, and evaluate accordance with criteria established by documents relating to the eligibility of a school-based improvement plan that— the LEA under paragraph (c) of this the agency under Part B of the Act. (1) Is consistent with the purposes section, to establish a school-based (Authority: 20 U.S.C. 1413(a)(7)) described in section 651(b) of the Act; standing panel to carry out the duties described in § 300.246(b); § 300.243 [Reserved] and (2) Is designed to improve educational (c) Establish— § 300.244 Coordinated services system. and transitional results for all children (1) Criteria that must be used by the LEA in the selection of an eligible (a) General. An LEA may not use more with disabilities and, as appropriate, for school under paragraph (a) of this than 5 percent of the amount the agency other children consistent with § 300.235(a) and (b) in that public section; receives under Part B of the Act for any (2) Criteria that must be used by a fiscal year, in combination with other school. (b) Authority. (1) General. An SEA public school selected under paragraph amounts (which must include amounts (a) of this section in the establishment other than education funds), to develop may grant authority to an LEA to permit a public school described in § 300.245 of a school-based standing panel to and implement a coordinated services carry out the duties described in system designed to improve results for (through a school-based standing panel established under § 300.247(b)) to § 300.246(b) and that ensure that the children and families, including membership of the panel reflects the children with disabilities and their design, implement, and evaluate a school-based improvement plan diversity of the community in which the families. public school is located and includes, at (b) Activities. In implementing a described in § 300.245 for a period not to exceed 3 years. a minimum— coordinated services system under this (i) Parents of children with section, an LEA may carry out activities (2) Responsibility of LEA. If an SEA grants the authority described in disabilities who attend a public school, that include— including parents of children with paragraph (b)(1) of this section, an LEA (1) Improving the effectiveness and disabilities from unserved and that is granted this authority must have efficiency of service delivery, including underserved populations, as the sole responsibility of oversight of all developing strategies that promote appropriate; accountability for results; activities relating to the design, (ii) Special education and general (2) Service coordination and case implementation, and evaluation of any education teachers of public schools; management that facilitate the linkage of school-based improvement plan that a (iii) Special education and general IEPs under Part B of the Act and IFSPs public school is permitted to design education administrators, or the under Part C of the Act with under this section. designee of those administrators, of individualized service plans under (Authority: 20 U.S.C. 1413(g)(1) and (g)(2)). those public schools; and multiple Federal and State programs, (iv) Related services providers who such as title I of the Rehabilitation Act § 300.246 Plan requirements. are responsible for providing services to of 1973 (vocational rehabilitation), title A school-based improvement plan the children with disabilities who XIX of the Social Security Act described in § 300.245 must— attend those public schools; and (Medicaid), and title XVI of the Social (a) Be designed to be consistent with (3) Criteria that must be used by the Security Act (supplemental security the purposes described in section 651(b) LEA with respect to the distribution of income); of the Act and to improve educational funds under Part B of the Act to carry (3) Developing and implementing and transitional results for all children out this section; interagency financing strategies for the with disabilities and, as appropriate, for (d) Disseminate the criteria provision of education, health, mental other children consistent with established under paragraph (c) of this health, and social services, including § 300.235(a) and (b), who attend the section to local school district personnel transition services and related services school for which the plan is designed and local parent organizations within under the Act; and and implemented; the jurisdiction of the LEA; (4) Interagency personnel (b) Be designed, evaluated, and, as (e) Require a public school that development for individuals working on appropriate, implemented by a school- desires to design, implement, and coordinated services. based standing panel established in evaluate a school-based improvement (c) Coordination with certain projects accordance with § 300.247(b); plan to submit an application at the under Elementary and Secondary (c) Include goals and measurable time, in the manner and accompanied Education Act of 1965. If an LEA is indicators to assess the progress of the by the information, that the LEA shall carrying out a coordinated services public school in meeting these goals; reasonably require; and project under title XI of the Elementary and (f) Establish procedures for approval and Secondary Education Act of 1965 (d) Ensure that all children with by the LEA of a school-based and a coordinated services project under disabilities receive the services improvement plan designed under Part Part B of the Act in the same schools, described in their IEPs. B of the Act.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12436 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

(Authority:1413(g)(4)) (c) Meets the requirements of section shall provide for public participation 613(a)(1), (2)(A)(i), (6), and (7) of the consistent with §§ 300.280–300.284. § 300.248 Limitation. Act; (Authority: 20 U.S.C. 1411(i)) A school-based improvement plan (d) Meets the requirements of this part described in § 300.245(a) may be that implement the sections of the Act § 300.262 Use of Part B funds. submitted to an LEA for approval only listed in paragraphs (a)–(c) of this (a) The Department of the Interior if a consensus with respect to any section; may use five percent of its payment matter relating to the design, (e) Includes a description of how the under § 300.715(b) and (c) in any fiscal implementation, or evaluation of the Secretary of the Interior will coordinate year, or $500,000, whichever is greater, goals of the plan is reached by the the provision of services under Part B of for administrative costs in carrying out school-based standing panel that the Act with LEAs, tribes and tribal the provisions of this part. designed the plan. organizations, and other private and (b) Payments to the Secretary of the (Authority: 20 U.S.C. 1413(g)(5)) Federal service providers; Interior under § 300.716 must be used in (f) Includes an assurance that there accordance with that section. § 300.249 Additional requirements. are public hearings, adequate notice of (Authority: 20 U.S.C. 1411(i)) (a) Parental involvement. In carrying the hearings, and an opportunity for out the requirements of §§ 300.245– comment afforded to members of tribes, § 300.263 Plan for coordination of 300.250, an LEA shall ensure that the tribal governing bodies, and affected services. local school boards before the adoption parents of children with disabilities are (a) The Secretary of the Interior shall of the policies, programs, and involved in the design, evaluation, and, develop and implement a plan for the procedures described in paragraph (a) of if appropriate, implementation of coordination of services for all Indian school-based improvement plans in this section; (g) Includes an assurance that the children with disabilities residing on accordance with this section. Secretary of the Interior will provide the reservations covered under Part B of the (b) Plan approval. An LEA may information that the Secretary may Act. approve a school-based improvement require to comply with section 618 of (b) The plan must provide for the plan of a public school within the the Act, including data on the number coordination of services benefiting these jurisdiction of the agency for a period of of children with disabilities served and children from whatever source, 3 years, if— the types and amounts of services including tribes, the Indian Health (1) The approval is consistent with provided and needed; Service, other BIA divisions, and other the policies, procedures, and practices (h)(1) Includes an assurance that the Federal agencies. established by the LEA and in Secretary of the Interior and the (c) In developing the plan, the accordance with §§ 300.245–300.250; Secretary of Health and Human Services Secretary of the Interior shall consult and have entered into a memorandum of with all interested and involved parties. (2) A majority of parents of children agreement, to be provided to the (d) The plan must be based on the who are members of the school-based Secretary, for the coordination of needs of the children and the system standing panel, and a majority of other services, resources, and personnel best suited for meeting those needs, and members of the school-based standing between their respective Federal, State, may involve the establishment of panel that designed the plan, agree in and local offices and with the SEAs and cooperative agreements between the writing to the plan. LEAs and other entities to facilitate the BIA, other Federal agencies, and other (Authority: 20 U.S.C. 1413(g)(6)) provision of services to Indian children entities. with disabilities residing on or near (e) The plan also must be distributed § 300.250 Extension of plan. reservations. upon request to States, SEAs and LEAs, If a public school within the (2) The agreement must provide for and other agencies providing services to jurisdiction of an LEA meets the the apportionment of responsibilities infants, toddlers, and children with applicable requirements and criteria and costs, including child find, disabilities, to tribes, and to other described in §§ 300.246 and 300.247 at evaluation, diagnosis, remediation or interested parties. the expiration of the 3-year approval therapeutic measures, and (if (Authority: 20 U.S.C. 1411(i)(4)) period described § 300.249(b), the appropriate) equipment and medical or agency may approve a school-based personal supplies, as needed for a child § 300.264 Definitions. improvement plan of the school for an with a disability to remain in a school (a) Indian. As used in this part, the additional 3-year period. or program; and term Indian means an individual who is (i) Includes an assurance that the a member of an Indian tribe. (Authority: 20 U.S.C. 1413(g)(7)) Department of the Interior will (b) Indian tribe. As used in this part, Secretary of the Interior—Eligibility cooperate with the Department in its the term Indian tribe means any Federal exercise of monitoring and oversight of or State Indian tribe, band, rancheria, § 300.260 Submission of information. the requirements in this section and pueblo, colony, or community, The Secretary may provide the §§ 300.261–300.267, and any including any Alaska Native village or Secretary of the Interior amounts under agreements entered into between the regional village corporation (as defined § 300.715(b) and (c) for a fiscal year only Secretary of the Interior and other in or established under the Alaska if the Secretary of the Interior submits entities under Part B of the Act, and will Native Claims Settlement Act). to the Secretary information that— fulfill its duties under Part B of the Act. (Authority: 20 U.S.C. 1401(9) and (10)) (a) Meets the requirements of section Section 616(a) of the Act applies to the 612(a)(1), (3)—(9), (10)(B), (C), (11)— information described in this section. § 300.265 Establishment of advisory board. (12), (14)—(17), (20), (21) and (22) of the (Authority: 20 U.S.C. 1411(i)(2)) Act (including monitoring and (a) To meet the requirements of evaluation activities); § 300.261 Public participation. section 612(a)(21) of the Act, the (b) Meets the requirements of section In fulfilling the requirements of Secretary of the Interior shall establish, 612(b) and (e) of the Act; § 300.260 the Secretary of the Interior not later than December 4, 1997 under

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12437 the BIA, an advisory board composed of 300.586, 300.600–300.621, and 300.660– (b) Make any necessary modifications individuals involved in or concerned 300.662. in those policies and procedures. with the education and provision of (Authority: 20 U.S.C. 1411(i)(2)(A)) (Authority: 20 U.S.C. 1412(a)(20)) services to Indian infants, toddlers, and children with disabilities, including Public Participation § 300.284 Publication and availability of approved policies and procedures. Indians with disabilities, Indian parents § 300.280 Public hearings before adopting of the children, teachers, service State policies and procedures. After the Secretary approves a State’s providers, State and local educational policies and procedures, the SEA shall Prior to its adoption of State policies officials, representatives of tribes or give notice in newspapers or other and procedures related to this part, the tribal organizations, representatives media, or both, that the policies and SEA shall— procedures are approved. The notice from State Interagency Coordinating (a) Make the policies and procedures must name places throughout the State Councils under section 641 of the Act in available to the general public; where the policies and procedures are States having reservations, and other (b) Hold public hearings; and members representing the various (c) Provide an opportunity for available for access by any interested divisions and entities of the BIA. The comment by the general public on the person. chairperson must be selected by the policies and procedures. (Authority: 20 U.S.C. 1412(a)(20)) Secretary of the Interior. (b) The advisory board shall— (Authority: 20 U.S.C. 1412(a)(20)) Subpart CÐServices (1) Assist in the coordination of § 300.281 Notice. Free Appropriate Public Education services within the BIA and with other (a) The SEA shall provide adequate local, State, and Federal agencies in the notice to the general public of the public § 300.300 Provision of FAPE. provision of education for infants, hearings. (a) General. (1) Subject to paragraphs toddlers, and children with disabilities; (b) The notice must be in sufficient (b) and (c) of this section and § 300.311, (2) Advise and assist the Secretary of detail to inform the general public each State receiving assistance under the Interior in the performance of the about— this part shall ensure that FAPE is Secretary’s responsibilities described in (1) The purpose and scope of the State available to all children with section 611(i) of the Act; policies and procedures and their disabilities, aged 3 through 21, residing (3) Develop and recommend policies relation to Part B of the Act; in the State, including children with concerning effective inter- and intra- (2) The availability of the State disabilities who have been suspended or agency collaboration, including policies and procedures; expelled from school. modifications to regulations, and the (3) The date, time, and location of (2) As a part of its obligation under elimination of barriers to inter- and each public hearing; paragraph (a)(1) of this section, each intra-agency programs and activities; (4) The procedures for submitting State must ensure that the requirements (4) Provide assistance and written comments about the policies of § 300.125 (to identify, locate, and disseminate information on best and procedures; and evaluate all children with disabilities) practices, effective program (5) The timetable for submitting the are implemented by public agencies coordination strategies, and policies and procedures to the Secretary throughout the State. recommendations for improved for approval. (3)(i) The services provided to the educational programming for Indian (c) The notice must be published or child under this part address all of the infants, toddlers, and children with announced— child’s identified special education and disabilities; and (1) In newspapers or other media, or related services needs described in (5) Provide assistance in the both, with circulation adequate to notify paragraph (a) of this section. preparation of information required the general public about the hearings; (ii) The services and placement under § 300.260(g). and needed by each child with a disability (Authority: 20 U.S.C. 1411(i)(5)) (2) Enough in advance of the date of to receive FAPE must be based on the the hearings to afford interested parties child’s unique needs and not on the § 300.266 Annual report by advisory throughout the State a reasonable child’s disability. board. opportunity to participate. (b) Exception for age ranges 3–5 and (a) General. The advisory board (Authority: 20 U.S.C. 1412(a)(20)) 18–21. This paragraph provides the established under § 300.265 shall rules for applying the requirements in prepare and submit to the Secretary of § 300.282 Opportunity to participate; paragraph (a) of this section to children the Interior and to the Congress an comment period. with disabilities aged 3, 4, 5, 18, 19, 20, annual report containing a description (a) The SEA shall conduct the public and 21 within the State: of the activities of the advisory board for hearings at times and places that afford (1) If State law or a court order the preceding year. interested parties throughout the State a requires the State to provide education (b) Report to the Secretary. The reasonable opportunity to participate. for children with disabilities in any Secretary of the Interior shall make (b) The policies and procedures must disability category in any of these age available to the Secretary the report be available for comment for a period of groups, the State must make FAPE described in paragraph (a) of this at least 30 days following the date of the available to all children with disabilities section. notice under § 300.281. of the same age who have that disability. (Authority: 20 U.S.C. 1411(i)(6)(A)) (Authority: 20 U.S.C. 1412(a)(20)) (2) If a public agency provides education to nondisabled children in § 300.267 Applicable regulations. § 300.283 Review of public comments any of these age groups, it must make The Secretary of the Interior shall before adopting policies and procedures. FAPE available to at least a comply with the requirements of Before adopting the policies and proportionate number of children with §§ 300.301–300.303, 300.305–300.309, procedures, the SEA shall— disabilities of the same age. 300.340–300.348, 300.351, 300.360– (a) Review and consider all public (3) If a public agency provides 300.382, 300.400–300.402, 300.500– comments; and education to 50 percent or more of its

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12438 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations children with disabilities in any provide special education and related the opportunity to participate in the disability category in any of these age services to a child with a disability, the regular physical education program groups, it must make FAPE available to program, including non-medical care available to nondisabled children all its children with disabilities of the and room and board, must be at no cost unless— same age who have that disability. This to the parents of the child. (1) The child is enrolled full time in provision does not apply to children (Authority: 20 U.S.C. 1412(a)(1), a separate facility; or aged 3 through 5 for any fiscal year for 1412(a)(10)(B)) (2) The child needs specially designed which the State receives a grant under physical education, as prescribed in the section 619(a)(1) of the Act. § 300.303 Proper functioning of hearing child’s IEP. (4) If a public agency provides aids. (c) Special physical education. If education to a child with a disability in Each public agency shall ensure that specially designed physical education is any of these age groups, it must make the hearing aids worn in school by prescribed in a child’s IEP, the public FAPE available to that child and children with hearing impairments, agency responsible for the education of provide that child and his or her parents including deafness, are functioning that child shall provide the services all of the rights under Part B of the Act properly. directly or make arrangements for those and this part. (Authority: 20 U.S.C. 1412(a)(1)) services to be provided through other (5) A State is not required to make public or private programs. FAPE available to a child with a § 300.304 Full educational opportunity (d) Education in separate facilities. disability in one of these age groups if— goal. The public agency responsible for the (i) State law expressly prohibits, or Each SEA shall ensure that each education of a child with a disability does not authorize, the expenditure of public agency establishes and who is enrolled in a separate facility public funds to provide education to implements a goal of providing full shall ensure that the child receives nondisabled children in that age group; educational opportunity to all children appropriate physical education services or with disabilities in the area served by in compliance with paragraphs (a) and (ii) The requirement is inconsistent the public agency. (c) of this section. with a court order that governs the (Authority: 20 U.S.C. 1412(a)(2) (Authority: 20 U.S.C. 1412(a)(25), provision of free public education to 1412(a)(5)(A)) children with disabilities in that State. § 300.305 Program options. § 300.308 Assistive technology. (c) Children aged 3 through 21 on Each public agency shall take steps to Indian reservations. With the exception ensure that its children with disabilities (a) Each public agency shall ensure of children identified in § 300.715(b) have available to them the variety of that assistive technology devices or and (c), the SEA shall ensure that all of educational programs and services assistive technology services, or both, as the requirements of Part B of the Act are available to nondisabled children in the those terms are defined in §§ 300.5– implemented for all children with area served by the agency, including art, 300.6, are made available to a child with disabilities aged 3 through 21 on music, industrial arts, consumer and a disability if required as a part of the reservations. homemaking education, and vocational child’s— (Authority: 20 U.S.C. 1412(a)(1), education. (1) Special education under § 300.26; 1411(i)(1)(C), S. Rep. No. 94—168, p. 19 (2) Related services under § 300.24; or (1975)) (Authority: 20 U.S.C. 1412(a)(2), 1413(a)(1)) (3) Supplementary aids and services § 300.306 Nonacademic services. under §§ 300.28 and 300.550(b)(2). § 300.301 FAPEÐmethods and payments. (b) On a case-by-case basis, the use of (a) Each State may use whatever State, (a) Each public agency shall take steps school-purchased assistive technology local, Federal, and private sources of to provide nonacademic and devices in a child’s home or in other support are available in the State to extracurricular services and activities in settings is required if the child’s IEP meet the requirements of this part. For the manner necessary to afford children team determines that the child needs example, if it is necessary to place a with disabilities an equal opportunity access to those devices in order to child with a disability in a residential for participation in those services and receive FAPE. activities. facility, a State could use joint (Authority: 20 U.S.C. 1412(a)(12)(B)(i)) agreements between the agencies (b) Nonacademic and extracurricular involved for sharing the cost of that services and activities may include § 300.309 Extended school year services. placement. counseling services, athletics, (a) General. (1) Each public agency (b) Nothing in this part relieves an transportation, health services, shall ensure that extended school year insurer or similar third party from an recreational activities, special interest services are available as necessary to otherwise valid obligation to provide or groups or clubs sponsored by the public provide FAPE, consistent with to pay for services provided to a child agency, referrals to agencies that paragraph (a)(2) of this section. with a disability. provide assistance to individuals with (2) Extended school year services (c) Consistent with §§ 300.342(b)(2) disabilities, and employment of must be provided only if a child’s IEP and 300.343(b), the State must ensure students, including both employment by team determines, on an individual basis, that there is no delay in implementing the public agency and assistance in in accordance with §§ 300.340–300.350, a child’s IEP, including any case in making outside employment available. that the services are necessary for the which the payment source for providing (Authority: 20 U.S.C. 1412(a)(1)) provision of FAPE to the child. or paying for special education and (3) In implementing the requirements related services to the child is being § 300.307 Physical education. of this section, a public agency may determined. (a) General. Physical education not— (Authority: 20 U.S.C. 1401(8), 1412(a)(1)) services, specially designed if necessary, (i) Limit extended school year must be made available to every child services to particular categories of § 300.302 Residential placement. with a disability receiving FAPE. disability; or If placement in a public or private (b) Regular physical education. Each (ii) Unilaterally limit the type, residential program is necessary to child with a disability must be afforded amount, or duration of those services.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12439

(b) Definition. As used in this section, with respect to the modifications for establishing a child’s eligibility the term extended school year services described in paragraph (c)(1) of this under this part. means special education and related section. (b) Use of individual disability services that— (Authority: 20 U.S.C. 1412(a)(1), 1414(d)(6)) categories. (1) Any State or LEA that (1) Are provided to a child with a elects to use the term developmental disability— § 300.312 Children with disabilities in delay for children aged 3 through 9 may (i) Beyond the normal school year of public charter schools. also use one or more of the disability the public agency; (a) Children with disabilities who categories described in § 300.7 for any (ii) In accordance with the child’s IEP; attend public charter schools and their child within that age range if it is and parents retain all rights under this part. determined, through the evaluation (iii) At no cost to the parents of the (b) If the public charter school is an conducted under §§ 300.530–300.536, child; and LEA, consistent with § 300.17, that that the child has an impairment (2) Meet the standards of the SEA. receives funding under §§ 300.711– described in § 300.7, and because of that (Authority: 20 U.S.C. 1412(a)(1)) 300.714, that charter school is impairment needs special education and responsible for ensuring that the related services. § 300.310 [Reserved] requirements of this part are met, unless (2) The State or LEA shall ensure that § 300.311 FAPE requirements for students State law assigns that responsibility to all of the child’s special education and with disabilities in adult prisons. some other entity. related services needs that have been (a) Exception to FAPE for certain (c) If the public charter school is a identified through the evaluation students. Except as provided in school of an LEA that receives funding described in paragraph (b)(1) of this § 300.122(a)(2)(ii), the obligation to under §§ 300.711–300.714 and includes section are appropriately addressed. other public schools— make FAPE available to all children (c) Common definition of (1) The LEA is responsible for with disabilities does not apply with developmental delay. A State may adopt ensuring that the requirements of this respect to students aged 18 through 21 a common definition of developmental part are met, unless State law assigns to the extent that State law does not delay for use in programs under Parts B that responsibility to some other entity; require that special education and and C of the Act. and related services under Part B of the Act (Authority: 20 U.S.C. 1401(3)(A) and (B)) be provided to students with disabilities (2) The LEA must meet the who, in the last educational placement requirements of § 300.241. Evaluations and Reevaluations prior to their incarceration in an adult (d)(1) If the public charter school is § 300.320 Initial evaluations. correctional facility— not an LEA receiving funding under (1) Were not actually identified as §§ 300.711–300.714, or a school that is (a) Each public agency shall ensure being a child with a disability under part of an LEA receiving funding under that a full and individual evaluation is § 300.7; and §§ 300.711–300.714, the SEA is conducted for each child being (2) Did not have an IEP under Part B responsible for ensuring that the considered for special education and of the Act. requirements of this part are met. related services under Part B of the (b) Requirements that do not apply. (2) Paragraph (d)(1) of this section Act— The following requirements do not does not preclude a State from assigning (1) To determine if the child is a apply to students with disabilities who initial responsibility for ensuring the ‘‘child with a disability’’ under § 300.7; are convicted as adults under State law requirements of this part are met to and another entity; however, the SEA must and incarcerated in adult prisons: (2) To determine the educational maintain the ultimate responsibility for (1) The requirements contained in needs of the child. § 300.138 and § 300.347(a)(5)(i) (relating ensuring compliance with this part, (b) In implementing the requirements to participation of children with consistent with § 300.600. of paragraph (a) of this section, the disabilities in general assessments). (Authority: 20 U.S.C. 1413(a)(5)) public agency shall ensure that— (2) The requirements in § 300.347(b) (relating to transition planning and § 300.313 Children experiencing (1) The evaluation is conducted in transition services), with respect to the developmental delays. accordance with the procedures students whose eligibility under Part B (a) Use of term developmental delay. described in §§ 300.530–300.535; and of the Act will end, because of their age, (1) A State that adopts the term (2) The results of the evaluation are before they will be eligible to be developmental delay under § 300.7(b) used by the child’s IEP team in meeting released from prison based on determines whether it applies to the requirements of §§ 300.340–300.350. consideration of their sentence and children aged 3 through 9, or to a subset (Authority: 20 U.S.C. 1414(a), (b), and (c)) eligibility for early release. of that age range (e.g., ages 3 through 5). (c) Modifications of IEP or placement. (2) A State may not require an LEA to § 300.321 Reevaluations. (1) Subject to paragraph (c)(2) of this adopt and use the term developmental Each public agency shall ensure section, the IEP team of a student with delay for any children within its that— a disability, who is convicted as an jurisdiction. (a) A reevaluation of each child with adult under State law and incarcerated (3) If an LEA uses the term a disability is conducted in accordance in an adult prison, may modify the developmental delay for children with § 300.536; and student’s IEP or placement if the State described in § 300.7(b), the LEA must has demonstrated a bona fide security or conform to both the State’s definition of (b) The results of any reevaluations compelling penological interest that that term and to the age range that has are addressed by the child’s IEP team cannot otherwise be accommodated. been adopted by the State. under §§ 300.340–300.349 in reviewing (2) The requirements of §§ 300.340(a) (4) If a State does not adopt the term and, as appropriate, revising the child’s and 300.347(a) relating to IEPs, and developmental delay, an LEA may not IEP. 300.550(b) relating to LRE, do not apply independently use that term as a basis (Authority: 20 U.S.C. 1414(a)(2))

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12440 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

§§ 300.322±300.324 [Reserved] (3) Each teacher and provider (1) Reviews the child’s IEP Individualized Education Programs described in paragraph (b)(2) of this periodically, but not less than annually, section is informed of— to determine whether the annual goals § 300.340 Definitions related to IEPs. (i) His or her specific responsibilities for the child are being achieved; and (a) Individualized education program. related to implementing the child’s IEP; (2) Revises the IEP as appropriate to As used in this part, the term and address— individualized education program or (ii) The specific accommodations, (i) Any lack of expected progress IEP means a written statement for a modifications, and supports that must toward the annual goals described in child with a disability that is developed, be provided for the child in accordance § 300.347(a), and in the general reviewed, and revised in a meeting in with the IEP. curriculum, if appropriate; (c) IEP or IFSP for children aged 3 (ii) The results of any reevaluation accordance with §§ 300.341–300.350. through 5. (1) In the case of a child with conducted under § 300.536; (b) Participating agency. As used in a disability aged 3 through 5 (or, at the (iii) Information about the child § 300.348, participating agency means a discretion of the SEA a 2-year-old child provided to, or by, the parents, as State or local agency, other than the with a disability who will turn age 3 described in § 300.533(a)(1); public agency responsible for a during the school year), an IFSP that (iv) The child’s anticipated needs; or student’s education, that is financially contains the material described in (v) Other matters. and legally responsible for providing section 636 of the Act, and that is (Authority: 20 U.S.C. 1413(a)(1), transition services to the student. developed in accordance with 1414(d)(4)(A)) (Authority: 20 U.S.C. 1401(11), §§ 300.341–300.346 and §§ 300.349– § 300.344 IEP team. 1412(a)(10)(B)) 300.350, may serve as the IEP of the child if using that plan as the IEP is— (a) General. The public agency shall § 300.341 Responsibility of SEA and other ensure that the IEP team for each child public agencies for IEPs. (i) Consistent with State policy; and (ii) Agreed to by the agency and the with a disability includes— (a) The SEA shall ensure that each child’s parents. (1) The parents of the child; public agency— (2) In implementing the requirements (2) At least one regular education (1) Except as provided in §§ 300.450– of paragraph (c)(1) of this section, the teacher of the child (if the child is, or 300.462, develops and implements an public agency shall— may be, participating in the regular IEP for each child with a disability (i) Provide to the child’s parents a education environment); served by that agency; and detailed explanation of the differences (3) At least one special education (2) Ensures that an IEP is developed between an IFSP and an IEP; and teacher of the child, or if appropriate, at and implemented for each eligible child (ii) If the parents choose an IFSP, least one special education provider of placed in or referred to a private school obtain written informed consent from the child; (4) A representative of the public or facility by the public agency. the parents. agency who— (b) Paragraph (a) of this section (d) Effective date for new (i) Is qualified to provide, or supervise applies to— requirements. All IEPs developed, the provision of, specially designed reviewed, or revised on or after July 1, (1) The SEA, if it is involved in instruction to meet the unique needs of 1998 must meet the requirements of providing direct services to children children with disabilities; with disabilities, in accordance with §§ 300.340–300.350. (ii) Is knowledgeable about the § 300.370(a) and (b)(1); and (Authority: 20 U.S.C. 1414(d)(2)(A) and (B), general curriculum; and (2) Except as provided in § 300.600(d), Pub. L. 105–17, sec. 201(a)(2)(A), (C) (iii) Is knowledgeable about the the other public agencies described in § 300.343 IEP meetings. availability of resources of the public § 300.2, including LEAs and other State agency; agencies that provide special education (a) General. Each public agency is (5) An individual who can interpret and related services either directly, by responsible for initiating and the instructional implications of contract, or through other arrangements. conducting meetings for the purpose of evaluation results, who may be a developing, reviewing, and revising the (Authority: 20 U.S.C. 1412(a)(4), (a)(10)(B)) member of the team described in IEP of a child with a disability (or, if paragraphs (a)(2) through (6) of this § 300.342 When IEPs must be in effect. consistent with § 300.342(c), an IFSP). section; (a) General. At the beginning of each (b) Initial IEPs; provision of services. (6) At the discretion of the parent or school year, each public agency shall (1) Each public agency shall ensure that the agency, other individuals who have have an IEP in effect for each child with within a reasonable period of time knowledge or special expertise a disability within its jurisdiction. following the agency’s receipt of parent regarding the child, including related consent to an initial evaluation of a (b) Implementation of IEPs. Each services personnel as appropriate; and child— public agency shall ensure that— (7) If appropriate, the child. (i) The child is evaluated; and (b) Transition services participants. (1) An IEP— (ii) If determined eligible under this (1) Under paragraph (a)(7) of this (i) Is in effect before special education part, special education and related section, the public agency shall invite a and related services are provided to an services are made available to the child student with a disability of any age to eligible child under this part; and in accordance with an IEP. attend his or her IEP meeting if a (ii) Is implemented as soon as (2) In meeting the requirement in purpose of the meeting will be the possible following the meetings paragraph (b)(1) of this section, a consideration of— described under § 300.343; meeting to develop an IEP for the child (i) The student’s transition services (2) The child’s IEP is accessible to must be conducted within 30-days of a needs under § 300.347(b)(1); each regular education teacher, special determination that the child needs (ii) The needed transition services for education teacher, related service special education and related services. the student under § 300.347(b)(2); or provider, and other service provider (c) Review and revision of IEPs. Each (iii) Both. who is responsible for its public agency shall ensure that the IEP (2) If the student does not attend the implementation; and team— IEP meeting, the public agency shall

VerDate 03-MAR-99 17:45 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm01 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12441 take other steps to ensure that the (3) For a student with a disability strategies, including positive behavioral student’s preferences and interests are beginning at age 16, or younger, if interventions, strategies, and supports to considered. appropriate, the notice must— address that behavior; (3)(i) In implementing the (i) Indicate that a purpose of the (ii) In the case of a child with limited requirements of § 300.347(b)(2), the meeting is the consideration of needed English proficiency, consider the public agency also shall invite a transition services for the student language needs of the child as those representative of any other agency that required in § 300.347(b)(2); needs relate to the child’s IEP; is likely to be responsible for providing (ii) Indicate that the agency will invite (iii) In the case of a child who is blind or paying for transition services. the student; and or visually impaired, provide for (ii) If an agency invited to send a (iii) Identify any other agency that instruction in Braille and the use of representative to a meeting does not do will be invited to send a representative. Braille unless the IEP team determines, so, the public agency shall take other (c) Other methods to ensure parent after an evaluation of the child’s reading steps to obtain participation of the other participation. If neither parent can and writing skills, needs, and agency in the planning of any transition attend, the public agency shall use other appropriate reading and writing media services. methods to ensure parent participation, (including an evaluation of the child’s (c) Determination of knowledge and including individual or conference future needs for instruction in Braille or special expertise. The determination of telephone calls. the use of Braille), that instruction in the knowledge or special expertise of (d) Conducting an IEP meeting Braille or the use of Braille is not any individual described in paragraph without a parent in attendance. A appropriate for the child; (a)(6) of this section shall be made by meeting may be conducted without a (iv) Consider the communication the party (parents or public agency) who parent in attendance if the public needs of the child, and in the case of a invited the individual to be a member agency is unable to convince the parents child who is deaf or hard of hearing, of the IEP. that they should attend. In this case the consider the child’s language and (d) Designating a public agency public agency must have a record of its communication needs, opportunities for representative. A public agency may attempts to arrange a mutually agreed direct communications with peers and designate another public agency on time and place, such as— professional personnel in the child’s member of the IEP team to also serve as (1) Detailed records of telephone calls language and communication mode, the agency representative, if the criteria made or attempted and the results of academic level, and full range of needs, in paragraph (a)(4) of this section are those calls; including opportunities for direct satisfied. (2) Copies of correspondence sent to instruction in the child’s language and the parents and any responses received; (Authority: 20 U.S.C. 1401(30), communication mode; and and (v) Consider whether the child 1414(d)(1)(A)(7), (B)) (3) Detailed records of visits made to requires assistive technology devices the parent’s home or place of § 300.345 Parent participation. and services. employment and the results of those (a) Public agency responsibility— (b) Review and Revision of IEP. In visits. general. Each public agency shall take (e) Use of interpreters or other action, conducting a meeting to review, and, if steps to ensure that one or both of the as appropriate. The public agency shall appropriate, revise a child’s IEP, the IEP parents of a child with a disability are take whatever action is necessary to team shall consider the factors present at each IEP meeting or are ensure that the parent understands the described in paragraph (a) of this afforded the opportunity to participate, proceedings at the IEP meeting, section. including— including arranging for an interpreter (c) Statement in IEP. If, in considering (1) Notifying parents of the meeting for parents with deafness or whose the special factors described in early enough to ensure that they will native language is other than English. paragraphs (a)(1) and (2) of this section, have an opportunity to attend; and (f) Parent copy of child’s IEP. The the IEP team determines that a child (2) Scheduling the meeting at a public agency shall give the parent a needs a particular device or service mutually agreed on time and place. copy of the child’s IEP at no cost to the (including an intervention, (b) Information provided to parents. parent. accommodation, or other program (1) The notice required under paragraph modification) in order for the child to (a)(1) of this section must— (Authority: 20 U.S.C. 1414(d)(1)(B)(i)) receive FAPE, the IEP team must (i) Indicate the purpose, time, and § 300.346 Development, review, and include a statement to that effect in the location of the meeting and who will be revision of IEP. child’s IEP. in attendance; and (a) Development of IEP. (1) General. In (d) Requirement with respect to (ii) Inform the parents of the developing each child’s IEP, the IEP regular education teacher. The regular provisions in § 300.344(a)(6) and (c) team, shall consider— education teacher of a child with a (relating to the participation of other (i) The strengths of the child and the disability, as a member of the IEP team, individuals on the IEP team who have concerns of the parents for enhancing must, to the extent appropriate, knowledge or special expertise about the education of their child; participate in the development, review, the child). (ii) The results of the initial or most and revision of the child’s IEP, (2) For a student with a disability recent evaluation of the child; and including assisting in the determination beginning at age 14, or younger, if (iii) As appropriate, the results of the of— appropriate, the notice must also— child’s performance on any general (1) Appropriate positive behavioral (i) Indicate that a purpose of the State or district-wide assessment interventions and strategies for the meeting will be the development of a programs. child; and statement of the transition services (2) Consideration of special factors. (2) Supplementary aids and services, needs of the student required in The IEP team also shall— program modifications or supports for § 300.347(b)(1); and (i) In the case of a child whose school personnel that will be provided (ii) Indicate that the agency will invite behavior impedes his or her learning or for the child, consistent with the student. that of others, consider, if appropriate, § 300.347(a)(3).

VerDate 03-MAR-99 17:45 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm01 PsN: 12MRR2 12442 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

(e) Construction. Nothing in this (ii) If the IEP team determines that the (Authority: 20 U.S.C. 1414(d)(1)(A) and section shall be construed to require the child will not participate in a particular (d)(6)(A)(ii)) IEP team to include information under State or district-wide assessment of § 300.348 Agency responsibilities for one component of a child’s IEP that is student achievement (or part of an transition services. already contained under another assessment), a statement of— (a) If a participating agency, other component of the child’s IEP. (A) Why that assessment is not than the public agency, fails to provide (Authority: 20 U.S.C. 1414(d)(3) and (4)(B) appropriate for the child; and the transition services described in the and (e)) (B) How the child will be assessed; IEP in accordance with § 300.347(b)(1), (6) The projected date for the the public agency shall reconvene the § 300.347 Content of IEP. beginning of the services and IEP team to identify alternative (a) General. The IEP for each child modifications described in paragraph strategies to meet the transition with a disability must include— (a)(3) of this section, and the anticipated objectives for the student set out in the (1) A statement of the child’s present frequency, location, and duration of IEP. levels of educational performance, those services and modifications; and (b) Nothing in this part relieves any including— (7) A statement of— participating agency, including a State (i) How the child’s disability affects (i) How the child’s progress toward vocational rehabilitation agency, of the the child’s involvement and progress in the annual goals described in paragraph responsibility to provide or pay for any the general curriculum (i.e., the same (a)(2) of this section will be measured; transition service that the agency would curriculum as for nondisabled children); and otherwise provide to students with or (ii) How the child’s parents will be disabilities who meet the eligibility (ii) For preschool children, as regularly informed (through such means criteria of that agency. appropriate, how the disability affects as periodic report cards), at least as the child’s participation in appropriate (Authority: 20 U.S.C. 1414(d)(5); often as parents are informed of their 1414(d)(1)(A)(vii)) activities; nondisabled children’s progress, of— (2) A statement of measurable annual (A) Their child’s progress toward the § 300.349 Private school placements by goals, including benchmarks or short- annual goals; and public agencies. term objectives, related to— (B) The extent to which that progress (a) Developing IEPs. (1) Before a (i) Meeting the child’s needs that is sufficient to enable the child to public agency places a child with a result from the child’s disability to achieve the goals by the end of the year. disability in, or refers a child to, a enable the child to be involved in and (b) Transition services. The IEP must private school or facility, the agency progress in the general curriculum (i.e., include— shall initiate and conduct a meeting to the same curriculum as for nondisabled (1) For each student with a disability develop an IEP for the child in children), or for preschool children, as beginning at age 14 (or younger, if accordance with §§ 300.346 and appropriate, to participate in determined appropriate by the IEP 300.347. appropriate activities; and team), and updated annually, a (2) The agency shall ensure that a (ii) Meeting each of the child’s other representative of the private school or educational needs that result from the statement of the transition service needs of the student under the applicable facility attends the meeting. If the child’s disability; representative cannot attend, the agency components of the student’s IEP that (3) A statement of the special shall use other methods to ensure focuses on the student’s courses of education and related services and participation by the private school or study (such as participation in supplementary aids and services to be facility, including individual or advanced-placement courses or a provided to the child, or on behalf of the conference telephone calls. child, and a statement of the program vocational education program); and (b) Reviewing and revising IEPs. (1) modifications or supports for school (2) For each student beginning at age After a child with a disability enters a personnel that will be provided for the 16 (or younger, if determined private school or facility, any meetings child— appropriate by the IEP team), a to review and revise the child’s IEP may (i) To advance appropriately toward statement of needed transition services be initiated and conducted by the attaining the annual goals; for the student, including, if private school or facility at the (ii) To be involved and progress in the appropriate, a statement of the discretion of the public agency. general curriculum in accordance with interagency responsibilities or any (2) If the private school or facility paragraph (a)(1) of this section and to needed linkages. initiates and conducts these meetings, participate in extracurricular and other (c) Transfer of rights. In a State that the public agency shall ensure that the nonacademic activities; and transfers rights at the age majority, parents and an agency representative— (iii) To be educated and participate beginning at least one year before a (i) Are involved in any decision about with other children with disabilities and student reaches the age of majority the child’s IEP; and nondisabled children in the activities under State law, the student’s IEP must (ii) Agree to any proposed changes in described in this section; include a statement that the student has the IEP before those changes are (4) An explanation of the extent, if been informed of his or her rights under implemented. any, to which the child will not Part B of the Act, if any, that will (c) Responsibility. Even if a private participate with nondisabled children in transfer to the student on reaching the school or facility implements a child’s the regular class and in the activities age of majority, consistent with IEP, responsibility for compliance with described in paragraph (a)(3) of this § 300.517. this part remains with the public agency section; (d) Students with disabilities and the SEA. (5)(i) A statement of any individual convicted as adults and incarcerated in (Authority: 20 U.S.C. 1412(a)(10)(B)) modifications in the administration of adult prisons. Special rules concerning State or district-wide assessments of the content of IEPs for students with § 300.350 IEPÐaccountability. student achievement that are needed in disabilities convicted as adults and (a) Provision of services. Subject to order for the child to participate in the incarcerated in adult prisons are paragraph (b) of this section, each assessment; and contained in § 300.311(b) and (c). public agency must—

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12443

(1) Provide special education and (ii) Consistent with § 300.301(a), the of the Act. This system must be related services to a child with a [State; SEA] may use whatever funding coordinated with and, to the extent disability in accordance with the child’s sources are available in the State to appropriate, build on the system of IEP; and implement paragraph (b)(2)(i) of this coordinated services developed by the (2) Make a good faith effort to assist section. State under Part C of the Act. the child to achieve the goals and (c) SEA administrative procedures. (1) (8) For subgrants to LEAs for the objectives or benchmarks listed in the In meeting the requirements in purposes described in § 300.622 (local IEP. paragraph (a) of this section, the SEA capacity building). (b) Accountability. Part B of the Act may provide special education and (b) For the purposes of paragraph (a) does not require that any agency, related services directly, by contract, or of this section— teacher, or other person be held through other arrangements. (1) Direct services means services accountable if a child does not achieve (2) The excess cost requirements of provided to a child with a disability by the growth projected in the annual goals §§ 300.184 and 300.185 do not apply to the State directly, by contract, or and benchmarks or objectives. However, the SEA. through other arrangements; and the Act does not prohibit a State or (Authority: 20 U.S.C. 1413(h)(1)) (2) Support services includes public agency from establishing its own implementing the comprehensive accountability systems regarding § 300.361 Nature and location of services. system of personnel development under teacher, school, or agency performance. The SEA may provide special §§ 300.380–300.382, recruitment and (c) Construction—parent rights. education and related services under training of mediators, hearing officers, Nothing in this section limits a parent’s § 300.360(a) in the manner and at the and surrogate parents, and public right to ask for revisions of the child’s location it considers appropriate information and parent training IEP or to invoke due process procedures (including regional and State centers). activities relating to FAPE for children if the parent feels that the efforts However, the manner in which the with disabilities. required in paragraph (a) of this section education and services are provided (c) Of the funds an SEA retains under are not being made. must be consistent with the paragraph (a) of this section, the SEA requirements of this part (including the may use the funds directly, or distribute (Authority: 20 U.S.C. 1414(d)); Cong. Rec. at them to LEAs on a competitive, targeted, H7152 (daily ed., July 21, 1975)) LRE provisions of §§ 300.550–300.556). or formula basis. (Authority: 20 U.S.C. 1413(h)(2)) Direct Services by the Sea (Authority: 20 U.S.C. 1411(f)(3)) §§ 300.362±300.369 [Reserved] § 300.360 Use of LEA allocation for direct § 300.371 [Reserved] services. § 300.370 Use of SEA allocations. (a) General. An SEA shall use the (a) Each State shall use any funds it § 300.372 Nonapplicability of requirements payments that would otherwise have that prohibit commingling and supplanting retains under § 300.602 and does not of funds. been available to an LEA or to a State use for administration under § 300.620 agency to provide special education and for any of the following: A State may use funds it retains under related services directly to children with (1) Support and direct services, § 300.602 without regard to— disabilities residing in the area served including technical assistance and (a) The prohibition on commingling of by that local agency, or for whom that personnel development and training. funds in § 300.152; and State agency is responsible, if the SEA (2) Administrative costs of monitoring (b) The prohibition on supplanting determines that the LEA or State and complaint investigation, but only to other funds in § 300.153. agency— the extent that those costs exceed the (Authority: 20 U.S.C. 1411(f)(1)(C)) (1) Has not provided the information costs incurred for those activities during Comprehensive System of Personnel needed to establish the eligibility of the fiscal year 1985. Development (CSPD) agency under Part B of the Act; (3) To establish and implement the (2) Is unable to establish and maintain mediation process required by § 300.380 General CSPD requirements. programs of FAPE that meet the § 300.506, including providing for the (a) Each State shall develop and requirements of this part; costs of mediators and support implement a comprehensive system of (3) Is unable or unwilling to be personnel. personnel development that— consolidated with one or more LEAs in (4) To assist LEAs in meeting (1) Is consistent with the purposes of order to establish and maintain the personnel shortages. this part and with section 635(a)(8) of programs; or (5) To develop a State Improvement the Act; (4) Has one or more children with Plan under subpart 1 of Part D of the (2) Is designed to ensure an adequate disabilities who can best be served by a Act. supply of qualified special education, regional or State program or service- (6) Activities at the State and local regular education, and related services delivery system designed to meet the levels to meet the performance goals personnel; needs of these children. established by the State under § 300.137 (3) Meets the requirements of (b) SEA responsibility if an LEA does and to support implementation of the §§ 300.381 and 300.382; and not apply for Part B funds. (1) If an LEA State Improvement Plan under subpart 1 (4) Is updated at least every five years. elects not to apply for its Part B of Part D of the Act if the State receives (b) A State that has a State allotment, the SEA must use those funds funds under that subpart. improvement grant has met the to ensure that FAPE is available to all (7) To supplement other amounts requirements of paragraph (a) of this eligible children residing in the used to develop and implement a section. jurisdiction of the LEA. Statewide coordinated services system (Authority: 20 U.S.C. 1412(a)(14)) (2)(i) If the local allotment is not designed to improve results for children sufficient to meet the purpose described and families, including children with § 300.381 Adequate supply of qualified in paragraph (b)(1) of this section, the disabilities and their families, but not to personnel. SEA must ensure compliance with exceed one percent of the amount Each State must include, at least, an §§ 300.121(a) and 300.300(a). received by the State under section 611 analysis of State and local needs for

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12444 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations professional development for personnel reciprocity in credentialing of teachers education provided by the SEA and to serve children with disabilities that and other personnel; LEAs (including the requirements of includes, at a minimum— (f) Enhance the ability of teachers and this part); and (a) The number of personnel others to use strategies, such as (c) Has all of the rights of a child with providing special education and related behavioral interventions, to address the a disability who is served by a public services; and conduct of children with disabilities agency. (b) Relevant information on current that impedes the learning of children (Authority: 20 U.S.C. 1412(a)(10)(B)) and anticipated personnel vacancies with disabilities and others; and shortages (including the number of (g) Acquire and disseminate, to § 300.402 Implementation by State individuals described in paragraph (a) teachers, administrators, school board educational agency. of this section with temporary members, and related services In implementing § 300.401, the SEA certification), and on the extent of personnel, significant knowledge shall— certification or retraining necessary to derived from educational research and (a) Monitor compliance through eliminate these shortages, that is based, other sources, and how the State will, if procedures such as written reports, on- to the maximum extent possible, on appropriate, adopt promising practices, site visits, and parent questionnaires; existing assessments of personnel needs. materials, and technology; (b) Disseminate copies of applicable (Authority: 20 U.S.C. 1453(b)(2)(B)) (h) Recruit, prepare, and retain standards to each private school and qualified personnel, including facility to which a public agency has § 300.382 Improvement strategies. personnel with disabilities and referred or placed a child with a Each State must describe the personnel from groups that are under- disability; and strategies the State will use to address represented in the fields of regular (c) Provide an opportunity for those the needs identified under § 300.381. education, special education, and private schools and facilities to These strategies must include how the related services; participate in the development and State will address the identified needs (i) Insure that the plan is integrated, revision of State standards that apply to for in-service and pre-service to the maximum extent possible, with them. preparation to ensure that all personnel other professional development plans (Authority: 20 U.S.C. 1412(a)(10)(B)) who work with children with and activities, including plans and disabilities (including both professional activities developed and carried out Children With Disabilities Enrolled by and paraprofessional personnel who under other Federal and State laws that Their Parents in Private Schools When provide special education, general address personnel recruitment and FAPE Is at Issue education, related services, or early training; and intervention services) have the skills (j) Provide for the joint training of § 300.403 Placement of children by parents if FAPE is at issue. and knowledge necessary to meet the parents and special education, related needs of children with disabilities. The services, and general education (a) General. This part does not require plan must include a description of how personnel. an LEA to pay for the cost of education, including special education and related the State will— (Authority: 20 U.S.C. 1453 (c)(3)(D)) (a) Prepare general and special services, of a child with a disability at education personnel with the content §§ 300.383±300.387 [Reserved] a private school or facility if that agency knowledge and collaborative skills made FAPE available to the child and needed to meet the needs of children Subpart DÐChildren in Private the parents elected to place the child in with disabilities including how the Schools a private school or facility. However, the State will work with other States on public agency shall include that child in Children With Disabilities in Private the population whose needs are common certification criteria; Schools Placed or Referred by Public (b) Prepare professionals and addressed consistent with §§ 300.450– Agencies paraprofessionals in the area of early 300.462. intervention with the content § 300.400 Applicability of §§ 300.400± (b) Disagreements about FAPE. knowledge and collaborative skills 300.402. Disagreements between a parent and a needed to meet the needs of infants and Sections 300.401–300.402 apply only public agency regarding the availability toddlers with disabilities; to children with disabilities who are or of a program appropriate for the child, (c) Work with institutions of higher have been placed in or referred to a and the question of financial education and other entities that (on private school or facility by a public responsibility, are subject to the due both a pre-service and an in-service agency as a means of providing special process procedures of §§ 300.500– basis) prepare personnel who work with education and related services. 300.517. children with disabilities to ensure that (c) Reimbursement for private school (Authority: 20 U.S.C. 1412(a)(10)(B)) those institutions and entities develop placement. If the parents of a child with the capacity to support quality § 300.401 Responsibility of State a disability, who previously received professional development programs that educational agency. special education and related services meet State and local needs; Each SEA shall ensure that a child under the authority of a public agency, (d) Work to develop collaborative with a disability who is placed in or enroll the child in a private preschool, agreements with other States for the referred to a private school or facility by elementary, or secondary school joint support and development of a public agency— without the consent of or referral by the programs to prepare personnel for (a) Is provided special education and public agency, a court or a hearing which there is not sufficient demand related services— officer may require the agency to within a single State to justify support (1) In conformance with an IEP that reimburse the parents for the cost of that or development of a program of meets the requirements of §§ 300.340– enrollment if the court or hearing officer preparation; 300.350; and finds that the agency had not made (e) Work in collaboration with other (2) At no cost to the parents; FAPE available to the child in a timely States, particularly neighboring States, (b) Is provided an education that manner prior to that enrollment and that to address the lack of uniformity and meets the standards that apply to the private placement is appropriate. A

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12445 parental placement may be found to be children with disabilities enrolled by private school children with disabilities appropriate by a hearing officer or a their parents in private schools or aged 3 through 5 residing in its court even if it does not meet the State facilities other than children with jurisdiction is to the total number of standards that apply to education disabilities covered under §§ 300.400– children with disabilities in its provided by the SEA and LEAs. 300.402. jurisdiction aged 3 through 5. (d) Limitation on reimbursement. The (Authority: 20 U.S.C. 1412(a)(10)(A)) (b) Child count. (1) Each LEA shall— cost of reimbursement described in (i) Consult with representatives of paragraph (c) of this section may be § 300.451 Child find for private school private school children in deciding how reduced or denied— children with disabilities. to conduct the annual count of the (1) If— (a) Each LEA shall locate, identify, number of private school children with (i) At the most recent IEP meeting that and evaluate all private school children disabilities; and the parents attended prior to removal of with disabilities, including religious- (ii) Ensure that the count is conducted the child from the public school, the school children residing in the on December 1 or the last Friday of parents did not inform the IEP team that jurisdiction of the LEA, in accordance October of each year. they were rejecting the placement with §§ 300.125 and 300.220. The (2) The child count must be used to proposed by the public agency to activities undertaken to carry out this determine the amount that the LEA provide FAPE to their child, including responsibility for private school must spend on providing special stating their concerns and their intent to children with disabilities must be education and related services to private enroll their child in a private school at comparable to activities undertaken for school children with disabilities in the public expense; or children with disabilities in public next subsequent fiscal year. (ii) At least ten (10) business days schools. (c) Expenditures for child find may (including any holidays that occur on a (b) Each LEA shall consult with not be considered. Expenditures for business day) prior to the removal of the appropriate representatives of private child find activities described in child from the public school, the school children with disabilities on how § 300.451 may not be considered in parents did not give written notice to to carry out the activities described in determining whether the LEA has met the public agency of the information paragraph (a) of this section. the requirements of paragraph (a) of this described in paragraph (d)(1)(i) of this (Authority: 20 U.S.C. 1412(a)(10)(A)(ii)) section. section; (d) Additional services permissible. (2) If, prior to the parents’ removal of § 300.452 Provision of servicesÐbasic requirement. State and local educational agencies are the child from the public school, the not prohibited from providing services public agency informed the parents, (a) General. To the extent consistent with their number and location in the to private school children with through the notice requirements disabilities in excess of those required described in § 300.503(a)(1), of its intent State, provision must be made for the participation of private school children by this part, consistent with State law or to evaluate the child (including a local policy. statement of the purpose of the with disabilities in the program assisted (Authority: 20 U.S.C. 1412(a)(10)(A)) evaluation that was appropriate and or carried out under Part B of the Act by providing them with special reasonable), but the parents did not § 300.454 Services determined. education and related services in make the child available for the (a) No individual right to special evaluation; or accordance with §§ 300.453–300.462. (b) SEA Responsibility—services plan. education and related services. (1) No (3) Upon a judicial finding of private school child with a disability unreasonableness with respect to Each SEA shall ensure that, in accordance with paragraph (a) of this has an individual right to receive some actions taken by the parents. or all of the special education and (e) Exception. Notwithstanding the section and §§ 300.454–300.456, a services plan is developed and related services that the child would notice requirement in paragraph (d)(1) receive if enrolled in a public school. of this section, the cost of implemented for each private school child with a disability who has been (2) Decisions about the services that reimbursement may not be reduced or will be provided to private school denied for failure to provide the notice designated to receive special education and related services under this part. children with disabilities under if— §§ 300.452–300.462, must be made in (Authority: 20 U.S.C. 1412(a)(10)(A)(i)) (1) The parent is illiterate and cannot accordance with paragraphs (b), and (c) write in English; § 300.453 Expenditures. of this section. (2) Compliance with paragraph (d)(1) (a) Formula. To meet the requirement (b) Consultation with representatives of this section would likely result in of private school children with physical or serious emotional harm to of § 300.452(a), each LEA must spend on providing special education and related disabilities. (1) General. Each LEA shall the child; consult, in a timely and meaningful (3) The school prevented the parent services to private school children with way, with appropriate representatives of from providing the notice; or disabilities— private school children with disabilities (4) The parents had not received (1) For children aged 3 through 21, an in light of the funding under § 300.453, notice, pursuant to section 615 of the amount that is the same proportion of the number of private school children Act, of the notice requirement in the LEA’s total subgrant under section with disabilities, the needs of private paragraph (d)(1) of this section. 611(g) of the Act as the number of private school children with disabilities school children with disabilities, and (Authority: 20 U.S.C. 1412(a)(10)(C)) aged 3 through 21 residing in its their location to decide— Children With Disabilities Enrolled by jurisdiction is to the total number of (i) Which children will receive Their Parents in Private Schools children with disabilities in its services under § 300.452; jurisdiction aged 3 through 21; and (ii) What services will be provided; § 300.450 Definition of ``private school (2) For children aged 3 through 5, an (iii) How and where the services will children with disabilities.'' amount that is the same proportion of be provided; and As used in this part, private school the LEA’s total subgrant under section (iv) How the services provided will be children with disabilities means 619(g) of the Act as the number of evaluated.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12446 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

(2) Genuine opportunity. Each LEA (i) Meet the requirements of § 300.347, (b) The classes include students shall give appropriate representatives of with respect to the services provided; enrolled in public schools and students private school children with disabilities and enrolled in private schools. a genuine opportunity to express their (ii) Be developed, reviewed, and (Authority: 20 U.S.C. 1412(a)(10)(A)) views regarding each matter that is revised consistent with §§ 300.342– subject to the consultation requirements 300.346. § 300.459 Requirement that funds not benefit a private school. in this section. (Authority: 20 U.S.C. 1412(a)(10)(A)) (3) Timing. The consultation required (a) An LEA may not use funds by paragraph (b)(1) of this section must § 300.456 Location of services; provided under section 611 or 619 of occur before the LEA makes any transportation. the Act to finance the existing level of decision that affects the opportunities of (a) On-site. Services provided to instruction in a private school or to private school children with disabilities private school children with disabilities otherwise benefit the private school. to participate in services under may be provided on-site at a child’s (b) The LEA shall use funds provided §§ 300.452–300.462. private school, including a religious under Part B of the Act to meet the (4) Decisions. The LEA shall make the school, to the extent consistent with special education and related services final decisions with respect to the law. needs of students enrolled in private services to be provided to eligible (b) Transportation. (1) General. (i) If schools, but not for— private school children. necessary for the child to benefit from (1) The needs of a private school; or (c) Services plan for each child served or participate in the services provided (2) The general needs of the students under §§ 300.450–300.462. If a child under this part, a private school child enrolled in the private school. with a disability is enrolled in a with a disability must be provided (Authority: 20 U.S.C. 1412(a)(10)(A)) religious or other private school and transportation— will receive special education or related (A) From the child’s school or the § 300.460 Use of public school personnel. services from an LEA, the LEA shall— child’s home to a site other than the An LEA may use funds available (1) Initiate and conduct meetings to private school; and under sections 611 and 619 of the Act develop, review, and revise a services (B) From the service site to the private to make public school personnel plan for the child, in accordance with school, or to the child’s home, available in other than public § 300.455(b); and depending on the timing of the services. facilities— (ii) LEAs are not required to provide (2) Ensure that a representative of the (a) To the extent necessary to provide transportation from the child’s home to religious or other private school attends services under §§ 300.450–300.462 for the private school. each meeting. If the representative private school children with disabilities; (2) Cost of transportation. The cost of cannot attend, the LEA shall use other and the transportation described in methods to ensure participation by the (b) If those services are not normally paragraph (b)(1)(i) of this section may be private school, including individual or provided by the private school. included in calculating whether the conference telephone calls. (Authority: 20 U.S.C. 1412(a)(10)(A)) LEA has met the requirement of (Authority: 1412(a)(10)(A)) § 300.453. § 300.461 Use of private school personnel. § 300.455 Services provided. (Authority: 20 U.S.C. 1412(a)(10)(A)) An LEA may use funds available under section 611 or 619 of the Act to (a) General. (1) The services provided § 300.457 Complaints. to private school children with pay for the services of an employee of (a) Due process inapplicable. The a private school to provide services disabilities must be provided by procedures in §§ 300.504–300.515 do personnel meeting the same standards under §§ 300.450–300.462 if— not apply to complaints that an LEA has (a) The employee performs the as personnel providing services in the failed to meet the requirements of public schools. services outside of his or her regular §§ 300.452–300.462, including the hours of duty; and (2) Private school children with provision of services indicated on the (b) The employee performs the disabilities may receive a different child’s services plan. services under public supervision and amount of services than children with (b) Due process applicable. The control. disabilities in public schools. procedures in §§ 300.504–300.515 do (3) No private school child with a apply to complaints that an LEA has (Authority: 20 U.S.C. 1412(a)(10)(A)) disability is entitled to any service or to failed to meet the requirements of § 300.462 Requirements concerning any amount of a service the child would § 300.451, including the requirements of property, equipment, and supplies for the receive if enrolled in a public school. §§ 300.530–300.543. benefit of private school children with (b) Services provided in accordance (c) State complaints. Complaints that disabilities. with a services plan. (1) Each private an SEA or LEA has failed to meet the (a) A public agency must keep title to school child with a disability who has requirements of §§ 300.451–300.462 and exercise continuing administrative been designated to receive services may be filed under the procedures in control of all property, equipment, and under § 300.452 must have a services §§ 300.660–300.662. supplies that the public agency acquires plan that describes the specific special (Authority: 20 U.S.C. 1412(a)(10)(A)) with funds under section 611 or 619 of education and related services that the the Act for the benefit of private school LEA will provide to the child in light of § 300.458 Separate classes prohibited. children with disabilities. the services that the LEA has An LEA may not use funds available (b) The public agency may place determined, through the process under section 611 or 619 of the Act for equipment and supplies in a private described in §§ 300.453–300.454, it will classes that are organized separately on school for the period of time needed for make available to private school the basis of school enrollment or the program. children with disabilities. religion of the students if— (c) The public agency shall ensure (2) The services plan must, to the (a) The classes are at the same site; that the equipment and supplies placed extent appropriate— and in a private school—

VerDate 03-MAR-99 17:45 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm01 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12447

(1) Are used only for Part B purposes; determines the maximum amount to be (2) Designates a person to conduct the and paid to the providers of services by show cause hearing. The designee must (2) Can be removed from the private multiplying— not have had any responsibility for the school without remodeling the private (1) A per child amount that may not matter brought for a hearing. school facility. exceed the amount per child provided (b) At the show cause hearing, the (d) The public agency shall remove by the Secretary under Part B of the Act designee considers matters such as— equipment and supplies from a private for all children with disabilities in the (1) The necessity for implementing a school if— State for the preceding fiscal year; by by-pass; (1) The equipment and supplies are (2) The number of private school (2) Possible factual errors in the no longer needed for Part B purposes; or children with disabilities (as defined by written notice of intent to implement a (2) Removal is necessary to avoid §§ 300.7(a) and 300.450) in the State, as by-pass; and unauthorized use of the equipment and determined by the Secretary on the basis (3) The objections raised by public supplies for other than Part B purposes. of the most recent satisfactory data and private school representatives. (e) No funds under Part B of the Act available, which may include an (c) The designee may regulate the may be used for repairs, minor estimate of the number of those children course of the proceedings and the remodeling, or construction of private with disabilities. conduct of parties during the pendency school facilities. (d) The Secretary deducts from the of the proceedings. The designee takes all steps necessary to conduct a fair and (Authority: 20 U.S.C. 1412(a)(10)(A)) State’s allocation under Part B of the Act the amount the Secretary determines is impartial proceeding, to avoid delay, Procedures for By-Pass necessary to implement a by-pass and and to maintain order. pays that amount to the provider of (d) The designee may interpret § 300.480 By-passÐgeneral. applicable statutes and regulations, but (a) The Secretary implements a by- services. The Secretary may withhold this amount from the State’s allocation may not waive them or rule on their pass if an SEA is, and was on December validity. 2, 1983, prohibited by law from pending final resolution of any investigation or complaint that could (e) The designee arranges for the providing for the participation of private preparation, retention, and, if school children with disabilities in the result in a determination that a by-pass must be implemented. appropriate, dissemination of the record program assisted or carried out under of the hearing. Part B of the Act, as required by section (Authority: 20 U.S.C. 1412(f)(2)) (Authority: 20 U.S.C. 1412(f)(3)) 612(a)(10)(A) of the Act and by § 300.482 Notice of intent to implement a §§ 300.452–300.462. by-pass. § 300.485 Decision. (b) The Secretary waives the (a) The designee who conducts the requirement of section 612(a)(10)(A) of (a) Before taking any final action to implement a by-pass, the Secretary show cause hearing— the Act and of §§ 300.452–300.462 if the (1) Issues a written decision that Secretary implements a by-pass. provides the affected SEA with written notice. includes a statement of findings; and (2) Submits a copy of the decision to (Authority: 20 U.S.C. 1412(f)(1)) (b) In the written notice, the the Secretary and sends a copy to each Secretary— § 300.481 Provisions for services under a party by certified mail with return (1) States the reasons for the proposed by-pass. receipt requested. (a) Before implementing a by-pass, the by-pass in sufficient detail to allow the (b) Each party may submit comments Secretary consults with appropriate SEA to respond; and and recommendations on the designee’s public and private school officials, (2) Advises the SEA that it has a decision to the Secretary within 15 days including SEA officials, in the affected specific period of time (at least 45 days) of the date the party receives the State to consider matters such as— from receipt of the written notice to designee’s decision. (1) The prohibition imposed by State submit written objections to the (c) The Secretary adopts, reverses, or law that results in the need for a by- proposed by-pass and that it may modifies the designee’s decision and pass; request in writing the opportunity for a notifies the SEA of the Secretary’s final (2) The scope and nature of the hearing to show cause why a by-pass action. That notice is sent by certified services required by private school should not be implemented. mail with return receipt requested. (c) The Secretary sends the notice to children with disabilities in the State, (Authority: 20 U.S.C. 1412(f)(3)) and the number of children to be served the SEA by certified mail with return under the by-pass; and receipt requested. § 300.486 Filing requirements. (3) The establishment of policies and (Authority: 20 U.S.C. 1412(f)(3)(A)) (a) Any written submission under procedures to ensure that private school § 300.483 Request to show cause. §§ 300.482–300.485 must be filed by children with disabilities receive hand-delivery, by mail, or by facsimile services consistent with the An SEA seeking an opportunity to transmission. The Secretary discourages requirements of section 612(a)(10)(A) of show cause why a by-pass should not be the use of facsimile transmission for the Act and §§ 300.452–300.462. implemented shall submit a written documents longer than five pages. (b) After determining that a by-pass is request for a show cause hearing to the (b) The filing date under paragraph (a) required, the Secretary arranges for the Secretary. of this section is the date the document provision of services to private school (Authority: 20 U.S.C. 1412(f)(3)) is— children with disabilities in the State in (1) Hand-delivered; a manner consistent with the § 300.484 Show cause hearing. (2) Mailed; or requirements of section 612(a)(10)(A) of (a) If a show cause hearing is (3) Sent by facsimile transmission. the Act and §§ 300.452–300.462 by requested, the Secretary— (c) A party filing by facsimile providing services through one or more (1) Notifies the SEA and other transmission is responsible for agreements with appropriate parties. appropriate public and private school confirming that a complete and legible (c) For any fiscal year that a by-pass officials of the time and place for the copy of the document was received by is implemented, the Secretary hearing; and the Department.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12448 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

(d) If a document is filed by facsimile (i) The name of the child, the child’s individual or conference telephone transmission, the Secretary or the parent, or other family member; calls, or video conferencing. hearing officer, as applicable, may (ii) The address of the child; (4) A placement decision may be require the filing of a follow-up hard (iii) A personal identifier, such as the made by a group without the copy by hand-delivery or by mail within child’s social security number or involvement of the parents, if the public a reasonable period of time. student number; or agency is unable to obtain the parents’ (e) If agreed upon by the parties, (iv) A list of personal characteristics participation in the decision. In this service of a document may be made or other information that would make it case, the public agency must have a upon the other party by facsimile possible to identify the child with record of its attempt to ensure their transmission. reasonable certainty. involvement, including information that is consistent with the requirements of (Authority: 20 U.S.C. 1412(f)(3)) (Authority: 20 U.S.C. 1415(a)) § 300.345(d). § 300.487 Judicial review. § 300.501 Opportunity to examine records; (5) The public agency shall make If dissatisfied with the Secretary’s parent participation in meetings. reasonable efforts to ensure that the final action, the SEA may, within 60 (a) General. The parents of a child parents understand, and are able to days after notice of that action, file a with a disability must be afforded, in participate in, any group discussions petition for review with the United accordance with the procedures of relating to the educational placement of States Court of Appeals for the circuit in §§ 300.562–300.569, an opportunity to— their child, including arranging for an which the State is located. The (1) Inspect and review all education interpreter for parents with deafness, or procedures for judicial review are records with respect to— whose native language is other than described in section 612(f)(3)(B)–(D) of (i) The identification, evaluation, and English. the Act. educational placement of the child; and (Authority: 20 U.S.C. 1414(f), 1415(b)(1)) (Authority: 20 U.S.C. 1412(f)(3)(B)–(D)) (ii) The provision of FAPE to the child; and § 300.502 Independent educational evaluation. Subpart EÐProcedural Safeguards (2) Participate in meetings with respect to — (a) General. (1) The parents of a child Due Process Procedures for Parents and (i) The identification, evaluation, and with a disability have the right under Children educational placement of the child; and this part to obtain an independent (ii) The provision of FAPE to the educational evaluation of the child, § 300.500 General responsibility of public subject to paragraphs (b) through (e) of agencies; definitions. child. (b) Parent participation in meetings. this section. (a) Responsibility of SEA and other (2) Each public agency shall provide (1) Each public agency shall provide public agencies. Each SEA shall ensure to parents, upon request for an notice consistent with § 300.345(a)(1) that each public agency establishes, independent educational evaluation, and (b)(1) to ensure that parents of maintains, and implements procedural information about where an children with disabilities have the safeguards that meet the requirements of independent educational evaluation opportunity to participate in meetings §§ 300.500–300.529. may be obtained, and the agency criteria described in paragraph (a)(2) of this (b) Definitions of ‘‘consent,’’ applicable for independent educational section. ‘‘evaluation,’’ and ‘‘personally evaluations as set forth in paragraph (e) (2) A meeting does not include identifiable.’’ As used in this part — of this section. informal or unscheduled conversations (1) Consent means that — (3) For the purposes of this part— (i) The parent has been fully informed involving public agency personnel and (i) Independent educational of all information relevant to the activity conversations on issues such as teaching evaluation means an evaluation for which consent is sought, in his or methodology, lesson plans, or conducted by a qualified examiner who her native language, or other mode of coordination of service provision if is not employed by the public agency communication; those issues are not addressed in the responsible for the education of the (ii) The parent understands and agrees child’s IEP. A meeting also does not child in question; and in writing to the carrying out of the include preparatory activities that (ii) Public expense means that the activity for which his or her consent is public agency personnel engage in to public agency either pays for the full sought, and the consent describes that develop a proposal or response to a cost of the evaluation or ensures that the activity and lists the records (if any) that parent proposal that will be discussed at evaluation is otherwise provided at no will be released and to whom; and a later meeting. cost to the parent, consistent with (iii)(A) The parent understands that (c) Parent involvement in placement § 300.301. the granting of consent is voluntary on decisions. (1) Each public agency shall (b) Parent right to evaluation at public the part of the parent and may be ensure that the parents of each child expense. (1) A parent has the right to an revoked at anytime. with a disability are members of any independent educational evaluation at (B) If a parent revokes consent, that group that makes decisions on the public expense if the parent disagrees revocation is not retroactive (i.e., it does educational placement of their child. with an evaluation obtained by the not negate an action that has occurred (2) In implementing the requirements public agency. after the consent was given and before of paragraph (c)(1) of this section, the (2) If a parent requests an the consent was revoked). public agency shall use procedures independent educational evaluation at (2) Evaluation means procedures used consistent with the procedures public expense, the public agency must, in accordance with §§ 300.530–300.536 described in § 300.345(a) through (b)(1). without unnecessary delay, either— to determine whether a child has a (3) If neither parent can participate in (i) Initiate a hearing under § 300.507 disability and the nature and extent of a meeting in which a decision is to be to show that its evaluation is the special education and related made relating to the educational appropriate; or services that the child needs; and placement of their child, the public (ii) Ensure that an independent (3) Personally identifiable means that agency shall use other methods to educational evaluation is provided at information includes— ensure their participation, including public expense, unless the agency

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12449 demonstrates in a hearing under educational placement of the child or § 300.504 Procedural safeguards notice. § 300.507 that the evaluation obtained the provision of FAPE to the child; or (a) General. A copy of the procedural by the parent did not meet agency (ii) Refuses to initiate or change the safeguards available to the parents of a criteria. identification, evaluation, or child with a disability must be given to (3) If the public agency initiates a educational placement of the child or the parents, at a minimum— hearing and the final decision is that the the provision of FAPE to the child. (1) Upon initial referral for evaluation; agency’s evaluation is appropriate, the (2) If the notice described under (2) Upon each notification of an IEP parent still has the right to an paragraph (a)(1) of this section relates to meeting; independent educational evaluation, but an action proposed by the public agency (3) Upon reevaluation of the child; not at public expense. that also requires parental consent and (4) If a parent requests an under § 300.505, the agency may give (4) Upon receipt of a request for due independent educational evaluation, the notice at the same time it requests process under § 300.507. public agency may ask for the parent’s parent consent. (b) Contents. The procedural reason why he or she objects to the (b) Content of notice. The notice safeguards notice must include a full public evaluation. However, the required under paragraph (a) of this explanation of all of the procedural explanation by the parent may not be section must include— safeguards available under §§ 300.403, required and the public agency may not (1) A description of the action 300.500–300.529, and 300.560–300.577, unreasonably delay either providing the proposed or refused by the agency; and the State complaint procedures independent educational evaluation at (2) An explanation of why the agency available under §§ 300.660–300.662 public expense or initiating a due proposes or refuses to take the action; relating to— process hearing to defend the public (3) A description of any other options (1) Independent educational evaluation. that the agency considered and the evaluation; (c) Parent-initiated evaluations. If the reasons why those options were (2) Prior written notice; parent obtains an independent rejected; (3) Parental consent; educational evaluation at private (4) A description of each evaluation (4) Access to educational records; expense, the results of the evaluation— procedure, test, record, or report the (5) Opportunity to present complaints (1) Must be considered by the public agency used as a basis for the proposed to initiate due process hearings; (6) The child’s placement during agency, if it meets agency criteria, in or refused action; pendency of due process proceedings; any decision made with respect to the (5) A description of any other factors (7) Procedures for students who are provision of FAPE to the child; and that are relevant to the agency’s subject to placement in an interim (2) May be presented as evidence at a proposal or refusal; (6) A statement that the parents of a alternative educational setting; hearing under this subpart regarding (8) Requirements for unilateral child with a disability have protection that child. placement by parents of children in under the procedural safeguards of this (d) Requests for evaluations by private schools at public expense; part and, if this notice is not an initial hearing officers. If a hearing officer (9) Mediation; referral for evaluation, the means by requests an independent educational (10) Due process hearings, including which a copy of a description of the evaluation as part of a hearing, the cost requirements for disclosure of procedural safeguards can be obtained; of the evaluation must be at public evaluation results and and expense. recommendations; (e) Agency criteria. (1) If an (7) Sources for parents to contact to (11) State-level appeals (if applicable independent educational evaluation is obtain assistance in understanding the in that State); at public expense, the criteria under provisions of this part. (12) Civil actions; which the evaluation is obtained, (c) Notice in understandable (13) Attorneys’ fees; and including the location of the evaluation language. (1) The notice required under (14) The State complaint procedures and the qualifications of the examiner, paragraph (a) of this section must be— under §§ 300.660–300.662, including a must be the same as the criteria that the (i) Written in language description of how to file a complaint public agency uses when it initiates an understandable to the general public; and the timelines under those evaluation, to the extent those criteria and procedures. are consistent with the parent’s right to (ii) Provided in the native language of (c) Notice in understandable an independent educational evaluation. the parent or other mode of language. The notice required under (2) Except for the criteria described in communication used by the parent, paragraph (a) of this section must meet paragraph (e)(1) of this section, a public unless it is clearly not feasible to do so. the requirements of § 300.503(c). (2) If the native language or other agency may not impose conditions or (Authority: 20 U.S.C. 1415(d)) timelines related to obtaining an mode of communication of the parent is independent educational evaluation at not a written language, the public § 300.505 Parental consent. public expense. agency shall take steps to ensure— (a) General. (1) Subject to paragraphs (i) That the notice is translated orally (Authority: 20 U.S.C. 1415(b)(1)) (a)(3), (b) and (c) of this section, or by other means to the parent in his informed parent consent must be § 300.503 Prior notice by the public or her native language or other mode of obtained before— agency; content of notice. communication; (i) Conducting an initial evaluation or (a) Notice. (1) Written notice that (ii) That the parent understands the reevaluation; and meets the requirements of paragraph (b) content of the notice; and (ii) Initial provision of special of this section must be given to the (iii) That there is written evidence education and related services to a child parents of a child with a disability a that the requirements in paragraphs with a disability. reasonable time before the public (c)(2) (i) and (ii) of this section have (2) Consent for initial evaluation may agency— been met. not be construed as consent for initial (i) Proposes to initiate or change the (Authority: 20 U.S.C. 1415(b)(3), (4) and (c), placement described in paragraph identification, evaluation, or 1414(b)(1)) (a)(1)(ii) of this section.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12450 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

(3) Parental consent is not required (ii) Is not used to deny or delay a or 683 of the Act, or an appropriate before— parent’s right to a due process hearing alternative dispute resolution entity; (i) Reviewing existing data as part of under § 300.507, or to deny any other and an evaluation or a reevaluation; or rights afforded under Part B of the Act; (ii) Who would explain the benefits of (ii) Administering a test or other and the mediation process, and encourage evaluation that is administered to all (iii) Is conducted by a qualified and the parents to use the process. children unless, before administration impartial mediator who is trained in (2) A public agency may not deny or of that test or evaluation, consent is effective mediation techniques. delay a parent’s right to a due process required of parents of all children. (2)(i) The State shall maintain a list of hearing under § 300.507 if the parent (b) Refusal. If the parents of a child individuals who are qualified mediators fails to participate in the meeting with a disability refuse consent for and knowledgeable in laws and described in paragraph (d)(1) of this initial evaluation or a reevaluation, the regulations relating to the provision of section. agency may continue to pursue those special education and related services. (Authority: 20 U.S.C. 1415(e)) evaluations by using the due process (ii) If a mediator is not selected on a procedures under §§ 300.507–300.509, random (e.g., a rotation) basis from the § 300.507 Impartial due process hearing; or the mediation procedures under list described in paragraph (b)(2)(i) of parent notice. § 300.506 if appropriate, except to the this section, both parties must be (a) General. (1) A parent or a public extent inconsistent with State law involved in selecting the mediator and agency may initiate a hearing on any of relating to parental consent. agree with the selection of the the matters described in § 300.503(a)(1) (c) Failure to respond to request for individual who will mediate. and (2) (relating to the identification, reevaluation. (1) Informed parental (3) The State shall bear the cost of the evaluation or educational placement of consent need not be obtained for mediation process, including the costs a child with a disability, or the reevaluation if the public agency can of meetings described in paragraph (d) provision of FAPE to the child). demonstrate that it has taken reasonable of this section. (2) When a hearing is initiated under measures to obtain that consent, and the (4) Each session in the mediation paragraph (a)(1) of this section, the child’s parent has failed to respond. process must be scheduled in a timely public agency shall inform the parents (2) To meet the reasonable measures manner and must be held in a location of the availability of mediation requirement in paragraph (c)(1) of this that is convenient to the parties to the described in § 300.506. section, the public agency must use dispute. (3) The public agency shall inform the procedures consistent with those in (5) An agreement reached by the parent of any free or low-cost legal and § 300.345(d). parties to the dispute in the mediation other relevant services available in the (d) Additional State consent process must be set forth in a written area if— requirements. In addition to the parental mediation agreement. (i) The parent requests the consent requirements described in (6) Discussions that occur during the information; or paragraph (a) of this section, a State may mediation process must be confidential (ii) The parent or the agency initiates require parental consent for other and may not be used as evidence in any a hearing under this section. services and activities under this part if subsequent due process hearings or civil (b) Agency responsible for conducting it ensures that each public agency in the proceedings, and the parties to the hearing. The hearing described in State establishes and implements mediation process may be required to paragraph (a) of this section must be effective procedures to ensure that a sign a confidentiality pledge prior to the conducted by the SEA or the public parent’s refusal to consent does not commencement of the process. agency directly responsible for the result in a failure to provide the child (c) Impartiality of mediator. (1) An education of the child, as determined with FAPE. individual who serves as a mediator under State statute, State regulation, or (e) Limitation. A public agency may under this part— a written policy of the SEA. not use a parent’s refusal to consent to (i) May not be an employee of— (c) Parent notice to the public agency. one service or activity under paragraphs (A) Any LEA or any State agency (1) General. The public agency must (a) and (d) of this section to deny the described under § 300.194; or have procedures that require the parent parent or child any other service, (B) An SEA that is providing direct of a child with a disability or the benefit, or activity of the public agency, services to a child who is the subject of attorney representing the child, to except as required by this part. the mediation process; and provide notice (which must remain (Authority: 20 U.S.C. 1415(b)(3); (ii) Must not have a personal or confidential) to the public agency in a 1414(a)(1)(C) and (c)(3)) professional conflict of interest. request for a hearing under paragraph (2) A person who otherwise qualifies (a)(1) of this section. § 300.506 Mediation. as a mediator is not an employee of an (2) Content of parent notice. The (a) General. Each public agency shall LEA or State agency described under notice required in paragraph (c)(1) of ensure that procedures are established § 300.194 solely because he or she is this section must include— and implemented to allow parties to paid by the agency to serve as a (i) The name of the child; disputes involving any matter described mediator. (ii) The address of the residence of the in § 300.503(a)(1) to resolve the disputes (d) Meeting to encourage mediation. child; through a mediation process that, at a (1) A public agency may establish (iii) The name of the school the child minimum, must be available whenever procedures to require parents who elect is attending; a hearing is requested under §§ 300.507 not to use the mediation process to (iv) A description of the nature of the or 300.520–300.528. meet, at a time and location convenient problem of the child relating to the (b) Requirements. The procedures to the parents, with a disinterested proposed or refused initiation or must meet the following requirements: party— change, including facts relating to the (1) The procedures must ensure that (i) Who is under contract with a problem; and the mediation process— parent training and information center (v) A proposed resolution of the (i) Is voluntary on the part of the or community parent resource center in problem to the extent known and parties; the State established under section 682 available to the parents at the time.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12451

(3) Model form to assist parents. Each party’s evaluations that the party findings of fact and decisions to the SEA shall develop a model form to intends to use at the hearing. parties. assist parents in filing a request for due (2) A hearing officer may bar any (c) Findings and decision to advisory process that includes the information party that fails to comply with panel and general public. The SEA, required in paragraphs (c)(1) and (2) of paragraph (b)(1) of this section from after deleting any personally identifiable this section. introducing the relevant evaluation or information, shall— (4) Right to due process hearing. A recommendation at the hearing without (1) Transmit the findings and public agency may not deny or delay a the consent of the other party. decisions referred to in paragraph parent’s right to a due process hearing (c) Parental rights at hearings. (1) (b)(2)(vi) of this section to the State for failure to provide the notice required Parents involved in hearings must be advisory panel established under in paragraphs (c)(1) and (2) of this given the right to— § 300.650; and section. (i) Have the child who is the subject (2) Make those findings and decisions of the hearing present; and available to the public. (Authority: 20 U.S.C. 1415(b)(5), (b)(6), (b)(7), (d) Finality of review decision. The (b)(8), (e)(1) and (f)(1)) (ii) Open the hearing to the public. (2) The record of the hearing and the decision made by the reviewing official § 300.508 Impartial hearing officer. findings of fact and decisions described is final unless a party brings a civil (a) A hearing may not be conducted— in paragraphs (a)(4) and (a)(5) of this action under § 300.512. (1) By a person who is an employee section must be provided at no cost to (Authority: 20 U.S.C. 1415(g); H. R. Rep. No. of the State agency or the LEA that is parents. 94–664, at p. 49 (1975)) involved in the education or care of the (d) Findings and decision to advisory § 300.511 Timelines and convenience of child; or panel and general public. The public hearings and reviews. (2) By any person having a personal agency, after deleting any personally (a) The public agency shall ensure or professional interest that would identifiable information, shall — that not later than 45 days after the conflict with his or her objectivity in the (1) Transmit the findings and hearing. receipt of a request for a hearing— decisions referred to in paragraph (a)(5) (1) A final decision is reached in the (b) A person who otherwise qualifies of this section to the State advisory to conduct a hearing under paragraph hearing; and panel established under § 300.650; and (2) A copy of the decision is mailed (a) of this section is not an employee of (2) Make those findings and decisions to each of the parties. the agency solely because he or she is available to the public. (b) The SEA shall ensure that not later paid by the agency to serve as a hearing (Authority: 20 U.S.C. 1415(f)(2) and (h)) than 30 days after the receipt of a officer. request for a review— (c) Each public agency shall keep a § 300.510 Finality of decision; appeal; (1) A final decision is reached in the list of the persons who serve as hearing impartial review. review; and officers. The list must include a (a) Finality of decision. A decision (2) A copy of the decision is mailed statement of the qualifications of each of made in a hearing conducted pursuant to each of the parties. those persons. to §§ 300.507 or 300.520–300.528 is (c) A hearing or reviewing officer may (Authority: 20 U.S.C. 1415(f)(3)) final, except that any party involved in grant specific extensions of time beyond the hearing may appeal the decision the periods set out in paragraphs (a) and § 300.509 Hearing rights. under the provisions of paragraph (b) of (b) of this section at the request of either (a) General. Any party to a hearing this section and § 300.512. party. conducted pursuant to §§ 300.507 or (Authority: 20 U.S.C. 1415(i)(1)(A)) (d) Each hearing and each review 300.520–300.528, or an appeal involving oral arguments must be conducted pursuant to § 300.510, has (b) Appeal of decisions; impartial conducted at a time and place that is the right to— review. (1) General. If the hearing reasonably convenient to the parents (1) Be accompanied and advised by required by § 300.507 is conducted by a and child involved. public agency other than the SEA, any counsel and by individuals with special (Authority: 20 U.S.C. 1415) knowledge or training with respect to party aggrieved by the findings and the problems of children with decision in the hearing may appeal to § 300.512 Civil action. disabilities; the SEA. (a) General. Any party aggrieved by (2) Present evidence and confront, (2) SEA responsibility for review. If the findings and decision made under cross-examine, and compel the there is an appeal, the SEA shall §§ 300.507 or 300.520–300.528 who attendance of witnesses; conduct an impartial review of the does not have the right to an appeal (3) Prohibit the introduction of any hearing. The official conducting the under § 300.510(b), and any party evidence at the hearing that has not review shall— aggrieved by the findings and decision been disclosed to that party at least 5 (i) Examine the entire hearing record; under § 300.510(b), has the right to bring business days before the hearing; (ii) Ensure that the procedures at the a civil action with respect to the (4) Obtain a written, or, at the option hearing were consistent with the complaint presented pursuant to of the parents, electronic, verbatim requirements of due process; § 300.507. The action may be brought in record of the hearing; and (iii) Seek additional evidence if any State court of competent (5) Obtain written, or, at the option of necessary. If a hearing is held to receive jurisdiction or in a district court of the the parents, electronic findings of fact additional evidence, the rights in United States without regard to the and decisions. § 300.509 apply; amount in controversy. (b) Additional disclosure of (iv) Afford the parties an opportunity (b) Additional requirements. In any information. (1) At least 5 business days for oral or written argument, or both, at action brought under paragraph (a) of prior to a hearing conducted pursuant to the discretion of the reviewing official; this section, the court— § 300.507(a), each party shall disclose to (v) Make an independent decision on (1) Shall receive the records of the all other parties all evaluations completion of the review; and administrative proceedings; completed by that date and (vi) Give a copy of the written, or, at (2) Shall hear additional evidence at recommendations based on the offering the option of the parents, electronic the request of a party; and

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12452 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

(3) Basing its decision on the time more than 10 days before the regarding a complaint under § 300.507, preponderance of the evidence, shall proceeding begins; unless the State or local agency and the grant the relief that the court determines (B) The offer is not accepted within 10 parents of the child agree otherwise, the to be appropriate. days; and child involved in the complaint must (c) Jurisdiction of district courts. The (C) The court or administrative remain in his or her current educational district courts of the United States have hearing officer finds that the relief placement. jurisdiction of actions brought under finally obtained by the parents is not (b) If the complaint involves an section 615 of the Act without regard to more favorable to the parents than the application for initial admission to the amount in controversy. offer of settlement. public school, the child, with the (d) Rule of construction. Nothing in (ii) Attorneys’ fees may not be consent of the parents, must be placed this part restricts or limits the rights, awarded relating to any meeting of the in the public school until the procedures, and remedies available IEP team unless the meeting is completion of all the proceedings. under the Constitution, the Americans convened as a result of an (c) If the decision of a hearing officer with Disabilities Act of 1990, title V of administrative proceeding or judicial in a due process hearing conducted by the Rehabilitation Act of 1973, or other action, or at the discretion of the State, the SEA or a State review official in an Federal laws protecting the rights of for a mediation described in § 300.506 administrative appeal agrees with the children with disabilities, except that that is conducted prior to the filing of child’s parents that a change of before the filing of a civil action under a request for due process under placement is appropriate, that these laws seeking relief that is also §§ 300.507 or 300.520–300.528. placement must be treated as an available under section 615 of the Act, (3) Exception to prohibition on agreement between the State or local the procedures under §§ 300.507 and attorneys’ fees and related costs. agency and the parents for purposes of 300.510 must be exhausted to the same Notwithstanding paragraph (c)(2) of this paragraph (a) of this section. extent as would be required had the section, an award of attorneys’ fees and (Authority: 20 U.S.C. 1415(j)) action been brought under section 615 related costs may be made to a parent of the Act. who is the prevailing party and who § 300.515 Surrogate parents. was substantially justified in rejecting (Authority: 20 U.S.C. 1415(i)(2), (i)(3)(A), and (a) General. Each public agency shall 1415(l)) the settlement offer. ensure that the rights of a child are (4) Reduction of amount of attorneys’ protected if— § 300.513 Attorneys' fees. fees. Except as provided in paragraph (1) No parent (as defined in § 300.20) (a) In any action or proceeding (c)(5) of this section, the court reduces, can be identified; brought under section 615 of the Act, accordingly, the amount of the (2) The public agency, after the court, in its discretion, may award attorneys’ fees awarded under section reasonable efforts, cannot discover the reasonable attorneys’ fees as part of the 615 of the Act, if the court finds that— whereabouts of a parent; or costs to the parents of a child with a (i) The parent, during the course of (3) The child is a ward of the State disability who is the prevailing party. the action or proceeding, unreasonably (b)(1) Funds under Part B of the Act protracted the final resolution of the under the laws of that State. may not be used to pay attorneys’ fees controversy; (b) Duty of public agency. The duty of or costs of a party related to an action (ii) The amount of the attorneys’ fees a public agency under paragraph (a) of or proceeding under section 615 of the otherwise authorized to be awarded this section includes the assignment of Act and subpart E of this part. unreasonably exceeds the hourly rate an individual to act as a surrogate for (2) Paragraph (b)(1) of this section prevailing in the community for similar the parents. This must include a does not preclude a public agency from services by attorneys of reasonably method— using funds under Part B of the Act for comparable skill, reputation, and (1) For determining whether a child conducting an action or proceeding experience; needs a surrogate parent; and under section 615 of the Act. (iii) The time spent and legal services (2) For assigning a surrogate parent to (c) A court awards reasonable furnished were excessive considering the child. attorney’s fees under section 615(i)(3) of the nature of the action or proceeding; (c) Criteria for selection of surrogates. the Act consistent with the following: or (1) The public agency may select a (1) Determination of amount of (iv) The attorney representing the surrogate parent in any way permitted attorneys’ fees. Fees awarded under parent did not provide to the school under State law. section 615(i)(3) of the Act must be district the appropriate information in (2) Except as provided in paragraph based on rates prevailing in the the due process complaint in (c)(3) of this section, public agencies community in which the action or accordance with § 300.507(c). shall ensure that a person selected as a proceeding arose for the kind and (5) Exception to reduction in amount surrogate— quality of services furnished. No bonus of attorneys’ fees. The provisions of (i) Is not an employee of the SEA, the or multiplier may be used in calculating paragraph (c)(4) of this section do not LEA, or any other agency that is the fees awarded under this subsection. apply in any action or proceeding if the involved in the education or care of the (2) Prohibition of attorneys’ fees and court finds that the State or local agency child; related costs for certain services. (i) unreasonably protracted the final (ii) Has no interest that conflicts with Attorneys’ fees may not be awarded and resolution of the action or proceeding or the interest of the child he or she related costs may not be reimbursed in there was a violation of section 615 of represents; and any action or proceeding under section the Act. (iii) Has knowledge and skills that 615 of the Act for services performed (Authority: 20 U.S.C. 1415(i)(3)(B)–(G)) ensure adequate representation of the subsequent to the time of a written offer child. of settlement to a parent if— § 300.514 Child's status during (3) A public agency may select as a (A) The offer is made within the time proceedings. surrogate a person who is an employee prescribed by Rule 68 of the Federal (a) Except as provided in § 300.526, of a nonpublic agency that only Rules of Civil Procedure or, in the case during the pendency of any provides non-educational care for the of an administrative proceeding, at any administrative or judicial proceeding child and who meets the standards in

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12453 paragraphs (c)(2)(ii) and (iii) of this §§ 300.520–300.529, a change of (ii) If the child already has a section. placement occurs if— behavioral intervention plan, the IEP (d) Non-employee requirement; (a) The removal is for more than 10 team shall meet to review the plan and compensation. A person who otherwise consecutive school days; or its implementation, and, modify the qualifies to be a surrogate parent under (b) The child is subjected to a series plan and its implementation as paragraph (c) of this section is not an of removals that constitute a pattern necessary, to address the behavior. employee of the agency solely because because they cumulate to more than 10 (2) As soon as practicable after he or she is paid by the agency to serve school days in a school year, and developing the plan described in as a surrogate parent. because of factors such as the length of paragraph (b)(1)(i) of this section, and (e) Responsibilities. The surrogate each removal, the total amount of time completing the assessments required by parent may represent the child in all the child is removed, and the proximity the plan, the LEA shall convene an IEP matters relating to— of the removals to one another. meeting to develop appropriate (1) The identification, evaluation, and (Authority: 20 U.S.C. 1415(k)) behavioral interventions to address that educational placement of the child; and behavior and shall implement those (2) The provision of FAPE to the § 300.520 Authority of school personnel. interventions. child. (a) School personnel may order— (c)(1) If subsequently, a child with a (Authority: 20 U.S.C. 1415(b)(2)) (1)(i) To the extent removal would be disability who has a behavioral intervention plan and who has been § 300.516 [Reserved]. applied to children without disabilities, the removal of a child with a disability removed from the child’s current § 300.517 Transfer of parental rights at age from the child’s current placement for educational placement for more than 10 of majority. not more than 10 consecutive school school days in a school year is subjected (a) General. A State may provide that, days for any violation of school rules, to a removal that does not constitute a when a student with a disability reaches and additional removals of not more change of placement under § 300.519, the age of majority under State law that than 10 consecutive school days in that the IEP team members shall review the applies to all students (except for a same school year for separate incidents behavioral intervention plan and its student with a disability who has been of misconduct (as long as those implementation to determine if determined to be incompetent under removals do not constitute a change of modifications are necessary. State law)— placement under § 300.519(b)); (2) If one or more of the team (1)(i) The public agency shall provide (ii) After a child with a disability has members believe that modifications are any notice required by this part to both been removed from his or her current needed, the team shall meet to modify the individual and the parents; and placement for more than 10 school days the plan and its implementation, to the (ii) All other rights accorded to in the same school year, during any extent the team determines necessary. (d) For purposes of this section, the parents under Part B of the Act transfer subsequent days of removal the public following definitions apply: to the student; and agency must provide services to the (2) All rights accorded to parents (1) Controlled substance means a drug extent required under § 300.121(d); and or other substance identified under under Part B of the Act transfer to (2) A change in placement of a child students who are incarcerated in an schedules I, II, III, IV, or V in section with a disability to an appropriate 202(c) of the Controlled Substances Act adult or juvenile, State or local interim alternative educational setting correctional institution. (21 U.S.C. 812(c)). for the same amount of time that a child (2) Illegal drug— (3) Whenever a State transfers rights without a disability would be subject to under this part pursuant to paragraph (i) Means a controlled substance; but discipline, but for not more than 45 (ii) Does not include a substance that (a)(1) or (a)(2) of this section, the agency days, if— is legally possessed or used under the shall notify the individual and the (i) The child carries a weapon to supervision of a licensed health-care parents of the transfer of rights. school or to a school function under the professional or that is legally possessed (b) Special rule. If, under State law, a jurisdiction of a State or a local State has a mechanism to determine that or used under any other authority under educational agency; or that Act or under any other provision of a student with a disability, who has (ii) The child knowingly possesses or reached the age of majority under State Federal law. uses illegal drugs or sells or solicits the (3) Weapon has the meaning given the law that applies to all children and has sale of a controlled substance while at term ‘‘dangerous weapon’’ under not been determined incompetent under school or a school function under the paragraph (2) of the first subsection (g) State law, does not have the ability to jurisdiction of a State or local of section 930 of title 18, United States provide informed consent with respect educational agency. Code. to his or her educational program, the (b)(1) Either before or not later than 10 (Authority: 20 U.S.C. 1415(k)(1), (10)) State shall establish procedures for business days after either first removing appointing the parent, or, if the parent the child for more than 10 school days § 300.521 Authority of hearing officer. is not available another appropriate in a school year or commencing a A hearing officer under section 615 of individual, to represent the educational removal that constitutes a change of the Act may order a change in the interests of the student throughout the placement under § 300.519, including placement of a child with a disability to student’s eligibility under Part B of the the action described in paragraph (a)(2) an appropriate interim alternative Act. of this section— educational setting for not more than 45 (Authority: 20 U.S.C. 1415(m)) (i) If the LEA did not conduct a days if the hearing officer, in an Discipline Procedures functional behavioral assessment and expedited due process hearing— implement a behavioral intervention (a) Determines that the public agency § 300.519 Change of placement for plan for the child before the behavior has demonstrated by substantial disciplinary removals. that resulted in the removal described in evidence that maintaining the current For purposes of removals of a child paragraph (a) of this section, the agency placement of the child is substantially with a disability from the child’s current shall convene an IEP meeting to develop likely to result in injury to the child or educational placement under an assessment plan. to others;

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12454 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

(b) Considers the appropriateness of team and other qualified personnel in a would be applied to children without the child’s current placement; meeting. disabilities, except as provided in (c) Considers whether the public (c) Conduct of review. In carrying out § 300.121(d). agency has made reasonable efforts to a review described in paragraph (a) of (b) Additional requirement. If the minimize the risk of harm in the child’s this section, the IEP team and other public agency initiates disciplinary current placement, including the use of qualified personnel may determine that procedures applicable to all children, supplementary aids and services; and the behavior of the child was not a the agency shall ensure that the special (d) Determines that the interim manifestation of the child’s disability education and disciplinary records of alternative educational setting that is only if the IEP team and other qualified the child with a disability are proposed by school personnel who have personnel— transmitted for consideration by the consulted with the child’s special (1) First consider, in terms of the person or persons making the final education teacher, meets the behavior subject to disciplinary action, determination regarding the disciplinary requirements of § 300.522(b). all relevant information, including — action. (e) As used in this section, the term (i) Evaluation and diagnostic results, (c) Child’s status during due process substantial evidence means beyond a including the results or other relevant proceedings. Except as provided in preponderance of the evidence. information supplied by the parents of § 300.526, § 300.514 applies if a parent (Authority: 20 U.S.C. 1415(k)(2), (10)) the child; requests a hearing to challenge a (ii) Observations of the child; and determination, made through the review § 300.522 Determination of setting. (iii) The child’s IEP and placement; described in § 300.523, that the behavior (a) General. The interim alternative and of the child was not a manifestation of educational setting referred to in (2) Then determine that— the child’s disability. § 300.520(a)(2) must be determined by (i) In relationship to the behavior the IEP team. subject to disciplinary action, the (Authority: 20 U.S.C. 1415(k)(5)) (b) Additional requirements. Any child’s IEP and placement were § 300.525 Parent appeal. appropriate and the special education interim alternative educational setting (a) General. (1) If the child’s parent services, supplementary aids and in which a child is placed under disagrees with a determination that the services, and behavior intervention §§ 300.520(a)(2) or 300.521 must— child’s behavior was not a manifestation (1) Be selected so as to enable the strategies were provided consistent with of the child’s disability or with any child to continue to progress in the the child’s IEP and placement; decision regarding placement under general curriculum, although in another (ii) The child’s disability did not §§ 300.520–300.528, the parent may setting, and to continue to receive those impair the ability of the child to request a hearing. services and modifications, including understand the impact and (2) The State or local educational those described in the child’s current consequences of the behavior subject to agency shall arrange for an expedited IEP, that will enable the child to meet disciplinary action; and hearing in any case described in the goals set out in that IEP; and (iii) The child’s disability did not (2) Include services and modifications impair the ability of the child to control paragraph (a)(1) of this section if a to address the behavior described in the behavior subject to disciplinary hearing is requested by a parent. §§ 300.520(a)(2) or 300.521, that are action. (b) Review of decision. (1) In designed to prevent the behavior from (d) Decision. If the IEP team and other reviewing a decision with respect to the recurring. qualified personnel determine that any manifestation determination, the of the standards in paragraph (c)(2) of hearing officer shall determine whether (Authority: 20 U.S.C. 1415(k)(3)) this section were not met, the behavior the public agency has demonstrated that § 300.523 Manifestation determination must be considered a manifestation of the child’s behavior was not a review. the child’s disability. manifestation of the child’s disability (a) General. If an action is (e) Meeting. The review described in consistent with the requirements of contemplated regarding behavior paragraph (a) of this section may be § 300.523(d). described in §§ 300.520(a)(2) or 300.521, conducted at the same IEP meeting that (2) In reviewing a decision under or involving a removal that constitutes is convened under § 300.520(b). § 300.520(a)(2) to place the child in an a change of placement under § 300.519 (f) Deficiencies in IEP or placement. If, interim alternative educational setting, for a child with a disability who has in the review in paragraphs (b) and (c) the hearing officer shall apply the engaged in other behavior that violated of this section, a public agency standards in § 300.521. any rule or code of conduct of the LEA identifies deficiencies in the child’s IEP (Authority: 20 U.S.C. 1415(k)(6)) that applies to all children— or placement or in their (1) Not later than the date on which implementation, it must take immediate § 300.526 Placement during appeals. the decision to take that action is made, steps to remedy those deficiencies. (a) General. If a parent requests a the parents must be notified of that (Authority: 20 U.S.C. 1415(k)(4)) hearing or an appeal regarding a decision and provided the procedural disciplinary action described in safeguards notice described in § 300.524 Determination that behavior was § 300.520(a)(2) or 300.521 to challenge § 300.504; and not manifestation of disability. the interim alternative educational (2) Immediately, if possible, but in no (a) General. If the result of the review setting or the manifestation case later than 10 school days after the described in § 300.523 is a determination, the child must remain in date on which the decision to take that determination, consistent with the interim alternative educational action is made, a review must be § 300.523(d), that the behavior of the setting pending the decision of the conducted of the relationship between child with a disability was not a hearing officer or until the expiration of the child’s disability and the behavior manifestation of the child’s disability, the time period provided for in subject to the disciplinary action. the relevant disciplinary procedures § 300.520(a)(2) or 300.521, whichever (b) Individuals to carry out review. A applicable to children without occurs first, unless the parent and the review described in paragraph (a) of this disabilities may be applied to the child State agency or local educational agency section must be conducted by the IEP in the same manner in which they agree otherwise.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12455

(b) Current placement. If a child is (2) The behavior or performance of (Authority: 20 U.S.C. 1415(k)(8)) placed in an interim alternative the child demonstrates the need for § 300.528 Expedited due process hearings. educational setting pursuant to these services, in accordance with § 300.520(a)(2) or 300.521 and school § 300.7; (a) Expedited due process hearings personnel propose to change the child’s (3) The parent of the child has under §§ 300.521–300.526 must— (1) Meet the requirements of placement after expiration of the interim requested an evaluation of the child § 300.509, except that a State may alternative placement, during the pursuant to §§ 300.530–300.536; or provide that the time periods identified pendency of any proceeding to (4) The teacher of the child, or other in §§ 300.509(a)(3) and § 300.509(b) for challenge the proposed change in personnel of the local educational purposes of expedited due process placement the child must remain in the agency, has expressed concern about the hearings under §§ 300.521–300.526 are current placement (the child’s behavior or performance of the child to the director of special education of the not less than two business days; and placement prior to the interim (2) Be conducted by a due process agency or to other personnel in alternative educational setting), except hearing officer who satisfies the accordance with the agency’s as provided in paragraph (c) of this requirements of § 300.508. section. established child find or special (b)(1) Each State shall establish a (c) Expedited hearing. (1) If school education referral system. timeline for expedited due process (c) Exception. A public agency would personnel maintain that it is dangerous hearings that results in a written not be deemed to have knowledge under for the child to be in the current decision being mailed to the parties paragraph (b) of this section if, as a placement (placement prior to removal within 45 days of the public agency’s result of receiving the information to the interim alternative education receipt of the request for the hearing, specified in that paragraph, the setting) during the pendency of the due without exceptions or extensions. process proceedings, the LEA may agency— (2) The timeline established under (1) Either— request an expedited due process paragraph (b)(1) of this section must be hearing. (i) Conducted an evaluation under §§ 300.530–300.536, and determined the same for hearings requested by (2) In determining whether the child that the child was not a child with a parents or public agencies. may be placed in the alternative (c) A State may establish different disability under this part; or educational setting or in another (ii) Determined that an evaluation was procedural rules for expedited hearings appropriate placement ordered by the not necessary; and under §§ 300.521–300.526 than it has hearing officer, the hearing officer shall (2) Provided notice to the child’s established for due process hearings apply the standards in § 300.521. parents of its determination under under § 300.507. (d) The decisions on expedited due (3) A placement ordered pursuant to paragraph (c)(1) of this section, process hearings are appealable paragraph (c)(2) of this section may not consistent with § 300.503. be longer than 45 days. (d) Conditions that apply if no basis consistent with § 300.510. (4) The procedure in paragraph (c) of of knowledge. (1) General. If an LEA (Authority: 20 U.S.C. 1415(k)(2), (6), (7)) this section may be repeated, as does not have knowledge that a child is necessary. § 300.529 Referral to and action by law a child with a disability (in accordance enforcement and judicial authorities. with paragraphs (b) and (c) of this (Authority: 20 U.S.C. 1415(k)(7)) (a) Nothing in this part prohibits an section) prior to taking disciplinary agency from reporting a crime § 300.527 Protections for children not yet measures against the child, the child committed by a child with a disability eligible for special education and related may be subjected to the same services. to appropriate authorities or to prevent disciplinary measures as measures State law enforcement and judicial (a) General. A child who has not been applied to children without disabilities authorities from exercising their determined to be eligible for special who engaged in comparable behaviors responsibilities with regard to the education and related services under consistent with paragraph (d)(2) of this application of Federal and State law to this part and who has engaged in section. behavior that violated any rule or code (2) Limitations. (i) If a request is made crimes committed by a child with a of conduct of the local educational for an evaluation of a child during the disability. (b)(1) An agency reporting a crime agency, including any behavior time period in which the child is committed by a child with a disability described in §§ 300.520 or 300.521, may subjected to disciplinary measures shall ensure that copies of the special assert any of the protections provided under § 300.520 or 300.521, the education and disciplinary records of for in this part if the LEA had evaluation must be conducted in an the child are transmitted for knowledge (as determined in expedited manner. accordance with paragraph (b) of this (ii) Until the evaluation is completed, consideration by the appropriate section) that the child was a child with the child remains in the educational authorities to whom it reports the crime. (2) An agency reporting a crime under a disability before the behavior that placement determined by school this section may transmit copies of the precipitated the disciplinary action authorities, which can include child’s special education and occurred. suspension or expulsion without disciplinary records only to the extent (b) Basis of knowledge. An LEA must educational services. that the transmission is permitted by the be deemed to have knowledge that a (iii) If the child is determined to be a Family Educational Rights and Privacy child is a child with a disability if— child with a disability, taking into Act. (1) The parent of the child has consideration information from the expressed concern in writing (or orally evaluation conducted by the agency and (Authority: 20 U.S.C. 1415(k)(9)) if the parent does not know how to information provided by the parents, the Procedures for Evaluation and write or has a disability that prevents a agency shall provide special education Determination of Eligibility written statement) to personnel of the and related services in accordance with appropriate educational agency that the the provisions of this part, including the § 300.530 General. child is in need of special education and requirements of §§ 300.520–300.529 and Each SEA shall ensure that each related services; section 612(a)(1)(A) of the Act. public agency establishes and

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12456 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations implements procedures that meet the assess specific areas of educational need what additional data, if any, are needed requirements of §§ 300.531–300.536. and not merely those that are designed to determine— (Authority: 20 U.S.C. 1414(b)(3); 1412(a)(7)) to provide a single general intelligence (i) Whether the child has a particular quotient. category of disability, as described in § 300.531 Initial evaluation. (e) Tests are selected and § 300.7, or, in case of a reevaluation of Each public agency shall conduct a administered so as best to ensure that if a child, whether the child continues to full and individual initial evaluation, in a test is administered to a child with have such a disability; accordance with §§ 300.532 and impaired sensory, manual, or speaking (ii) The present levels of performance 300.533, before the initial provision of skills, the test results accurately reflect and educational needs of the child; special education and related services to the child’s aptitude or achievement (iii) Whether the child needs special a child with a disability under Part B of level or whatever other factors the test education and related services, or in the the Act. purports to measure, rather than case of a reevaluation of a child, whether the child continues to need (Authority: 20 U.S.C. 1414(a)(1)) reflecting the child’s impaired sensory, manual, or speaking skills (unless those special education and related services; § 300.532 Evaluation procedures. skills are the factors that the test and Each public agency shall ensure, at a purports to measure). (iv) Whether any additions or minimum, that the following (f) No single procedure is used as the modifications to the special education requirements are met: sole criterion for determining whether a and related services are needed to (a)(1) Tests and other evaluation child is a child with a disability and for enable the child to meet the measurable materials used to assess a child under determining an appropriate educational annual goals set out in the IEP of the Part B of the Act— program for the child. child and to participate, as appropriate, (i) Are selected and administered so (g) The child is assessed in all areas in the general curriculum. as not to be discriminatory on a racial related to the suspected disability, (b) Conduct of review. The group or cultural basis; and including, if appropriate, health, vision, described in paragraph (a) of this (ii) Are provided and administered in hearing, social and emotional status, section may conduct its review without the child’s native language or other general intelligence, academic a meeting. mode of communication, unless it is performance, communicative status, and (c) Need for additional data. The clearly not feasible to do so; and motor abilities. public agency shall administer tests and (2) Materials and procedures used to (h) In evaluating each child with a other evaluation materials as may be assess a child with limited English disability under §§ 300.531–300.536, the needed to produce the data identified proficiency are selected and evaluation is sufficiently comprehensive under paragraph (a) of this section. administered to ensure that they to identify all of the child’s special (d) Requirements if additional data measure the extent to which the child education and related services needs, are not needed. (1) If the determination has a disability and needs special whether or not commonly linked to the under paragraph (a) of this section is education, rather than measuring the disability category in which the child that no additional data are needed to child’s English language skills. has been classified. determine whether the child continues (b) A variety of assessment tools and (i) The public agency uses technically to be a child with a disability, the public strategies are used to gather relevant sound instruments that may assess the agency shall notify the child’s parents— functional and developmental relative contribution of cognitive and (i) Of that determination and the information about the child, including behavioral factors, in addition to reasons for it; and information provided by the parent, and physical or developmental factors. (ii) Of the right of the parents to information related to enabling the child (j) The public agency uses assessment request an assessment to determine to be involved in and progress in the tools and strategies that provide relevant whether, for purposes of services under general curriculum (or for a preschool information that directly assists persons this part, the child continues to be a child, to participate in appropriate in determining the educational needs of child with a disability. activities), that may assist in the child. (2) The public agency is not required determining— to conduct the assessment described in (Authority: 20 U.S.C. 1412(a)(6)(B), paragraph (d)(1)(ii) of this section unless (1) Whether the child is a child with 1414(b)(2) and (3)) a disability under § 300.7; and requested to do so by the child’s (2) The content of the child’s IEP. § 300.533 Determination of needed parents. (c)(1) Any standardized tests that are evaluation data. (Authority: 20 U.S.C. 1414(c)(1), (2) and (4)) given to a child— (a) Review of existing evaluation data. (i) Have been validated for the As part of an initial evaluation (if § 300.534 Determination of eligibility specific purpose for which they are appropriate) and as part of any (a) Upon completing the used; and reevaluation under Part B of the Act, a administration of tests and other (ii) Are administered by trained and group that includes the individuals evaluation materials— knowledgeable personnel in accordance described in § 300.344, and other (1) A group of qualified professionals with any instructions provided by the qualified professionals, as appropriate, and the parent of the child must producer of the tests. shall— determine whether the child is a child (2) If an assessment is not conducted (1) Review existing evaluation data on with a disability, as defined in § 300.7; under standard conditions, a the child, including— and description of the extent to which it (i) Evaluations and information (2) The public agency must provide a varied from standard conditions (e.g., provided by the parents of the child; copy of the evaluation report and the the qualifications of the person (ii) Current classroom-based documentation of determination of administering the test, or the method of assessments and observations; and eligibility to the parent. test administration) must be included in (iii) Observations by teachers and (b) A child may not be determined to the evaluation report. related services providers; and be eligible under this part if— (d) Tests and other evaluation (2) On the basis of that review, and (1) The determinant factor for that materials include those tailored to input from the child’s parents, identify eligibility determination is—

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12457

(i) Lack of instruction in reading or qualified to teach a child of his or her (2) The basis for making the math; or age; or determination; (ii) Limited English proficiency; and (3) For a child of less than school age, (3) The relevant behavior noted (2) The child does not otherwise meet an individual qualified by the SEA to during the observation of the child; the eligibility criteria under § 300.7(a). teach a child of his or her age; and (4) The relationship of that behavior (c)(1) A public agency must evaluate (b) At least one person qualified to to the child’s academic functioning; a child with a disability in accordance conduct individual diagnostic (5) The educationally relevant with §§ 300.532 and 300.533 before examinations of children, such as a medical findings, if any; determining that the child is no longer school psychologist, speech-language (6) Whether there is a severe a child with a disability. pathologist, or remedial reading teacher. discrepancy between achievement and (2) The evaluation described in (Authority: Sec. 5(b), Pub. L. 94–142) ability that is not correctable without paragraph (c)(1) of this section is not special education and related services; required before the termination of a § 300.541 Criteria for determining the and student’s eligibility under Part B of the existence of a specific learning disability. (7) The determination of the team Act due to graduation with a regular (a) A team may determine that a child concerning the effects of environmental, high school diploma, or exceeding the has a specific learning disability if— cultural, or economic disadvantage. age eligibility for FAPE under State law. (1) The child does not achieve (b) Each team member shall certify in (Authority: 20 U.S.C. 1414(b)(4) and (5), commensurate with his or her age and writing whether the report reflects his or (c)(5)) ability levels in one or more of the areas her conclusion. If it does not reflect his listed in paragraph (a)(2) of this section, or her conclusion, the team member § 300.535 Procedures for determining eligibility and placement. if provided with learning experiences must submit a separate statement appropriate for the child’s age and presenting his or her conclusions. (a) In interpreting evaluation data for ability levels; and (Authority: Sec. 5(b), Pub. L. 94–142) the purpose of determining if a child is (2) The team finds that a child has a a child with a disability under § 300.7, severe discrepancy between Least Restrictive Environment (LRE) and the educational needs of the child, achievement and intellectual ability in § 300.550 General LRE requirements. each public agency shall— one or more of the following areas: (1) Draw upon information from a (i) Oral expression. (a) Except as provided in § 300.311(b) variety of sources, including aptitude (ii) Listening comprehension. and (c), a State shall demonstrate to the and achievement tests, parent input, (iii) Written expression. satisfaction of the Secretary that the teacher recommendations, physical (iv) Basic reading skill. State has in effect policies and condition, social or cultural (v) Reading comprehension. procedures to ensure that it meets the background, and adaptive behavior; and (vi) Mathematics calculation. requirements of §§ 300.550–300.556. (2) Ensure that information obtained (vii) Mathematics reasoning. (b) Each public agency shall ensure— from all of these sources is documented (b) The team may not identify a child (1) That to the maximum extent and carefully considered. as having a specific learning disability appropriate, children with disabilities, (b) If a determination is made that a if the severe discrepancy between including children in public or private child has a disability and needs special ability and achievement is primarily the institutions or other care facilities, are education and related services, an IEP result of— educated with children who are must be developed for the child in (1) A visual, hearing, or motor nondisabled; and accordance with §§ 300.340–300.350. impairment; (2) That special classes, separate (Authority: 20 U.S.C. 1412(a)(6), 1414(b)(4)) (2) Mental retardation; schooling or other removal of children (3) Emotional disturbance; or with disabilities from the regular § 300.536 Reevaluation. (4) Environmental, cultural or educational environment occurs only if Each public agency shall ensure— economic disadvantage. the nature or severity of the disability is (a) That the IEP of each child with a (Authority: Sec. 5(b), Pub. L. 94–142) such that education in regular classes disability is reviewed in accordance with the use of supplementary aids and with §§ 300.340–300.350; and § 300.542 Observation. services cannot be achieved (b) That a reevaluation of each child, (a) At least one team member other satisfactorily. in accordance with §§ 300.532–300.535, than the child’s regular teacher shall (Authority: 20 U.S.C. 1412(a)(5)) is conducted if conditions warrant a observe the child’s academic reevaluation, or if the child’s parent or performance in the regular classroom § 300.551 Continuum of alternative teacher requests a reevaluation, but at setting. placements. least once every three years. (b) In the case of a child of less than (a) Each public agency shall ensure (Authority: 20 U.S.C. 1414(a)(2)) school age or out of school, a team that a continuum of alternative member shall observe the child in an Additional Procedures for Evaluating placements is available to meet the environment appropriate for a child of Children With Specific Learning needs of children with disabilities for that age. Disabilities special education and related services. (Authority: Sec. 5(b), Pub. L. 94–142) (b) The continuum required in § 300.540 Additional team members. paragraph (a) of this section must— The determination of whether a child § 300.543 Written report. (1) Include the alternative placements suspected of having a specific learning (a) For a child suspected of having a listed in the definition of special disability is a child with a disability as specific learning disability, the education under § 300.26 (instruction in defined in § 300.7, must be made by the documentation of the team’s regular classes, special classes, special child’s parents and a team of qualified determination of eligibility, as required schools, home instruction, and professionals which must include— by § 300.534(a)(2), must include a instruction in hospitals and (a)(1) The child’s regular teacher; or statement of— institutions); and (2) If the child does not have a regular (1) Whether the child has a specific (2) Make provision for supplementary teacher, a regular classroom teacher learning disability; services (such as resource room or

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12458 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations itinerant instruction) to be provided in § 300.555 Technical assistance and (3) A summary of the policies and conjunction with regular class training activities. procedures that participating agencies placement. Each SEA shall carry out activities to must follow regarding storage, (Authority: 20 U.S.C. 1412(a)(5)) ensure that teachers and administrators disclosure to third parties, retention, in all public agencies— and destruction of personally § 300.552 Placements. (a) Are fully informed about their identifiable information; and In determining the educational responsibilities for implementing (4) A description of all of the rights of placement of a child with a disability, § 300.550; and parents and children regarding this including a preschool child with a (b) Are provided with technical information, including the rights under disability, each public agency shall assistance and training necessary to the Family Educational Rights and ensure that— assist them in this effort. Privacy Act of 1974 and implementing regulations in 34 CFR part 99. (a) The placement decision— (Authority: 20 U.S.C. 1412(a)(5)) (b) Before any major identification, (1) Is made by a group of persons, § 300.556 Monitoring activities. location, or evaluation activity, the including the parents, and other persons (a) The SEA shall carry out activities notice must be published or announced knowledgeable about the child, the to ensure that § 300.550 is implemented in newspapers or other media, or both, meaning of the evaluation data, and the by each public agency. with circulation adequate to notify placement options; and (b) If there is evidence that a public parents throughout the State of the (2) Is made in conformity with the agency makes placements that are activity. LRE provisions of this subpart, inconsistent with § 300.550, the SEA (Authority: 20 U.S.C. 1412(a)(8), 1417(c)) including §§ 300.550–300.554; shall— (b) The child’s placement— (1) Review the public agency’s § 300.562 Access rights. justification for its actions; and (1) Is determined at least annually; (a) Each participating agency shall (2) Assist in planning and permit parents to inspect and review (2) Is based on the child’s IEP; and implementing any necessary corrective any education records relating to their (3) Is as close as possible to the child’s action. children that are collected, maintained, home; (Authority: 20 U.S.C. 1412(a)(5)) or used by the agency under this part. (c) Unless the IEP of a child with a The agency shall comply with a request Confidentiality of Information disability requires some other without unnecessary delay and before arrangement, the child is educated in § 300.560 Definitions. any meeting regarding an IEP, or any the school that he or she would attend As used in §§ 300.560–300.577— hearing pursuant to §§ 300.507 and if nondisabled; (a) Destruction means physical 300.521–300.528, and in no case more (d) In selecting the LRE, consideration destruction or removal of personal than 45 days after the request has been is given to any potential harmful effect identifiers from information so that the made. on the child or on the quality of services information is no longer personally (b) The right to inspect and review that he or she needs; and identifiable. education records under this section (e) A child with a disability is not (b) Education records means the type includes— removed from education in age- of records covered under the definition (1) The right to a response from the appropriate regular classrooms solely of ‘‘education records’’ in 34 CFR part participating agency to reasonable because of needed modifications in the 99 (the regulations implementing the requests for explanations and general curriculum. Family Educational Rights and Privacy interpretations of the records; (2) The right to request that the (Authority: 20 U.S.C. 1412(a)(5)) Act of 1974). (c) Participating agency means any agency provide copies of the records § 300.553 Nonacademic settings. agency or institution that collects, containing the information if failure to provide those copies would effectively In providing or arranging for the maintains, or uses personally identifiable information, or from which prevent the parent from exercising the provision of nonacademic and right to inspect and review the records; extracurricular services and activities, information is obtained, under Part B of the Act. and including meals, recess periods, and the (3) The right to have a representative services and activities set forth in (Authority: 20 U.S.C. 1221e–3, 1412(a)(8), 1417(c)) of the parent inspect and review the § 300.306, each public agency shall records. ensure that each child with a disability § 300.561 Notice to parents. (c) An agency may presume that the participates with nondisabled children parent has authority to inspect and in those services and activities to the (a) The SEA shall give notice that is adequate to fully inform parents about review records relating to his or her maximum extent appropriate to the child unless the agency has been needs of that child. the requirements of § 300.127, including— advised that the parent does not have (Authority: 20 U.S.C. 1412(a)(5)) (1) A description of the extent that the the authority under applicable State law governing such matters as guardianship, § 300.554 Children in public or private notice is given in the native languages institutions. of the various population groups in the separation, and divorce. State; (Authority: 20 U.S.C. 1412(a)(8), 1417(c)) Except as provided in § 300.600(d), an (2) A description of the children on SEA must ensure that § 300.550 is whom personally identifiable § 300.563 Record of access. effectively implemented, including, if information is maintained, the types of Each participating agency shall keep a necessary, making arrangements with information sought, the methods the record of parties obtaining access to public and private institutions (such as State intends to use in gathering the education records collected, a memorandum of agreement or special information (including the sources from maintained, or used under Part B of the implementation procedures). whom information is gathered), and the Act (except access by parents and (Authority: 20 U.S.C. 1412(a)(5)) uses to be made of the information; authorized employees of the

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12459 participating agency), including the § 300.569 Result of hearing. identifiable information at collection, name of the party, the date access was (a) If, as a result of the hearing, the storage, disclosure, and destruction given, and the purpose for which the agency decides that the information is stages. party is authorized to use the records. inaccurate, misleading or otherwise in (b) One official at each participating (Authority: 20 U.S.C. 1412(a)(8), 1417(c)) violation of the privacy or other rights agency shall assume responsibility for of the child, it shall amend the ensuring the confidentiality of any § 300.564 Records on more than one child. information accordingly and so inform personally identifiable information. If any education record includes the parent in writing. (c) All persons collecting or using information on more than one child, the (b) If, as a result of the hearing, the personally identifiable information must parents of those children have the right agency decides that the information is receive training or instruction regarding to inspect and review only the not inaccurate, misleading, or otherwise the State’s policies and procedures information relating to their child or to in violation of the privacy or other under § 300.127 and 34 CFR part 99. (d) Each participating agency shall be informed of that specific information. rights of the child, it shall inform the maintain, for public inspection, a (Authority: 20 U.S.C. 1412(a)(8), 1417(c)) parent of the right to place in the records it maintains on the child a current listing of the names and § 300.565 List of types and locations of statement commenting on the positions of those employees within the information. information or setting forth any reasons agency who may have access to personally identifiable information. Each participating agency shall for disagreeing with the decision of the provide parents on request a list of the agency. (Authority: 20 U.S.C. 1412(a)(8), 1417(c)) types and locations of education records (c) Any explanation placed in the § 300.573 Destruction of information. records of the child under this section collected, maintained, or used by the (a) The public agency shall inform agency. must— (1) Be maintained by the agency as parents when personally identifiable (Authority: 20 U.S.C. 1412(a)(8), 1417(c)) part of the records of the child as long information collected, maintained, or as the record or contested portion is used under this part is no longer needed § 300.566 Fees. to provide educational services to the (a) Each participating agency may maintained by the agency; and (2) If the records of the child or the child. charge a fee for copies of records that (b) The information must be destroyed contested portion is disclosed by the are made for parents under this part if at the request of the parents. However, agency to any party, the explanation the fee does not effectively prevent the a permanent record of a student’s name, parents from exercising their right to must also be disclosed to the party. address, and phone number, his or her inspect and review those records. (Authority: 20 U.S.C. 1412(a)(8), 1417(c)) grades, attendance record, classes attended, grade level completed, and (b) A participating agency may not § 300.570 Hearing procedures. charge a fee to search for or to retrieve year completed may be maintained information under this part. A hearing held under § 300.568 must without time limitation. be conducted according to the (Authority: 20 U.S.C. 1412(a)(8), 1417(c)) procedures under 34 CFR 99.22. (Authority: 20 U.S.C. 1412(a)(8), 1417(c)) § 300.567 Amendment of records at (Authority: 20 U.S.C. 1412(a)(8), 1417(c)) § 300.574 Children's rights. parent's request. (a) The SEA shall provide policies § 300.571 Consent. (a) A parent who believes that and procedures regarding the extent to information in the education records (a) Except as to disclosures addressed which children are afforded rights of collected, maintained, or used under in § 300.529(b) for which parental privacy similar to those afforded to this part is inaccurate or misleading or consent is not required by Part 99, parents, taking into consideration the violates the privacy or other rights of the parental consent must be obtained age of the child and type or severity of child may request the participating before personally identifiable disability. agency that maintains the information to information is— (b) Under the regulations for the amend the information. (1) Disclosed to anyone other than Family Educational Rights and Privacy officials of participating agencies (b) The agency shall decide whether Act of 1974 (34 CFR 99.5(a)), the rights collecting or using the information to amend the information in accordance of parents regarding education records under this part, subject to paragraph (b) with the request within a reasonable are transferred to the student at age 18. of this section; or period of time of receipt of the request. (c) If the rights accorded to parents (2) Used for any purpose other than under Part B of the Act are transferred (c) If the agency decides to refuse to meeting a requirement of this part. to a student who reaches the age of amend the information in accordance (b) An educational agency or majority, consistent with § 300.517, the with the request, it shall inform the institution subject to 34 CFR part 99 rights regarding educational records in parent of the refusal and advise the may not release information from §§ 300.562–300.573 must also be parent of the right to a hearing under education records to participating transferred to the student. However, the § 300.568. agencies without parental consent public agency must provide any notice (Authority: 20 U.S.C. 1412(a)(8); 1417(c)) unless authorized to do so under part required under section 615 of the Act to 99. § 300.568 Opportunity for a hearing. the student and the parents. (c) The SEA shall provide policies (Authority: 20 U.S.C. 1412(a)(8), 1417(c)) The agency shall, on request, provide and procedures that are used in the an opportunity for a hearing to event that a parent refuses to provide § 300.575 Enforcement. challenge information in education consent under this section. The SEA shall provide the policies records to ensure that it is not (Authority: 20 U.S.C. 1412(a)(8), 1417(c)) and procedures, including sanctions, inaccurate, misleading, or otherwise in that the State uses to ensure that its violation of the privacy or other rights § 300.572 Safeguards. policies and procedures are followed of the child. (a) Each participating agency shall and that the requirements of the Act and (Authority: 20 U.S.C. 1412(a)(8), 1417(c)) protect the confidentiality of personally the regulations in this part are met.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12460 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

(Authority: 20 U.S.C. 1412(a)(8), 1417(c)) (b) Content of notice. In the written (2) The Hearing Official or Panel may notice described in paragraph (a)(2) of schedule a prehearing conference of the § 300.576 Disciplinary information. this section, the Secretary— Hearing Official or Panel and parties. (a) The State may require that a public (1) States the basis on which the (3) Any party may request the Hearing agency include in the records of a child Secretary proposes to make a final Official or Panel to schedule a with a disability a statement of any determination that the State is not prehearing or other conference. The current or previous disciplinary action eligible; Hearing Official or Panel decides that has been taken against the child (2) May describe possible options for whether a conference is necessary and and transmit the statement to the same resolving the issues; notifies all parties. extent that the disciplinary information (3) Advises the SEA that it may (4) At a prehearing or other is included in, and transmitted with, the request a hearing and that the request conference, the Hearing Official or Panel student records of nondisabled children. for a hearing must be made not later and the parties may consider subjects (b) The statement may include a than 30 days after it receives the notice such as— description of any behavior engaged in of the proposed final determination that (i) Narrowing and clarifying issues; by the child that required disciplinary the State is not eligible; and (ii) Assisting the parties in reaching action, a description of the disciplinary (4) Provides information about the agreements and stipulations; action taken, and any other information procedures followed for a hearing. (iii) Clarifying the positions of the that is relevant to the safety of the child parties; and other individuals involved with the (Authority: 20 U.S.C. (1412(d)(2)) (iv) Determining whether an child. § 300.582 Hearing official or panel. evidentiary hearing or oral argument (c) If the State adopts such a policy, (a) If the SEA requests a hearing, the should be held; and and the child transfers from one school Secretary designates one or more (v) Setting dates for— (A) The exchange of written to another, the transmission of any of individuals, either from the Department documents; the child’s records must include both or elsewhere, not responsible for or (B) The receipt of comments from the the child’s current individualized connected with the administration of parties on the need for oral argument or education program and any statement of this program, to conduct a hearing. evidentiary hearing; current or previous disciplinary action (b) If more than one individual is (C) Further proceedings before the that has been taken against the child. designated, the Secretary designates one Hearing Official or Panel (including an (Authority: 20 U.S.C. 1413(j)) of those individuals as the Chief evidentiary hearing or oral argument, if Hearing Official of the Hearing Panel. If § 300.577 Department use of personally either is scheduled); identifiable information. one individual is designated, that (D) Requesting the names of witnesses individual is the Hearing Official. If the Department or its authorized each party wishes to present at an representatives collect any personally (Authority: 20 U.S.C. (1412(d)(2)) evidentiary hearing and estimation of time for each presentation; or identifiable information regarding § 300.583 Hearing procedures. children with disabilities that is not (E) Completion of the review and the (a) As used in §§ 300.581–300.586 the subject to 5 U.S.C. 552a (the Privacy Act initial decision of the Hearing Official or term party or parties means the of 1974), the Secretary applies the Panel. following: requirements of 5 U.S.C. 552a (b)(1)–(2), (5) A prehearing or other conference (1) An SEA that requests a hearing (4)–(11); (c); (d); (e)(1), (2), (3)(A), (B), held under paragraph (b)(4) of this regarding the proposed disapproval of and (D), (5)–(10); (h); (m); and (n); and section may be conducted by telephone the State’s eligibility under this part. the regulations implementing those conference call. (2) The Department official who provisions in 34 CFR part 5b. (6) At a prehearing or other administers the program of financial conference, the parties shall be prepared (Authority: 20 U.S.C. 1412(a)(8), 1417(c)) assistance under this part. to discuss the subjects listed in Department Procedures (3) A person, group or agency with an paragraph (b)(4) of this section. interest in and having relevant (7) Following a prehearing or other § 300.580 Determination by the Secretary information about the case that has conference the Hearing Official or Panel that a State is eligible. applied for and been granted leave to may issue a written statement If the Secretary determines that a intervene by the Hearing Official or describing the issues raised, the action State is eligible to receive a grant under Panel. taken, and the stipulations and Part B of the Act, the Secretary notifies (b) Within 15 days after receiving a agreements reached by the parties. the State of that determination. request for a hearing, the Secretary (d) The Hearing Official or Panel may (Authority: 20 U.S.C. 1412(d)) designates a Hearing Official or Panel require parties to state their positions and notifies the parties. and to provide all or part of the § 300.581 Notice and hearing before (c) The Hearing Official or Panel may evidence in writing. determining that a State is not eligible. regulate the course of proceedings and (e) The Hearing Official or Panel may (a) General. (1) The Secretary does not the conduct of the parties during the require parties to present testimony make a final determination that a State proceedings. The Hearing Official or through affidavits and to conduct cross- is not eligible to receive a grant under Panel takes all steps necessary to examination through interrogatories. Part B of the Act until providing the conduct a fair and impartial proceeding, (f) The Hearing Official or Panel may State— to avoid delay, and to maintain order, direct the parties to exchange relevant (i) With reasonable notice; and including the following: documents or information and lists of (ii) With an opportunity for a hearing. (1) The Hearing Official or Panel may witnesses, and to send copies to the (2) In implementing paragraph hold conferences or other types of Hearing Official or Panel. (a)(1)(i) of this section, the Secretary appropriate proceedings to clarify, (g) The Hearing Official or Panel may sends a written notice to the SEA by simplify, or define the issues or to receive, rule on, exclude, or limit certified mail with return receipt consider other matters that may aid in evidence at any stage of the requested. the disposition of the case. proceedings.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12461

(h) The Hearing Official or Panel may (b) The initial decision of a Panel is (2) Mailed; or (3) Sent by facsimile rule on motions and other issues at any made by a majority of Panel members. transmission. stage of the proceedings. (c) The Hearing Official or Panel mails (c) A party filing by facsimile (i) The Hearing Official or Panel may by certified mail with return receipt transmission is responsible for examine witnesses. requested a copy of the initial decision confirming that a complete and legible (j) The Hearing Official or Panel may to each party (or to the party’s counsel) copy of the document was received by set reasonable time limits for and to the Secretary, with a notice the Department. submission of written documents. stating that each party has an (d) If a document is filed by facsimile (k) The Hearing Official or Panel may opportunity to submit written transmission, the Secretary, the Hearing refuse to consider documents or other comments regarding the decision to the Official, or the Panel, as applicable, may submissions if they are not submitted in Secretary. require the filing of a follow-up hard a timely manner unless good cause is (d) Each party may file comments and copy by hand-delivery or by mail within shown. recommendations on the initial decision a reasonable period of time. (l) The Hearing Official or Panel may with the Hearing Official or Panel (e) If agreed upon by the parties, interpret applicable statutes and within 15 days of the date the party service of a document may be made regulations but may not waive them or receives the Panel’s decision. upon the other party by facsimile rule on their validity. (e) The Hearing Official or Panel transmission. (m)(1) The parties shall present their sends a copy of a party’s initial positions through briefs and the comments and recommendations to the (Authority: 20 U.S.C. 1413(c)) submission of other documents and may other parties by certified mail with § 300.586 Judicial review. request an oral argument or evidentiary return receipt requested. Each party may If a State is dissatisfied with the hearing. The Hearing Official or Panel file responsive comments and Secretary’s final action with respect to shall determine whether an oral recommendations with the Hearing the eligibility of the State under section argument or an evidentiary hearing is Official or Panel within seven days of 612 of the Act, the State may, not later needed to clarify the positions of the the date the party receives the initial than 60 days after notice of that action, parties. comments and recommendations. file with the United States Court of (2) The Hearing Official or Panel gives (f) The Hearing Official or Panel Appeals for the circuit in which that each party an opportunity to be forwards the parties’ initial and State is located a petition for review of represented by counsel. responsive comments on the initial that action. A copy of the petition must (n) If the Hearing Official or Panel decision to the Secretary who reviews be forthwith transmitted by the clerk of determines that an evidentiary hearing the initial decision and issues a final the court to the Secretary. The Secretary would materially assist the resolution of decision. then files in the court the record of the the matter, the Hearing Official or Panel (g) The initial decision of the Hearing proceedings upon which the Secretary’s gives each party, in addition to the Official or Panel becomes the final action was based, as provided in section opportunity to be represented by decision of the Secretary unless, within 2112 of title 28, United States Code. counse— 25 days after the end of the time for (1) An opportunity to present receipt of written comments, the (Authority: 20 U.S.C. 1416(b)) witnesses on the party’s behalf; and Secretary informs the Hearing Official or § 300.587 Enforcement. (2) An opportunity to cross-examine Panel and the parties to a hearing in witnesses either orally or with written writing that the decision is being further (a) General. The Secretary initiates an questions. reviewed for possible modification. action described in paragraph (b) of this (o) The Hearing Official or Panel (h) The Secretary may reject or modify section if the Secretary finds— accepts any evidence that it finds is the initial decision of the Hearing (1) That there has been a failure by the relevant and material to the proceedings Official or Panel if the Secretary finds State to comply substantially with any and is not unduly repetitious. that it is clearly erroneous. provision of Part B of the Act, this part, (p)(1) The Hearing Official or Panel— (i) The Secretary conducts the review or 34 CFR part 301; or (i) Arranges for the preparation of a based on the initial decision, the written (2) That there is a failure to comply transcript of each hearing; record, the Hearing Official’s or Panel’s with any condition of an LEA’s or SEA’s (ii) Retains the original transcript as proceedings, and written comments. eligibility under Part B of the Act, this part of the record of the hearing; and The Secretary may remand the matter part or 34 CFR part 301, including the (iii) Provides one copy of the for further proceedings. terms of any agreement to achieve transcript to each party. (j) The Secretary issues the final compliance with Part B of the Act, this (2) Additional copies of the transcript decision within 30 days after notifying part, or Part 301 within the timelines are available on request and with the Hearing Official or Panel that the specified in the agreement. payment of the reproduction fee. initial decision is being further (b) Types of action. The Secretary, (q) Each party shall file with the reviewed. after notifying the SEA (and any LEA or Hearing Official or Panel all written State agency affected by a failure (Authority: 20 U.S.C. (1412(d)(2)) motions, briefs, and other documents described in paragraph (a)(2) of this and shall at the same time provide a § 300.585 Filing requirements. section)— copy to the other parties to the (a) Any written submission under (1) Withholds in whole or in part any proceedings. §§ 300.581–300.585 must be filed by further payments to the State under Part (Authority: 20 U.S.C. (1412(d)(2)) hand-delivery, by mail, or by facsimile B of the Act; transmission. The Secretary discourages (2) Refers the matter to the § 300.584 Initial decision; final decision. the use of facsimile transmission for Department of Justice for enforcement; (a) The Hearing Official or Panel documents longer than five pages. or prepares an initial written decision that (b) The filing date under paragraph (a) (3) Takes any other enforcement addresses each of the points in the of this section is the date the document action authorized by law. notice sent by the Secretary to the SEA is— (c) Nature of withholding. (1) If the under § 300.581. (1) Hand-delivered; Secretary determines that it is

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12462 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations appropriate to withhold further paragraph (b) of this section to ensure (2) All evidence that the State wishes payments under paragraph (b)(1) of this compliance with Part B of the Act and the Secretary to consider in determining section, the Secretary may determine this part, except— whether all eligible children with that the withholding will be limited to (1) Any reduction or withholding of disabilities have FAPE available to programs or projects, or portions payments to the State under paragraph them, setting forth in detail— thereof, affected by the failure, or that (b)(1) of this section is proportionate to (i) The basis on which the State has the SEA shall not make further the total funds allotted under section concluded that FAPE is available to all payments under Part B of the Act to 611 of the Act to the State as the number eligible children in the State; and specified LEA or State agencies affected of eligible children with disabilities in (ii) The procedures that the State will by the failure. adult prisons under the supervision of implement to ensure that FAPE remains (2) Until the Secretary is satisfied that the other public agency is proportionate available to all eligible children in the there is no longer any failure to comply to the number of eligible individuals State, which must include— with the provisions of Part B of the Act, with disabilities in the State under the (A) The State’s procedures under this part, or 34 CFR part 301, as supervision of the State educational § 300.125 for ensuring that all eligible specified in paragraph (a) of this agency; and children are identified, located and section, payments to the State under (2) Any withholding of funds under evaluated; Part B of the Act are withheld in whole paragraph (e)(1) of this section is limited (B) The State’s procedures for or in part, or payments by the SEA to the specific agency responsible for monitoring public agencies to ensure under Part B of the Act are limited to the failure to comply with Part B of the that they comply with all requirements local educational agencies and State Act or this part. of this part; agencies whose actions did not cause or (C) The State’s complaint procedures (Authority: 20 U.S.C. 1416) were not involved in the failure, as the under §§ 300.660–300.662; and case may be. §§ 300.588 [Reserved] (D) The State’s hearing procedures (3) Any SEA, LEA, or other State under §§ 300.507–300.511 and 300.520– agency that has received notice under § 300.589 Waiver of requirement regarding 300.528; paragraph (a) of this section shall, by supplementing and not supplanting with (3) A summary of all State and means of a public notice, take such Part B funds. Federal monitoring reports, and State measures as may be necessary to bring (a) Except as provided under complaint decisions (see §§ 300.660– the pendency of an action pursuant to §§ 300.232–300.235, funds paid to a 300.662) and hearing decisions (see this subsection to the attention of the State under Part B of the Act must be §§ 300.507–300.511 and 300.520– public within the jurisdiction of that used to supplement and increase the 300.528), issued within three years prior agency. level of Federal, State, and local funds to the date of the State’s request for a (4) Before withholding under (including funds that are not under the waiver under this section, that includes paragraph (b)(1) of this section, the direct control of SEAs or LEAs) any finding that FAPE has not been Secretary provides notice and a hearing expended for special education and available to one or more eligible pursuant to the procedures in related services provided to children children, and evidence that FAPE is §§ 300.581–300.586. with disabilities under Part B of the Act now available to all children addressed (d) Referral for appropriate and in no case to supplant those enforcement. (1) Before the Secretary in those reports or decisions; and Federal, State, and local funds. A State (4) Evidence that the State, in makes a referral under paragraph (b)(2) may use funds it retains under § 300.602 of this section for enforcement, or takes determining that FAPE is currently without regard to the prohibition on available to all eligible children with any other enforcement action authorized supplanting other funds (see § 300.372). by law under paragraph (b)(3), the disabilities in the State, has consulted (b) If a State provides clear and Secretary provides the State— with the State advisory panel under convincing evidence that all eligible (i) With reasonable notice; and § 300.650, the State’s parent training (ii) With an opportunity for a hearing. children with disabilities throughout and information center or centers, the (2) The hearing described in the State have FAPE available to them, State’s protection and advocacy paragraph (d)(1)(ii) of this section the Secretary may waive for a period of organization, and other organizations consists of an opportunity to meet with one year in whole or in part the representing the interests of children the Assistant Secretary for the Office of requirement under § 300.153 (regarding with disabilities and their parents, and Special Education and Rehabilitative State-level nonsupplanting) if the a summary of the input of these Services to demonstrate why the Secretary concurs with the evidence organizations. Department should not make a referral provided by the State. (d) If the Secretary determines that the for enforcement. (c) If a State wishes to request a request and supporting evidence (e) Divided State agency waiver under this section, it must submitted by the State makes a prima responsibility. For purposes of this part, submit to the Secretary a written request facie showing that FAPE is, and will if responsibility for ensuring that the that includes— remain, available to all eligible children requirements of this part are met with (1) An assurance that FAPE is with disabilities in the State, the respect to children with disabilities who currently available, and will remain Secretary, after notice to the public are convicted as adults under State law available throughout the period that a throughout the State, conducts a public and incarcerated in adult prisons is waiver would be in effect, to all eligible hearing at which all interested persons assigned to a public agency other than children with disabilities throughout and organizations may present evidence the SEA pursuant to § 300.600(d), and if the State, regardless of the public regarding the following issues: the Secretary finds that the failure to agency that is responsible for providing (1) Whether FAPE is currently comply substantially with the FAPE to them. The assurance must be available to all eligible children with provisions of Part B of the Act or this signed by an official who has the disabilities in the State. part are related to a failure by the public authority to provide that assurance as it (2) Whether the State will be able to agency, the Secretary takes one of the applies to all eligible children with ensure that FAPE remains available to enforcement actions described in disabilities in the State; all eligible children with disabilities in

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12463 the State if the Secretary provides the requirements of Part B of the Act are (2) Each outlying area may use up to requested waiver. met with respect to students with five percent of the amount it receives (e) Following the hearing, the disabilities who are convicted as adults under this section for any fiscal year or Secretary, based on all submitted under State law and incarcerated in $35,000, whichever is greater. evidence, will provide a waiver, in adult prisons. (b) Funds described in paragraph (a) whole or in part, for a period of one year (Authority: 20 U.S.C. 1412(a)(11)) of this section may also be used for the if the Secretary finds that the State has administration of Part C of the Act, if provided clear and convincing evidence § 300.601 Relation of Part B to other the SEA is the lead agency for the State that FAPE is currently available to all Federal programs. under that part. eligible children with disabilities in the Part B of the Act may not be (Authority: 20 U.S.C. 1411(f)(2)) State, and the State will be able to construed to permit a State to reduce ensure that FAPE remains available to medical and other assistance available § 300.621 Allowable costs. all eligible children with disabilities in to children with disabilities, or to alter (a) The SEA may use funds under the State if the Secretary provides the the eligibility of a child with a § 300.620 for— requested waiver. disability, under title V (Maternal and (1) Administration of State activities (f) A State may receive a waiver of the Child Health) or title XIX (Medicaid) of under Part B of the Act and for planning requirement of section 612(a)(19)(A) and the Social Security Act, to receive at the State level, including planning, or § 300.154(a) if it satisfies the services that are also part of FAPE. assisting in the planning, of programs or requirements of paragraphs (b) through (Authority: 20 U.S.C. 1412(e)) projects for the education of children (e) of this section. with disabilities; (g) The Secretary may grant § 300.602 State-level activities. (2) Approval, supervision, subsequent waivers for a period of one (a) Each State may retain not more monitoring, and evaluation of the year each, if the Secretary determines than the amount described in paragraph effectiveness of local programs and that the State has provided clear and (b) of this section for administration in projects for the education of children convincing evidence that all eligible accordance with §§ 300.620 and 300.621 with disabilities; children with disabilities throughout and other State-level activities in (3) Technical assistance to LEAs with the State have, and will continue to accordance with § 300.370. respect to the requirements of Part B of have throughout the one-year period of (b) For each fiscal year, the Secretary the Act; the waiver, FAPE available to them. determines and reports to the SEA an (4) Leadership services for the (Authority: 20 U.S.C. 1412(a)(18)(C), amount that is 25 percent of the amount program supervision and management (19)(C)(ii) and (E)) the State received under this section for of special education activities for fiscal year 1997, cumulatively adjusted children with disabilities; and Subpart FÐState Administration by the Secretary for each succeeding (5) Other State leadership activities fiscal year by the lesser of— General and consultative services. (1) The percentage increase, if any, (b) The SEA shall use the remainder § 300.600 Responsibility for all educational from the preceding fiscal year in the of its funds under § 300.620 in programs. State’s allocation under section 611 of accordance with § 300.370. (a) The SEA is responsible for the Act; or (2) The rate of inflation, as measured (Authority: 20 U.S.C. 1411(f)(2)) ensuring— by the percentage increase, if any, from (1) That the requirements of this part § 300.622 Subgrants to LEAs for capacity- the preceding fiscal year in the are carried out; and building and improvement. (2) That each educational program for Consumer Price Index For All Urban In any fiscal year in which the children with disabilities administered Consumers, published by the Bureau of percentage increase in the State’s within the State, including each Labor Statistics of the Department of allocation under 611 of the Act exceeds program administered by any other Labor. the rate of inflation (as measured by the State or local agency— (Authority: 20 U.S.C. 1411(f)(1)(A) and (B)) percentage increase, if any, from the (i) Is under the general supervision of Use of Funds preceding fiscal year in the Consumer the persons responsible for educational Price Index For All Urban Consumers, programs for children with disabilities § 300.620 Use of funds for State published by the Bureau of Labor in the SEA; and administration. Statistics of the Department of Labor), (ii) Meets the education standards of (a) For the purpose of administering each State shall reserve, from its the SEA (including the requirements of Part B of the Act, including section 619 allocation under 611 of the Act, the this part). of the Act (including the coordination of amount described in § 300.623 to make (b) The State must comply with activities under Part B of the Act with, subgrants to LEAs, unless that amount paragraph (a) of this section through and providing technical assistance to, is less than $100,000, to assist them in State statute, State regulation, signed other programs that provide services to providing direct services and in making agreement between respective agency children with disabilities)— systemic change to improve results for officials, or other documents. (1) Each State may use not more than children with disabilities through one or (c) Part B of the Act does not limit the twenty percent of the maximum amount more of the following: responsibility of agencies other than it may retain under § 300.602(a) for any (a) Direct services, including educational agencies for providing or fiscal year or $500,000 (adjusted by the alternative programming for children paying some or all of the costs of FAPE cumulative rate of inflation since fiscal who have been expelled from school, to children with disabilities in the State. year 1998, as measured by the and services for children in correctional (d) Notwithstanding paragraph (a) of percentage increase, if any, in the facilities, children enrolled in State- this section, the Governor (or another Consumer Price Index For All Urban operated or State-supported schools, individual pursuant to State law) may Consumers, published by the Bureau of and children in charter schools. assign to any public agency in the State Labor Statistics of the Department of (b) Addressing needs or carrying out the responsibility of ensuring that the Labor), whichever is greater; and improvement strategies identified in the

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12464 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

State’s Improvement Plan under subpart § 300.651 Membership. adults and incarcerated in adult prisons, 1 of Part D of the Act. (a) General. The membership of the even if, consistent with § 300.600(d), a (c) Adopting promising practices, State advisory panel must consist of State assigns general supervision materials, and technology, based on members appointed by the Governor, or responsibility for those students to a knowledge derived from education any other official authorized under State public agency other than an SEA. research and other sources. law to make these appointments, that is (Authority: 20 U.S.C. 1412(a)(21)(D)) (d) Establishing, expanding, or representative of the State population implementing interagency agreements and that is composed of individuals § 300.653 Advisory panel procedures. and arrangements between LEAs and involved in, or concerned with the (a) The advisory panel shall meet as other agencies or organizations education of children with disabilities, often as necessary to conduct its concerning the provision of services to including— business. children with disabilities and their (1) Parents of children with (b) By July 1 of each year, the advisory families. disabilities; panel shall submit an annual report of (e) Increasing cooperative problem- (2) Individuals with disabilities; panel activities and suggestions to the solving between parents and school (3) Teachers; SEA. This report must be made personnel and promoting the use of (4) Representatives of institutions of available to the public in a manner alternative dispute resolution. higher education that prepare special consistent with other public reporting (Authority: 20 U.S.C. 1411(f)(4)(A)) education and related services requirements of Part B of the Act. personnel; (c) Official minutes must be kept on § 300.623 Amount required for subgrants (5) State and local education officials; all panel meetings and must be made to LEAs. (6) Administrators of programs for available to the public on request. (d) All advisory panel meetings and For each fiscal year, the amount children with disabilities; agenda items must be announced referred to in § 300.622 is— (7) Representatives of other State enough in advance of the meeting to (a) The maximum amount the State agencies involved in the financing or afford interested parties a reasonable was allowed to retain under § 300.602(a) delivery of related services to children opportunity to attend. Meetings must be for the prior fiscal year, or, for fiscal with disabilities; open to the public. year 1998, 25 percent of the State’s (8) Representatives of private schools allocation for fiscal year 1997 under (e) Interpreters and other necessary and public charter schools; services must be provided at panel section 611; multiplied by (9) At least one representative of a (b) The difference between the meetings for panel members or vocational, community, or business percentage increase in the State’s participants. The State may pay for organization concerned with the allocation under this section and the these services from funds under provision of transition services to rate of inflation, as measured by the § 300.620. children with disabilities; and percentage increase, if any, from the (f) The advisory panel shall serve (10) Representatives from the State preceding fiscal year in the Consumer without compensation but the State juvenile and adult corrections agencies. Price Index For All Urban Consumers, must reimburse the panel for reasonable (b) Special rule. A majority of the published by the Bureau of Labor and necessary expenses for attending members of the panel must be Statistics of the Department of Labor. meetings and performing duties. The individuals with disabilities or parents State may use funds under § 300.620 for (Authority: 20 U.S.C. 1411(f)(4)(B)) of children with disabilities. this purpose. § 300.624 State discretion in awarding (Authority: 20 U.S.C. 1412(a)(21)(B) and (C)) (Authority: 20 U.S.C. 1412(a)(21)) subgrants. § 300.652 Advisory panel functions. State Complaint Procedures The State may establish priorities in awarding subgrants under § 300.622 to (a) General. The State advisory panel § 300.660 Adoption of State complaint LEAs competitively or on a targeted shall— procedures. basis. (1) Advise the SEA of unmet needs (a) General. Each SEA shall adopt within the State in the education of (Authority: 20 U.S.C. 1411(f)(4)(A)) written procedures for— children with disabilities; (1) Resolving any complaint, State Advisory Panel (2) Comment publicly on any rules or including a complaint filed by an regulations proposed by the State organization or individual from another § 300.650 Establishment of advisory regarding the education of children with panels. State, that meets the requirements of disabilities; § 300.662 by— (a) Each State shall establish and (3) Advise the SEA in developing (i) Providing for the filing of a maintain, in accordance with evaluations and reporting on data to the complaint with the SEA; and §§ 300.650–300.653, a State advisory Secretary under section 618 of the Act; (ii) At the SEA’s discretion, providing panel on the education of children with (4) Advise the SEA in developing for the filing of a complaint with a disabilities. corrective action plans to address public agency and the right to have the (b) The advisory panel must be findings identified in Federal SEA review the public agency’s decision appointed by the Governor or any other monitoring reports under Part B of the on the complaint; and official authorized under State law to Act; and (2) Widely disseminating to parents make those appointments. (5) Advise the SEA in developing and and other interested individuals, (c) If a State has an existing advisory implementing policies relating to the including parent training and panel that can perform the functions in coordination of services for children information centers, protection and § 300.652, the State may modify the with disabilities. advocacy agencies, independent living existing panel so that it fulfills all of the (b) Advising on eligible students with centers, and other appropriate entities, requirements of §§ 300.650–300.653, disabilities in adult prisons. The the State’s procedures under instead of establishing a new advisory advisory panel also shall advise on the §§ 300.660–300.662. panel. education of eligible students with (b) Remedies for denial of appropriate (Authority: 20 U.S.C. 1412(a)(21)(A)) disabilities who have been convicted as services. In resolving a complaint in

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12465 which it has found a failure to provide conclusion of the hearing. However, any may receive under section 611 of the appropriate services, an SEA, pursuant issue in the complaint that is not a part Act for any fiscal year is— to its general supervisory authority of the due process action must be (1) The number of children with under Part B of the Act, must address: resolved using the time limit and disabilities in the State who are (1) How to remediate the denial of procedures described in paragraphs (a) receiving special education and related those services, including, as and (b) of this section. services— appropriate, the awarding of monetary (2) If an issue is raised in a complaint (i) Aged 3 through 5 if the State is reimbursement or other corrective filed under this section that has eligible for a grant under section 619 of action appropriate to the needs of the previously been decided in a due the Act; and child; and process hearing involving the same (ii) Aged 6 through 21; multiplied (2) Appropriate future provision of parties— by— services for all children with (i) The hearing decision is binding; (2) Forty (40) percent of the average disabilities. and per-pupil expenditure in public (ii) The SEA must inform the (Authority: 20 U.S.C. 1221e–3) elementary and secondary schools in complainant to that effect. the United States. § 300.661 Minimum State complaint (3) A complaint alleging a public procedures. agency’s failure to implement a due (Authority: 20 U.S.C. 1411(a)) (a) Time limit; minimum procedures. process decision must be resolved by § 300.702 Definition. the SEA. Each SEA shall include in its complaint For the purposes of this section the procedures a time limit of 60 days after (Authority: 20 U.S.C. 1221e–3) term average per-pupil expenditure in a complaint is filed under § 300.660(a) § 300.662 Filing a complaint. public elementary and secondary to— (a) An organization or individual may schools in the United States means— (1) Carry out an independent on-site (a) Without regard to the source of investigation, if the SEA determines that file a signed written complaint under the procedures described in §§ 300.660– funds— an investigation is necessary; (1) The aggregate current (2) Give the complainant the 300.661. (b) The complaint must include— expenditures, during the second fiscal opportunity to submit additional year preceding the fiscal year for which information, either orally or in writing, (1) A statement that a public agency has violated a requirement of Part B of the determination is made (or, if about the allegations in the complaint; satisfactory data for that year are not (3) Review all relevant information the Act or of this part; and (2) The facts on which the statement available, during the most recent and make an independent is based. preceding fiscal year for which determination as to whether the public (c) The complaint must allege a satisfactory data are available) of all agency is violating a requirement of Part violation that occurred not more than LEAs in the 50 States and the District of B of the Act or of this part; and one year prior to the date that the Columbia); plus (4) Issue a written decision to the complaint is received in accordance (2) Any direct expenditures by the complainant that addresses each with § 300.660(a) unless a longer period State for the operation of those agencies; allegation in the complaint and is reasonable because the violation is divided by contains— continuing, or the complainant is (b) The aggregate number of children (i) Findings of fact and conclusions; requesting compensatory services for a in average daily attendance to whom and violation that occurred not more than those agencies provided free public (ii) The reasons for the SEA’s final three years prior to the date the education during that preceding year. decision. (b) Time extension; final decision; complaint is received under (Authority: 20 U.S.C. 1411(h)(1)) implementation. The SEA’s procedures § 300.660(a). § 300.703 Allocations to States. described in paragraph (a) of this (Authority: 20 U.S.C. 1221e–3) section also must— (a) General. After reserving funds for (1) Permit an extension of the time Subpart GÐAllocation of Funds; studies and evaluations under section limit under paragraph (a) of this section Reports 674(e) of the Act, and for payments to the outlying areas, the freely associated only if exceptional circumstances exist Allocations with respect to a particular complaint; States, and the Secretary of the Interior and § 300.700 Special definition of the term under §§ 300.715 and 300.717–300.719, (2) Include procedures for effective ``State''. the Secretary allocates the remaining implementation of the SEA’s final For the purposes of §§ 300.701, and amount among the States in accordance decision, if needed, including— 300.703–300.714, the term State means with paragraph (b) of this section and (i) Technical assistance activities; each of the 50 States, the District of §§ 300.706–300.709. (ii) Negotiations; and Columbia, and the Commonwealth of (b) Interim formula. Except as (iii) Corrective actions to achieve Puerto Rico. provided in §§ 300.706–300.709, the compliance. (Authority: 20 U.S.C. 1411(h)(2)) Secretary allocates the amount (c) Complaints filed under this described in paragraph (a) of this section, and due process hearings under § 300.701 Grants to States. section among the States in accordance §§ 300.507 and 300.520–300.528. (1) If a (a) Purpose of grants. The Secretary with section 611(a)(3), (4), (5) and (b)(1), written complaint is received that is makes grants to States and the outlying (2) and (3) of the Act, as in effect prior also the subject of a due process hearing areas and provides funds to the to June 4, 1997, except that the under § 300.507 or §§ 300.520–300.528, Secretary of the Interior, to assist them determination of the number of children or contains multiple issues, of which to provide special education and related with disabilities receiving special one or more are part of that hearing, the services to children with disabilities in education and related services under State must set aside any part of the accordance with Part B of the Act. section 611(a)(3) of the Act (as then in complaint that is being addressed in the (b) Maximum amounts. The effect) may be calculated as of December due process hearing, until the maximum amount of the grant a State 1, or, at the State’s discretion, the last

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12466 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

Friday in October, of the fiscal year for § 300.708 Limitation. (b)(1) If the amount available for which the funds were appropriated. (a) Allocations under § 300.707 are allocations is equal to or less than the (Authority: 20 U.S.C. 1411(d)) subject to the following: amount allocated to the States for the (1) No State’s allocation may be less base year, each State is allocated the §§ 300.704±300.705 [Reserved] than its allocation for the preceding amount it received for the base year. (2) If the amount available is § 300.706 Permanent formula. fiscal year. (2) No State’s allocation may be less insufficient to make the allocations (a) Establishment of base year. The than the greatest of— described in paragraph (b)(1) of this Secretary allocates the amount (i) The sum of— section, those allocations are ratably described in § 300.703(a) among the (A) The amount it received for the reduced. States in accordance with §§ 300.706– base year; and (Authority: 20 U.S.C. 1411(e)(4)) 300.709 for each fiscal year beginning (B) One-third of one percent of the with the first fiscal year for which the amount by which the amount § 300.710 Allocation for State in which by- amount appropriated under 611(j) of the pass is implemented for private school appropriated under section 611(j) of the children with disabilities. Act is more than $4,924,672,200. Act exceeds the amount appropriated In determining the allocation under under section 611 of the Act for the base (b) Use of base year. (1) Definition. As §§ 300.700–300.709 of a State in which year; or used in this section, the term base year the Secretary will implement a by-pass (ii) The sum of— means the fiscal year preceding the first for private school children with (A) The amount it received for the fiscal year in which this section applies. disabilities under §§ 300.451–300.487, preceding fiscal year; and (2) Special rule for use of base year the Secretary includes in the State’s (B) That amount multiplied by the amount. If a State received any funds child count— under section 611 of the Act for the base percentage by which the increase in the (a) For the first year of a by-pass, the year on the basis of children aged 3 funds appropriated from the preceding actual or estimated number of private through 5, but does not make FAPE fiscal year exceeds 1.5 percent; or school children with disabilities (as available to all children with disabilities (iii) The sum of— defined in §§ 300.7(a) and 300.450) in aged 3 through 5 in the State in any (A) The amount it received for the the State, as of the preceding December subsequent fiscal year, the Secretary preceding fiscal year; and 1; and computes the State’s base year amount, (B) That amount multiplied by 90 (b) For succeeding years of a by-pass, solely for the purpose of calculating the percent of the percentage increase in the the number of private school children State’s allocation in that subsequent amount appropriated from the with disabilities who received special year under §§ 300.707–300.709, by preceding fiscal year. education and related services under the subtracting the amount allocated to the (b) Notwithstanding paragraph (a)(2) by-pass in the preceding year. of this section, no State’s allocation State for the base year on the basis of (Authority: 20 U.S.C. 1412(f)(2)) those children. under § 300.707 may exceed the sum of— § 300.711 Subgrants to LEAs. (Authority: 20 U.S.C. 1411(e)(1) and (2)) (1) The amount it received for the Each State that receives a grant under § 300.707 Increase in funds. preceding fiscal year; and section 611 of the Act for any fiscal year (2) That amount multiplied by the shall distribute in accordance with If the amount available for allocations sum of 1.5 percent and the percentage to States under § 300.706 is equal to or § 300.712 any funds it does not retain increase in the amount appropriated. under § 300.602 and is not required to greater than the amount allocated to the (c) If the amount available for States under section 611 of the Act for distribute under §§ 300.622 and 300.623 allocations to States under § 300.703 to LEAs in the State that have the preceding fiscal year, those and paragraphs (a) and (b) of this allocations are calculated as follows: established their eligibility under section is insufficient to pay those section 613 of the Act, and to State (a) Except as provided in § 300.708, allocations in full those allocations are agencies that received funds under the Secretary— ratably reduced, subject to paragraph section 614A(a) of the Act for fiscal year (1) Allocates to each State the amount (a)(1) of this section. 1997, as then in effect, and have it received for the base year; (Authority: 20 U.S.C. 1411(e)(3)(B) and (C)) established their eligibility under (2) Allocates 85 percent of any section 613 of the Act, for use in § 300.709 Decrease in funds. remaining funds to States on the basis accordance with Part B of the Act. If the amount available for allocations of their relative populations of children (Authority: 20 U.S.C. 1411(g)(1)) aged 3 through 21 who are of the same to States under § 300.706 is less than the age as children with disabilities for amount allocated to the States under § 300.712 Allocations to LEAs. whom the State ensures the availability section 611 of the Act for the preceding (a) Interim procedure. For each fiscal of FAPE under Part B of the Act; and fiscal year, those allocations are year for which funds are allocated to calculated as follows: (3) Allocates 15 percent of those States under § 300.703(b) each State (a) If the amount available for remaining funds to States on the basis shall allocate funds under § 300.711 in allocations is greater than the amount of their relative populations of children accordance with section 611(d) of the allocated to the States for the base year, described in paragraph (a)(2) of this Act, as in effect prior to June 4, 1997. each State is allocated the sum of— section who are living in poverty. (b) Permanent procedure. For each (1) The amount it received for the fiscal year for which funds are allocated (b) For the purpose of making grants base year; and to States under §§ 300.706–300.709, under this section, the Secretary uses (2) An amount that bears the same each State shall allocate funds under the most recent population data, relation to any remaining funds as the § 300.711 as follows: including data on children living in increase the State received for the (1) Base payments. The State first poverty, that are available and preceding fiscal year over the base year shall award each agency described in satisfactory to the Secretary. bears to the total of those increases for § 300.711 the amount that agency would (Authority: 20 U.S.C. 1411(e)(3)) all States. have received under this section for the

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00062 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12467 base year, as defined in § 300.706(b)(1), chapter 1 of title I of the Elementary and for any fiscal year under 611(j) of the if the State had distributed 75 percent Secondary Education Act of 1965 (as in Act, the Secretary reserves 1.226 percent of its grant for that year under section effect in fiscal year 1994) receives, from to provide assistance to the Secretary of § 300.703(b). the combination of funds under the Interior in accordance with this (2) Base payment adjustments. For § 300.602(a) and funds provided under section and § 300.716. any fiscal year after the base year fiscal § 300.711, an amount no less than— (b) Provision of amounts for year— (i) The number of children with assistance. The Secretary provides (i) If a new LEA is created, the State disabilities, aged 6 through 21, to whom amounts to the Secretary of the Interior shall divide the base allocation the agency was providing special to meet the need for assistance for the determined under paragraph (b)(1) of education and related services on education of children with disabilities this section for the LEAs that would December 1, or, at the State’s discretion, on reservations aged 5 to 21, inclusive, have been responsible for serving the last Friday in October, of the fiscal enrolled in elementary and secondary children with disabilities now being year for which the funds were schools for Indian children operated or served by the new LEA, among the new appropriated, subject to the limitation in funded by the Secretary of the Interior. LEA and affected LEAs based on the paragraph (b) of this section; multiplied The amount of the payment for any relative numbers of children with by fiscal year is equal to 80 percent of the disabilities ages 3 through 21, or ages 6 (ii) The per-child amount provided amount allotted under paragraph (a) of through 21 if a State has had its under that subpart for fiscal year 1994; this section for that fiscal year. payment reduced under § 300.706(b)(2), and (c) Calculation of number of children. currently provided special education by (2) May use funds under § 300.602(a) In the case of Indian students aged 3 to each of the LEAs; to ensure that each LEA that received 5, inclusive, who are enrolled in (ii) If one or more LEAs are combined fiscal year 1994 funds under that programs affiliated with the Bureau of into a single new LEA, the State shall subpart for children who had Indian Affairs (BIA) schools and that are combine the base allocations of the transferred from a State-operated or required by the States in which these merged LEAs; and State-supported school or program schools are located to attain or maintain (iii) If, for two or more LEAs, assisted under that subpart receives, State accreditation, and which schools geographic boundaries or administrative from the combination of funds available have this accreditation prior to the date responsibility for providing services to under § 300.602(a) and funds provided of enactment of the Individuals with children with disabilities ages 3 through under § 300.711, an amount for each Disabilities Education Act Amendments 21 change, the base allocations of child, aged 3 through 21 to whom the of 1991, the school may count those affected LEAs shall be redistributed agency was providing special education children for the purpose of distribution among affected LEAs based on the and related services on December 1, or, of the funds provided under this section relative numbers of children with at the State’s discretion, the last Friday to the Secretary of the Interior. disabilities ages 3 through 21, or ages 6 in October, of the fiscal year for which (d) Responsibility for meeting the through 21 if a State has had its the funds were appropriated, equal to requirements of Part B. The Secretary of payment reduced under § 300.706(b)(2), the per-child amount the agency the Interior shall meet all of the currently provided special education by received under that subpart for fiscal requirements of Part B of the Act for the each affected LEA. year 1994. children described in paragraphs (b) and (3) Allocation of remaining funds. The (b) The number of children counted (c) of this section, in accordance with State then shall— under paragraph (a)(1)(i) of this section § 300.260. (i) Allocate 85 percent of any may not exceed the number of children aged 3 through 21 for whom the agency (Authority: 20 U.S.C. 1411(c); 1411(i)(1)(A) remaining funds to those agencies on and (B)) the basis of the relative numbers of received fiscal year 1994 funds under children enrolled in public and private subpart 2 of Part D of chapter 1 of title § 300.716 Payments for education and elementary and secondary schools I of the Elementary and Secondary services for Indian children with disabilities within each agency’s jurisdiction; and Education Act of 1965 (as in effect in aged 3 through 5. (ii) Allocate 15 percent of those fiscal year 1994). (a) General. With funds appropriated remaining funds to those agencies in (Authority: 20 U.S.C. 1411(g)(3)) under 611(j) of the Act, the Secretary accordance with their relative numbers makes payments to the Secretary of the of children living in poverty, as § 300.714 Reallocation of LEA funds. Interior to be distributed to tribes or determined by the SEA. If an SEA determines that an LEA is tribal organizations (as defined under (iii) For the purposes of making grants adequately providing FAPE to all section 4 of the Indian Self- under this section, States must apply on children with disabilities residing in the Determination and Education a uniform basis across all LEAs the best area served by that agency with State Assistance Act) or consortia of those data that are available to them on the and local funds, the SEA may reallocate tribes or tribal organizations to provide numbers of children enrolled in public any portion of the funds under Part B for the coordination of assistance for and private elementary and secondary of the Act that are not needed by that special education and related services schools and the numbers of children local agency to provide FAPE to other for children with disabilities aged 3 living in poverty. LEAs in the State that are not through 5 on reservations served by (Authority: 20 U.S.C. 1411(g)(2)) adequately providing special education elementary and secondary schools for and related services to all children with Indian children operated or funded by § 300.713 Former Chapter 1 State disabilities residing in the areas they the Department of the Interior. The agencies. serve. amount of the payments under (a) To the extent necessary, the (Authority: 20 U.S.C. 1411(g)(4)) paragraph (b) of this section for any State— fiscal year is equal to 20 percent of the (1) Shall use funds that are available § 300.715 Payments to the Secretary of the amount allotted under § 300.715(a). under § 300.602(a) to ensure that each Interior for the education of Indian children. (b) Distribution of funds. The State agency that received fiscal year (a) Reserved amounts for Secretary of Secretary of the Interior shall distribute 1994 funds under subpart 2 of Part D of Interior. From the amount appropriated the total amount of the payment under

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00063 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12468 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations paragraph (a) of this section by Act, the Secretary reserves not more (d) Termination of eligibility. allocating to each tribe or tribal than one percent, which must be used— Notwithstanding any other provision of organization an amount based on the (a) To provide assistance to the law, the freely associated States may not number of children with disabilities outlying areas in accordance with their receive any funds under Part B of the ages 3 through 5 residing on respective populations of individuals Act for any program year that begins reservations as reported annually, aged 3 through 21; and after September 30, 2001. divided by the total of those children (b) For fiscal years 1998 through 2001, (e) Administrative costs. The served by all tribes or tribal to carry out the competition described Secretary may provide not more than organizations. in § 300.719, except that the amount five percent of the amount reserved for (c) Submission of information. To reserved to carry out that competition grants under this section to pay the receive a payment under this section, may not exceed the amount reserved for administrative costs of the Pacific the tribe or tribal organization shall fiscal year 1996 for the competition Region Educational Laboratory under submit the figures to the Secretary of the under Part B of the Act described under paragraph (b) of this section. Interior as required to determine the the heading ‘‘SPECIAL EDUCATION’’ in (f) Eligibility for award. An outlying amounts to be allocated under Public Law 104–134. area is not eligible for a competitive paragraph (b) of this section. This (Authority: 20 U.S.C. 1411(b)(1)) award under § 300.719 unless it receives information must be compiled and assistance under § 300.717(a). submitted to the Secretary. § 300.718 Outlying areaÐdefinition. (d) Use of funds. (1) The funds (Authority: 20 U.S.C. 1411(b)(2) and (3)) As used in this part, the term outlying received by a tribe or tribal organization area means the United States Virgin § 300.720 Special rule. must be used to assist in child find, Islands, Guam, American Samoa, and The provisions of Public Law 95–134, screening, and other procedures for the the Commonwealth of the Northern permitting the consolidation of grants early identification of children aged 3 Mariana Islands. by the outlying areas, do not apply to through 5, parent training, and the (Authority: 20 U.S.C. 1402(18)) funds provided to those areas or to the provision of direct services. These freely associated States under Part B of activities may be carried out directly or § 300.719 Limitation for freely associated the Act. through contracts or cooperative States. agreements with the BIA, LEAs, and (Authority: 20 U.S.C. 1411(b)(4)) (a) Competitive grants. The Secretary other public or private nonprofit § 300.721 [Reserved] organizations. The tribe or tribal uses funds described in § 300.717(b) to organization is encouraged to involve award grants, on a competitive basis, to § 300.722 Definition. Guam, American Samoa, the Indian parents in the development and As used in this part, the term freely implementation of these activities. Commonwealth of the Northern Mariana Islands, and the freely associated States associated States means the Republic of (2) The entities shall, as appropriate, the Marshall Islands, the Federated make referrals to local, State, or Federal to carry out the purposes of this part. (b) Award basis. The Secretary awards States of Micronesia, and the Republic entities for the provision of services or of Palau. further diagnosis. grants under paragraph (a) of this (e) Biennial report. To be eligible to section on a competitive basis, pursuant (Authority: 20 U.S.C. 1411(b)(6)) receive a grant pursuant to paragraph (a) to the recommendations of the Pacific Reports of this section, the tribe or tribal Region Educational Laboratory in organization shall provide to the Honolulu, Hawaii. Those § 300.750 Annual report of children Secretary of the Interior a biennial recommendations must be made by servedÐreport requirement. report of activities undertaken under experts in the field of special education (a) The SEA shall report to the this paragraph, including the number of and related services. Secretary no later than February 1 of contracts and cooperative agreements (c) Assistance requirements. Any each year the number of children with entered into, the number of children freely associated State that wishes to disabilities aged 3 through 21 residing contacted and receiving services for receive funds under Part B of the Act in the State who are receiving special each year, and the estimated number of shall include, in its application for education and related services. children needing services during the assistance— (b) The SEA shall submit the report two years following the one in which (1) Information demonstrating that it on forms provided by the Secretary. the report is made. The Secretary of the will meet all conditions that apply to (Authority: 20 U.S.C. 1411(d)(2); 1418(a)) Interior shall include a summary of this States under Part B of the Act; information on a biennial basis in the (2) An assurance that, § 300.751 Annual report of children report to the Secretary required under notwithstanding any other provision of servedÐinformation required in the report. section 611(i) of the Act. The Secretary Part B of the Act, it will use those funds (a) For any year the SEA shall include may require any additional information only for the direct provision of special in its report a table that shows the from the Secretary of the Interior. education and related services to number of children with disabilities (f) Prohibitions. None of the funds children with disabilities and to receiving special education and related allocated under this section may be enhance its capacity to make FAPE services on December 1, or at the State’s used by the Secretary of the Interior for available to all children with discretion on the last Friday in October, administrative purposes, including disabilities; of that school year— child count and the provision of (3) The identity of the source and (1) Aged 3 through 5; technical assistance. amount of funds, in addition to funds (2) Aged 6 through 17; and (Authority: 20 U.S.C. 1411(i)(3)) under Part B of the Act, that it will make (3) Aged 18 through 21. available to ensure that FAPE is (b) For the purpose of this part, a § 300.717 Outlying areas and freely available to all children with disabilities child’s age is the child’s actual age on associated States. within its jurisdiction; and the date of the child count: December 1, From the amount appropriated for any (4) Such other information and or, at the State’s discretion, the last fiscal year under section 611(j) of the assurances as the Secretary may require. Friday in October.

VerDate 03-MAR-99 17:45 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00064 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm01 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12469

(c) Reports must also include the Department of Interior, the Department (Authority: 20 U.S.C. 1418(c)) number of those children with of Defense, or the Department of § 300.756 Acquisition of equipment; disabilities aged 3 through 21 for each Education. However, the State may construction or alteration of facilities. year of age (3, 4, 5, etc.) within each count children covered under disability category, as defined in the § 300.184(c)(2). (a) General. If the Secretary determines that a program authorized definition of ‘‘children with (Authority: 20 U.S.C. 1411(d)(2); 1417(b)) disabilities’’ in § 300.7; and under Part B of the Act would be (d) The Secretary may permit the § 300.754 Annual report of children improved by permitting program funds collection of the data in paragraph (c) of servedÐother responsibilities of the SEA. to be used to acquire appropriate this section through sampling. In addition to meeting the other equipment, or to construct new facilities (e) The SEA may not report a child requirements of §§ 300.750–300.753, the or alter existing facilities, the Secretary under paragraph (c) of this section SEA shall— may allow the use of those funds for under more than one disability category. (a) Establish procedures to be used by those purposes. (f) If a child with a disability has more LEAs and other educational institutions (b) Compliance with certain than one disability, the SEA shall report in counting the number of children with regulations. Any construction of new that child under paragraph (c) of this disabilities receiving special education facilities or alteration of existing section in accordance with the and related services; facilities under paragraph (a) of this following procedure: (b) Set dates by which those agencies section must comply with the (1) If a child has only two disabilities and institutions must report to the SEA requirements of— and those disabilities are deafness and to ensure that the State complies with (1) Appendix A of part 36 of title 28, blindness, and the child is not reported § 300.750(a); Code of Federal Regulations (commonly as having a developmental delay, that (c) Obtain certification from each known as the ‘‘Americans with child must be reported under the agency and institution that an Disabilities Accessibility Guidelines for category ‘‘deaf-blindness’’. unduplicated and accurate count has Buildings and Facilities’’); or (2) A child who has more than one been made; (2) Appendix A of part 101–19.6 of disability and is not reported as having (d) Aggregate the data from the count title 41, Code of Federal Regulations deaf-blindness or as having a obtained from each agency and (commonly known as the ‘‘Uniform developmental delay must be reported institution, and prepare the reports Federal Accessibility Standards’’). required under §§ 300.750–300.753; and under the category ‘‘multiple (Authority: 20 U.S.C. 1405) disabilities’’. (e) Ensure that documentation is maintained that enables the State and Appendix A to Part 300—Notice of (Authority: 20 U.S.C. 1411(d)(2); 1418(a) and (b)) the Secretary to audit the accuracy of Interpretation the count. I. Involvement and Progress of Each Child § 300.752 Annual report of children (Authority: 20 U.S.C. 1411(d)(2); 1417(b)) With a Disability in the General Curriculum servedÐcertification. § 300.755 Disproportionality. 1. What are the major Part B IEP The SEA shall include in its report a requirements that govern the involvement certification signed by an authorized (a) General. Each State that receives and progress of children with disabilities in official of the agency that the assistance under Part B of the Act, and the general curriculum? information provided under § 300.751(a) the Secretary of the Interior, shall 2. Must a child’s IEP address his or her is an accurate and unduplicated count provide for the collection and involvement in the general curriculum, of children with disabilities receiving examination of data to determine if regardless of the nature and severity of the special education and related services significant disproportionality based on child’s disability and the setting in which the on the dates in question. race is occurring in the State or in the child is educated? 3. What must public agencies do to meet (Authority: 20 U.S.C. 1411(d)(2); 1417(b)) schools operated by the Secretary of the Interior with respect to— the requirements at §§ 300.344(a)(2) and 300.346(d) regarding the participation of a § 300.753 Annual report of children (1) The identification of children as ‘‘regular education teacher’’ in the servedÐcriteria for counting children. children with disabilities, including the development review, and revision of the (a) The SEA may include in its report identification of children as children IEPs, for children age 3 through 5 who are children with disabilities who are with disabilities in accordance with a receiving special education and related enrolled in a school or program that is particular impairment described in services? operated or supported by a public section 602(3) of the Act; and 4. Must the measurable annual goals in a agency, and that— (2) The placement in particular child’s IEP address all areas of the general (1) Provides them with both special educational settings of these children. curriculum, or only those areas in which the education and related services that meet (b) Review and revision of policies, child’s involvement and progress are affected by the child’s disability? State standards; practices, and procedures. In the case of (2) Provides them only with special a determination of significant II. Involvement of Parents and Students education, if a related service is not disproportionality with respect to the 5. What is the role of the parents, including required, that meets State standards; or identification of children as children surrogate parents, in decisions regarding the (3) In the case of children with with disabilities, or the placement in educational program of their children? disabilities enrolled by their parents in particular educational settings of these 6. What are the Part B requirements private schools, provides them with children, in accordance with paragraph regarding the participation of a student special education or related services (a) of this section, the State or the (child) with a disability in an IEP meeting? under §§ 300.452–300.462 that meet Secretary of the Interior shall provide 7. Must the public agency inform the State standards. for the review and, if appropriate parents of who will be at the IEP meeting? 8. Do parents have the right to a copy of (b) The SEA may not include children revision of the policies, procedures, and their child’s IEP? with disabilities in its report who are practices used in the identification or 9. What is a public agency’s responsibility receiving special education funded placement to ensure that the policies, if it is not possible to reach consensus on solely by the Federal Government, procedures, and practices comply with what services should be included in a child’s including children served by the the requirements of Part B of the Act. IEP?

VerDate 03-MAR-99 18:40 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00065 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm01 PsN: 12MRR2 12470 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

10. Does Part B require that public agencies regular education teachers be members of the Introduction inform parents regarding the educational child’s IEP team? The IEP requirements under Part B of the 26. How should a public agency determine progress of their children with disabilities? IDEA emphasize the importance of three core which regular education teacher and special III. Preparing Students With Disabilities for education teacher will members of the IEP concepts: (1) the involvement and progress of Employment and Other Post-School team for a particular child with a disability? each child with a disability in the general Experiences 27. For a child whose primary disability is curriculum including addressing the unique 11. What must the IEP team do to meet the a speech impairment, may a public agency needs that arise out of the child’s disability; requirements that the IEP include a statement meet its responsibility under § 300.344(a)(3) (2) the involvement of parents and students, of ‘‘transition service needs’’ beginning at age to ensure that the IEP team includes ‘‘at least together with regular and special education 14 (§ 300.347(b)(1), and a statement of one special education teacher, or, if personnel, in making individual decisions to ‘‘needed transition services’’ beginning at age appropriate, at least one special education support each student’s (child’s) educational 16 (§ 300.347(b)(2)? provider of the child’’ by including a speech- success, and (3) the preparation of students 12. Must the IEP for each student with a language pathologist on the IEP team? with disabilities for employment and other disability, beginning no later than age 16, 28. Do public agencies and parents have post-school activities. include all ‘‘needed transition services,’’ as the option of having any individual of their The first three sections of this Appendix identified by the IEP team and consistent choice attend a child’s IEP meeting as (I–III) provide guidance regarding the IEP with the definition at § 300.29, even if an participants on their child’s IEP team? requirements as they relate to the three core 29. Can parents or public agencies bring agency other than the public agency will concepts described above. Section IV their attorneys to IEP meetings, and, if so provide those services? What is the public addresses other questions regarding the agency’s responsibility if another agency fails under what circumstances? Are attorney’s fees available for parents’ attorneys if the development and content of IEPs, including to provide agreed-upon transition services? questions about the timelines and 13. Under what circumstances must a parents are prevailing parties in actions or proceedings brought under Part B? responsibility for developing and public agency invite representatives from implementing IEPs, participation in IEP other agencies to an IEP meeting at which a 30. Must related services personnel attend IEP meetings? meetings, and IEP content. Section IV also child’s need for transition services will be 31. Must the public agency ensure that all addresses questions on other selected considered? services specified in a child’s IEP are requirements under IDEA. IV. Other Questions Regarding provided? I. Involvement and Progress of Each Child Implementation of Idea 32. Is it permissible for an agency to have With a Disability in the General Curriculum 14. For a child with a disability receiving the IEP completed before the IEP meeting special education for the first time, when begins? In enacting the IDEA Amendments of 1997, must an IEP be developed—before placement 33. Must a public agency include the Congress found that research, or after placement? transportation in a child’s IEP as a related demonstration, and practice over the past 20 service? 15. Who is responsible for ensuring the years in special education and related 34. Must a public agency provide related development of IEPs for children with disciplines have demonstrated that an services that are required to assist a child disabilities served by a public agency other effective educational system now and in the with a disability to benefit from special than an LEA? future must maintain high academic education, whether or not those services are 16. For a child placed out of State by an standards and clear performance goals for included in the list of related services in educational or non-educational State or local children with disabilities, consistent with the § 300.24? agency, is the placing or receiving State standards and expectations for all students in 35. Must the IEP specify the amount of responsible for the child’s IEP? the educational system, and provide for services or may it simply list the services to 17. If a disabled child has been receiving appropriate and effective strategies and be provided? methods to ensure that students who are special education from one public agency 36. Under what circumstances is a public and transfers to another public agency in the agency required to permit a child with a children with disabilities have maximum same State, must the new public agency disability to use a school-purchased assistive opportunities to achieve those standards and develop an IEP before the child can be placed technology device in the child’s home or in goals. [Section 651(a)(6)(A) of the Act.] in a special education program? another setting? Accordingly, the evaluation and IEP 18. What timelines apply to the 37. Can the IEP team also function as the provisions of Part B place great emphasis on development and implementation of an group making the placement decision for a the involvement and progress of children initial IEP for a child with a disability? child with a disability? with disabilities in the general curriculum. 19. Must a public agency hold separate 38. If a child’s IEP includes behavioral (The term ‘‘general curriculum,’’ as used in meetings to determine a child’s eligibility for strategies to address a particular behavior, these regulations, including this Appendix, special education and related services, can a child ever be suspended for engaging refers to the curriculum that is used with develop the child’s IEP, and determine the in that behavior? nondisabled children.) child’s placement, or may the agency meet all 39. If a child’s behavior in the regular While the Act and regulations recognize of these requirements in a single meeting? classroom, even with appropriate that IEP teams must make individualized 20. How frequently must a public agency interventions, would significantly impair the decisions about the special education and conduct meetings to review, and if learning of others, can the group that makes related services, and supplementary aids and appropriate revise, the IEP for each child the placement decision determine that services, provided to each child with a with a disability? placement in the regular classroom is disability, they are driven by IDEA’s strong 21. May IEP meetings be audio or video- inappropriate for that child? preference that, to the maximum extent tape-recorded? 40. May school personnel during a school 22. Who can serve as the representative of appropriate, children with disabilities be year implement more than one short-term educated in regular classes with their the public agency at an IEP meeting? removal of a child with disabilities from his nondisabled peers with appropriate 23. For a child with a disability being or her classroom or school for misconduct? supplementary aids and services. considered for initial placement in special Authority: Part B of the Individuals with education, which teacher or teachers should Disabilities Education Act (20 U.S.C. 1401, et In many cases, children with disabilities attend the IEP meeting? seq.), unless otherwise noted. will need appropriate supports in order to 24. What is the role of a regular education successfully progress in the general teacher in the development, review, and Individualized Education Programs (IEPS) curriculum, participate in State and district- revision of the IEP for a child who is, or may and Other Selected ImplementatioN Issues wide assessment programs, achieve the be, participating in the regular education Interpretation of IEP and Other selected measurable goals in their IEPs, and be environment? Requirements under Part B of the Individuals educated together with their nondisabled 25. If a child with a disability attends with Disabilities Education Act (IDEA; Part peers. Accordingly, the Act requires the IEP several regular classes, must all of the child’s B) team to determine, and the public agency to

VerDate 03-MAR-99 17:45 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00066 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm01 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12471 provide, the accommodations, modifications, needs that result from the child’s disability only when the nature or severity of the supports, and supplementary aids and to enable the child to be involved in and child’s disability is such that education in services, needed by each child with a progress in the general curriculum; and (ii) regular classes with the use of supplementary disability to successfully be involved in and meeting each of the child’s other educational aids and services cannot be achieved progress in the general curriculum achieve needs that result from the child’s disability. satisfactorily (§ 300.550(b)(1)); and the goals of the IEP, and successfully As noted above, each annual goal must (3) to the maximum extent appropriate to demonstrate his or her competencies in State include either short-term objectives or the child’s needs, each child with a disability benchmarks. The purpose of both is to enable and district-wide assessments. participates with nondisabled children in 1. What are the major Part B IEP a child’s teacher(s), parents, and others nonacademic and extracurricular services requirements that govern the involvement involved in developing and implementing and activities (§ 300.553). and progress of children with disabilities in the child’s IEP, to gauge, at intermediate the general curriculum? times during the year, how well the child is All services and educational placements progressing toward achievement of the under Part B must be individually Present Levels of Educational Performance annual goal. IEP teams may continue to determined in light of each child’s unique Section 300.347(a)(1) requires that the IEP develop short-term instructional objectives, abilities and needs, to reasonably promote for each child with a disability include that generally break the skills described in the child’s educational success. Placing ‘‘* * * a statement of the child’s present the annual goal down into discrete children with disabilities in this manner levels of educational performance, components. The revised statute and should enable each disabled child to meet including—(i) how the child’s disability regulations also provide that, as an high expectations in the future. affects the child’s involvement and progress alternative, IEP teams may develop Although Part B requires that a child with in the general curriculum; or (ii) for benchmarks, which can be thought of as a disability not be removed from the regular preschool children, as appropriate, how the describing the amount of progress the child educational environment if the child’s child’s disability affects the child’s is expected to make within specified education can be achieved satisfactorily in segments of the year. Generally, benchmarks participation in appropriate activities * * *’’ regular classes with the use of supplementary establish expected performance levels that (‘‘Appropriate activities’’ in this context aids and services, Part B’s LRE principle is refers to age-relevant developmental abilities allow for regular checks of progress that intended to ensure that a child with a or milestones that typically developing coincide with the reporting periods for disability is served in a setting where the children of the same age would be informing parents of their child’s progress performing or would have achieved.) toward achieving the annual goals. An IEP child can be educated successfully. Even The IEP team’s determination of how each team may use either short term objectives or though IDEA does not mandate regular class child’s disability affects the child’s benchmarks or a combination of the two placement for every disabled student, IDEA involvement and progress in the general depending on the nature of the annual goals presumes that the first placement option curriculum is a primary consideration in the and the needs of the child. considered for each disabled student by the development of the child’s IEP. In assessing Special Education and Related Services and student’s placement team, which must children with disabilities, school districts Supplementary Aids and Services include the parent, is the school the child may use a variety of assessment techniques would attend if not disabled, with to determine the extent to which these The requirements regarding services appropriate supplementary aids and services children can be involved and progress in the provided to address a child’s present levels to facilitate such placement. Thus, before a of educational performance and to make general curriculum, such as criterion- disabled child can be placed outside of the progress toward the identified goals reinforce referenced tests, standard achievement tests, the emphasis on progress in the general regular educational environment, the full diagnostic tests, other tests, or any curriculum, as well as maximizing the extent range of supplementary aids and services that combination of the above. to which children with disabilities are if provided would facilitate the student’s The purpose of using these assessments is educated with nondisabled children. Section placement in the regular classroom setting to determine the child’s present levels of 300.347(a)(3) requires that the IEP include: must be considered. Following that educational performance and areas of need consideration, if a determination is made that arising from the child’s disability so that a statement of the special education and related services and supplementary aids and particular disabled student cannot be approaches for ensuring the child’s educated satisfactorily in the regular involvement and progress in the general services to be provided to the child, or on behalf of the child, and a statement of the educational environment, even with the curriculum and any needed adaptations or provision of appropriate supplementary aids modifications to that curriculum can be program modifications or supports for school personnel that will be provided for the and services, that student then could be identified. placed in a setting other than the regular Measurable Annual Goals, including child—(i) to advance appropriately toward classroom. Later, if it becomes apparent that Benchmarks or Short-term ojectives attaining the annual goals; (ii) to be involved the child’s IEP can be carried out in a less Measurable annual goals, including and progress in the general curriculum * ** restrictive setting, with the provision of benchmarks or short-term objectives, are and to participate in extracurricular and other nonacademic activities; and (iii) to be critical to the strategic planning process used appropriate supplementary aids and services, educated and participate with other children to develop and implement the IEP for each if needed, Part B would require that the with disabilities and nondisabled children in child with a disability. Once the IEP team has child’s placement be changed from the more [extracurricular and other nonacademic developed measurable annual goals for a restrictive setting to a less restrictive setting. activities] * * * [Italics added.] child, the team (1) can develop strategies that In all cases, placement decisions must be will be most effective in realizing those goals Extent to Which Child Will Participate With individually determined on the basis of each and (2) must develop either measurable, Nondisabled Children child’s abilities and needs, and not solely on factors such as category of disability, intermediate steps (short-term objectives) or Section 300.347(a)(4) requires that each significance of disability, availability of major milestones (benchmarks) that will child’s IEP include ‘‘An explanation of the special education and related services, enable parents, students, and educators to extent, if any, to which the child will not monitor progress during the year, and, if participate with nondisabled children in the configuration of the service delivery system, appropriate, to revise the IEP consistent with regular class and in [extracurricular and availability of space, or administrative the student’s instructional needs. other nonacademic] activities * * *’’ This is convenience. Rather, each student’s IEP The strong emphasis in Part B on linking consistent with the least restrictive forms the basis for the placement decision. the educational program of children with environment (LRE) provisions at §§ 300.550– Further, a student need not fail in the disabilities to the general curriculum is 300.553, which include requirements that: regular classroom before another placement reflected in § 300.347(a)(2), which requires (1) each child with a disability be educated can be considered. Conversely, IDEA does that the IEP include: with nondisabled children to the maximum not require that a student demonstrate a statement of measurable annual goals, extent appropriate (§ 300.550(b)(1)); achievement of a specific performance level including benchmarks or short-term (2) each child with a disability be removed as a prerequisite for placement into a regular objectives, related to—(i) meeting the child’s from the regular educational environment classroom.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00067 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12472 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

Participation in State or District-Wide Thus, the IEP team for each child with a areas of the general curriculum in which the Assessments of Student Achievement disability must make an individualized child’s disability does not affect the child’s Consistent with § 300.138(a), which sets determination regarding (1) how the child ability to be involved in and progress in the forth a presumption that children with will be involved and progress in the general general curriculum. If a child with a disabilities will be included in general State curriculum and what needs that result from disability needs only modifications or and district-wide assessment programs, and the child’s disability must be met to facilitate accommodations in order to progress in an provided with appropriate accommodations that participation; (2) whether the child has area of the general curriculum, the IEP does if necessary, § 300.347(a)(5) requires that the any other educational needs resulting from not need to include a goal for that area; IEP for each student with a disability his or her disability that also must be met; however, the IEP would need to specify those include: ‘‘(i) a statement of any individual and (3) what special education and other modifications or accommodations. modifications in the administration of State services and supports must be described in Public agencies often require all children, or district-wide assessments of student the child’s IEP to address both sets of needs including children with disabilities, to achievement that are needed in order for the (consistent with § 300.347(a)). For example, if demonstrate mastery in a given area of the child to participate in the assessment; and (ii) the IEP team determines that in order for a general curriculum before allowing them to if the IEP team determines that the child will child who is deaf to participate in the general progress to the next level or grade in that not participate in a particular State or curriculum he or she needs sign language area. Thus, in order to ensure that each child district-wide assessment of student and materials which reflect his or her with a disability can effectively demonstrate achievement (or part of an assessment of language development, those needs (relating competencies in an applicable area of the student achievement), a statement of—(A) to the child’s participation in the general general curriculum, it is important for the IEP Why that assessment is not appropriate for curriculum) must be addressed in the child’s team to consider the accommodations and the child; and (B) How the child will be IEP. In addition, if the team determines that modifications that the child needs to assist assessed.’’ the child also needs to expand his or her him or her in demonstrating progress in that vocabulary in sign language that service must area. Regular Education Teacher Participation in also be addressed in the applicable the Development, Review, and Revision of components of the child’s IEP. The IEP team II. Involvement of Parents and Students IEPs may also wish to consider whether there is The Congressional Committee Reports on Very often, regular education teachers play a need for members of the child’s family to the IDEA Amendments of 1997 express the a central role in the education of children receive training in sign language in order for view that the Amendments provide an with disabilities (H. Rep. No. 105–95, p. 103 the child to receive FAPE. opportunity for strengthening the role of (1997); S. Rep. No. 105–17, p. 23 (1997)) and 3. What must public agencies do to meet parents, and emphasize that one of the have important expertise regarding the the requirements at §§ 300.344(a)(2) and purposes of the Amendments is to expand general curriculum and the general education 300.346(d) regarding the participation of a opportunities for parents and key public environment. Further, with the emphasis on ‘‘regular education teacher’’ in the agency staff (e.g., special education, related involvement and progress in the general development, review, and revision of IEPs, services, regular education, and early curriculum added by the IDEA Amendments for children aged 3 through 5 who are intervention service providers, and other of 1997, regular education teachers have an receiving preschool special education personnel) to work in new partnerships at increasingly critical role (together with services? both the State and local levels (H. Rep. 105– special education and related services If a public agency provides ‘‘regular 95, p. 82 (1997); S. Rep. No. 105–17, p. 4 and personnel) in implementing the program of education’’ preschool services to non- 5 (1997)). Accordingly, the IDEA FAPE for most children with disabilities, as disabled children, then the requirements of Amendments of 1997 require that parents described in their IEPs. §§ 300.344(a)(2) and 300.346(d) apply as they have an opportunity to participate in Accordingly, the IDEA Amendments of do in the case of older children with meetings with respect to the identification, 1997 added a requirement that each child’s disabilities. If a public agency makes evaluation, and educational placement of the IEP team must include at least one regular kindergarten available to nondisabled child, and the provision of FAPE to the child. education teacher of the child, if the child is, children, then a regular education (§ 300.501(a)(2)). Thus, parents must now be or may be, participating in the regular kindergarten teacher could appropriately be part of: (1) the group that determines what education environment (see § 300.344(a)(2)). the regular education teacher who would be additional data are needed as part of an (See also §§ 300.346(d) on the role of a a member of the IEP team, and, as evaluation of their child (§ 300.533(a)(1)); (2) regular education teacher in the development, review and revision of IEPs.) appropriate, participate in IEP meetings, for the team that determines their child’s 2. Must a child’s IEP address his or her a kindergarten-aged child who is, or may be, eligibility (§ 300.534(a)(1)); and (3) the group involvement in the general curriculum, participating in the regular education that makes decisions on the educational regardless of the nature and severity of the environment. placement of their child (§ 300.501(c)). child’s disability and the setting in which the If a public agency does not provide regular In addition, the concerns of parents and child is educated? preschool education services to nondisabled the information that they provide regarding Yes. The IEP for each child with a children, the agency could designate an their children must be considered in disability (including children who are individual who, under State standards, is developing and reviewing their children’s educated in separate classrooms or schools) qualified to serve nondisabled children of the IEPs (§§ 300.343(c)(iii) and 300.346(a)(1)(i) must address how the child will be involved same age. and (b)); and the requirements for keeping and progress in the general curriculum. 4. Must the measurable annual goals in a parents informed about the educational However, the Part B regulations recognize child’s IEP address all areas of the general progress of their children, particularly as it that some children have other educational curriculum, or only those areas in which the relates to their progress in the general needs resulting from their disability that also child’s involvement and progress are affected curriculum, have been strengthened must be met, even though those needs are not by the child’s disability? (§ 300.347(a)(7)). directly linked to participation in the general Section 300.347(a)(2) requires that each The IDEA Amendments of 1997 also curriculum. child’s IEP include ‘‘A statement of contain provisions that greatly strengthen the Accordingly, § 300.347(a)(1)(2) requires measurable annual goals, including involvement of students with disabilities in that each child’s IEP include: benchmarks or short-term objectives, related decisions regarding their own futures, to A statement of measurable annual goals, to—(i) meeting the child’s needs that result facilitate movement from school to post- including benchmarks or short-term from the child’s disability to enable the child school activities. For example, those objectives related to—(i) Meeting the child’s to be involved in and progress in the general amendments (1) retained, essentially needs that result from the child’s disability curriculum ** *; and (ii) meeting each of verbatim, the ‘‘transition services’’ to enable the child to be involved in and the child’s other educational needs that requirements from the IDEA Amendments of progress in the general curriculum; and (ii) result from the child’s disability. . . .’’ 1990 (which provide that a statement of meeting each of the child’s other educational (Italics added). needed transition services must be in the IEP needs that result from the child’s disability. Thus, a public agency is not required to of each student with a disability, beginning [Italics added.] include in an IEP annual goals that relate to no later than age 16); and (2) significantly

VerDate 03-MAR-99 18:40 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00068 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm01 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12473 expanded those provisions by adding a new • Have an opportunity to participate in parents should discuss the appropriateness of annual requirement for the IEP to include meetings with respect to the identification, the child’s participation before a decision is ‘‘transition planning’’ activities for students evaluation, and educational placement of made, in order to help the parents determine beginning at age 14. (See section IV of this their child, and the provision of FAPE to the whether or not the child’s attendance would appendix for a description of the transition child (including IEP meetings) (§§ 300.501(b), be (1) helpful in developing the IEP or (2) services requirements and definition.) 300.344(a)(1), and 300.517; directly beneficial to the child or both. The With respect to student involvement in • Be part of the groups that determine agency should inform the parents before each decisions regarding transition services, what additional data are needed as part of an IEP meeting—as part of notification under § 300.344(b) provides that (1) ‘‘the public evaluation of their child (§ 300.533(a)(1)), § 300.345(a)(1)—that they may invite their agency shall invite a student with a disability and determine their child’s eligibility child to participate. of any age to attend his or her IEP meeting (§ 300.534(a)(1)) and educational placement 7. Must the public agency inform the if a purpose of the meeting will be the (§ 300.501(c)); parents of who will be at the IEP meeting? consideration of—(i) The student’s transition • Have their concerns and the information Yes. In notifying parents about the services needs under § 300.347(b)(1); or (ii) that they provide regarding their child meeting, the agency ‘‘must indicate the The needed transition services for the considered in developing and reviewing their purpose, time, and location of the meeting, student under § 300.347(b)(2); or (iii) Both;’’ child’s IEPs (§§ 300.343(c)(iii) and and who will be in attendance.’’ and (2) ‘‘If the student does not attend the 300.346(a)(1)(i) and (b)); and (§ 300.345(b), italics added.) In addition, if a IEP meeting, the public agency shall take • Be regularly informed (by such means as purpose of the IEP meeting will be the other steps to ensure that the student’s periodic report cards), as specified in their consideration of a student’s transition preferences and interests are considered.’’ child’s IEP, at least as often as parents are services needs or needed transition services (§ 300.344(b)(2)). informed of their nondisabled children’s under § 300.347(b)(1) or (2) or both, the The IDEA Amendments of 1997 also give progress, of their child’s progress toward the notice must also inform the parents that the States the authority to elect to transfer the annual goals in the IEP and the extent to agency is inviting the student, and identify rights accorded to parents under Part B to which that progress is sufficient to enable the any other agency that will be invited to send each student with a disability upon reaching child to achieve the goals by the end of the a representative. the age of majority under State law (if the year (§ 300.347(a)(7)). The public agency also must inform the student has not been determined A surrogate parent is a person appointed to parents of the right of the parents and the incompetent under State law) (§ 300.517). represent the interests of a child with a agency to invite other individuals who have (Part B requires that if the rights transfer to disability in the educational decision-making knowledge or special expertise regarding the the student, the public agency must provide process when no parent (as defined at child, including related services personnel as any notice required under Part B to both the § 300.20) is known, the agency, after appropriate to be members of the IEP team. student and the parents.) If the State elects reasonable efforts, cannot locate the child’s (§ 300.345(b)(1)(ii).) to provide for the transfer of rights from the parents, or the child is a ward of the State It also may be appropriate for the agency parents to the student at the age of majority, under the laws of the State. A surrogate to ask the parents to inform the agency of any the IEP must, beginning at least one year parent has all of the rights and individuals the parents will be bringing to before a student reaches the age of majority under State law, include a statement that the responsibilities of a parent under Part B the meeting. Parents are encouraged to let the student has been informed of any rights that (§ 300.515.) agency know whom they intend to bring. will transfer to him or her upon reaching the 6. What are the Part B requirements Such cooperation can facilitate arrangements age of majority. (§ 300.347(c)). regarding the participation of a student for the meeting, and help ensure a The IDEA Amendments of 1997 also (child) with a disability in an IEP meeting? productive, child-centered meeting. permit, but do not require, States to establish If a purpose of an IEP meeting for a student 8. Do parents have the right to a copy of a procedure for appointing the parent, or with a disability will be the consideration of their child’s IEP? another appropriate individual if the parent the student’s transition services needs or Yes. Section 300.345(f) states that the is not available, to represent the educational needed transition services under public agency shall give the parent a copy of interests of a student with a disability who § 300.347(b)(1) or (2), or both, the public the IEP at no cost to the parent. has reached the age of majority under State agency must invite the student and, as part 9. What is a public agency’s responsibility law and has not been determined to be of the notification to the parents of the IEP if it is not possible to reach consensus on incompetent, but who is determined not to meeting, inform the parents that the agency what services should be included in a child’s have the ability to provide informed consent will invite the student to the IEP meeting. IEP? with respect to his or her educational If the student does not attend, the public The IEP meeting serves as a program. agency must take other steps to ensure that communication vehicle between parents and 5. What is the role of the parents, including the student’s preferences and interests are school personnel, and enables them, as equal surrogate parents, in decisions regarding the considered. (See § 300.344(b)). participants, to make joint, informed educational program of their children? Section § 300.517 permits, but does not decisions regarding the (1) child’s needs and The parents of a child with a disability are require, States to transfer procedural rights appropriate goals; (2) extent to which the expected to be equal participants along with under Part B from the parents to students child will be involved in the general school personnel, in developing, reviewing, with disabilities who reach the age of curriculum and participate in the regular and revising the IEP for their child. This is majority under State law, if they have not education environment and State and an active role in which the parents (1) been determined to be incompetent under district-wide assessments; and (3) services provide critical information regarding the State law. If those rights are to be transferred needed to support that involvement and strengths of their child and express their from the parents to the student, the public participation and to achieve agreed-upon concerns for enhancing the education of their agency would be required to ensure that the goals. Parents are considered equal partners child; (2) participate in discussions about the student has the right to participate in IEP with school personnel in making these child’s need for special education and related meetings set forth for parents in § 300.345. decisions, and the IEP team must consider services and supplementary aids and However, at the discretion of the student or the parents’ concerns and the information services; and (3) join with the other the public agency, the parents also could that they provide regarding their child in participants in deciding how the child will attend IEP meetings as ‘‘* * * individuals developing, reviewing, and revising IEPs be involved and progress in the general who have knowledge or special expertise (§§ 300.343(c)(iii) and 300.346(a)(1) and (b)). curriculum and participate in State and regarding the child * * *’’ (see The IEP team should work toward district-wide assessments, and what services § 300.344(a)(6)). consensus, but the public agency has the agency will provide to the child and in In other circumstances, a child with a ultimate responsibility to ensure that the IEP what setting. disability may attend ‘‘if appropriate.’’ includes the services that the child needs in As previously noted in the introduction to (§ 300.344(a)(7)). Generally, a child with a order to receive FAPE. It is not appropriate section II of this Appendix, Part B disability should attend the IEP meeting if to make IEP decisions based upon a majority specifically provides that parents of children the parent decides that it is appropriate for ‘‘vote.’’ If the team cannot reach consensus, with disabilities— the child to do so. If possible, the agency and the public agency must provide the parents

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00069 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12474 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations with prior written notice of the agency’s reevaluation * * *; (iii) Information about IEP include specific transition-related proposals or refusals, or both, regarding the the child provided to, or by, the parents content, and, beginning no later than age 16, child’s educational program, and the parents ** *; (iv) The child’s anticipated needs; or a statement of needed transition services: have the right to seek resolution of any (v) Other matters. Beginning at age 14 and younger if disagreements by initiating an impartial due appropriate, and updated annually, each process hearing. III. Preparing Students With Disabilities for student’s IEP must include: Every effort should be made to resolve Employment and Other Post-School Experiences ‘‘* * * a statement of the transition service differences between parents and school staff needs of the student under the applicable through voluntary mediation or some other One of the primary purposes of the IDEA components of the student’s IEP that focuses informal step, without resort to a due process is to ‘‘* * * ensure that all children with on the student’s courses of study (such as hearing. However, mediation or other disabilities have available to them a free participation in advanced-placement courses informal procedures may not be used to deny appropriate public education that or a vocational education program)’’ or delay a parent’s right to a due process emphasizes special education and related (§ 300.347(b)(1)(i)). hearing, or to deny any other rights afforded services designed to meet their unique needs Beginning at age 16 (or younger, if under Part B. and prepare them for employment and determined appropriate by the IEP team), 10. Does Part B require that public agencies independent living * * *’’ (§ 300.1(a)). each student’s IEP must include: inform parents regarding the educational Section 701 of the Rehabilitation Act of 1973 ‘‘* * * a statement of needed transition progress of their children with disabilities? describes the philosophy of independent services for the student, including, if Yes. The Part B statute and regulations living as including a philosophy of consumer appropriate, a statement of the interagency include a number of provisions to help control, peer support, self-help, self- responsibilities or any needed linkages.’’ ensure that parents are involved in decisions determination, equal access, and individual (§ 300.347(b)(2)). regarding, and are informed about, their and system advocacy, in order to maximize The Committee Reports on the IDEA child’s educational progress, including the the leadership, empowerment, Amendments of 1997 make clear that the child’s progress in the general curriculum. independence, and productivity of requirement added to the statute in 1997 that First, the parents will be informed regarding individuals with disabilities, and the beginning at age 14, and updated annually, their child’s present levels of educational integration and full inclusion of individuals the IEP include ‘‘a statement of the transition performance through the development of the with disabilities into the mainstream of service needs’’ is ‘‘* * * designed to IEP. Section 300.347(a)(1) requires that each American society. Because many students augment, and not replace,’’ the separate, IEP include: receiving services under IDEA will also preexisting requirement that the IEP include, ** * A statement of the child’s present receive services under the Rehabilitation Act, ‘‘* * * beginning at age 16 (or younger, if levels of educational performance, it is important, in planning for their future, determined appropriate by the IEP team), a including—(i) how the child’s disability to consider the impact of both statutes. statement of needed transition services affects the child’s involvement and progress Similarly, one of the key purposes of the ** *’’ (H. Rep. No. 105–95, p. 102 (1997); in the general curriculum; or (ii) for IDEA Amendments of 1997 was to ‘‘promote S. Rep. No. 105–17, p. 22 (1997)). As clarified preschool children, as appropriate, how the improved educational results for children by the Reports, ‘‘The purpose of [the disability affects the child’s participation in with disabilities through early intervention, requirement in § 300.347(b)(1)(i)] is to focus appropriate activities * * * preschool, and educational experiences that attention on how the child’s educational Further, § 300.347(a)(7) sets forth new prepare them for later educational challenges program can be planned to help the child requirements for regularly informing parents and employment.’’ (H. Rep. No. 105–95, p. 82 make a successful transition to his or her about their child’s educational progress, as (1997); S. Rep. No. 105–17, p. 4 (1997)). goals for life after secondary school.’’ (H. regularly as parents of nondisabled children Thus, throughout their preschool, Rep. No. 105–95, pp. 101–102 (1997); S. Rep. are informed of their child’s progress. That elementary, and secondary education, the No. 105–17, p. 22 (1997)). The Reports section requires that the IEP include: IEPs for children with disabilities must, to further explain that ‘‘[F]or example, for a A statement of—(i) How the child’s the extent appropriate for each individual child whose transition goal is a job, a progress toward the annual goals * * * will child, focus on providing instruction and transition service could be teaching the child be measured; and (ii) how the child’s parents experiences that enable the child to prepare how to get to the job site on public will be regularly informed (by such means as himself or herself for later educational transportation.’’ (H. Rep. No. 105–95, p. 102 periodic report cards), at least as often as experiences and for post-school activities, (1997); S. Rep. No. 105–17, p. 22 (1997)). parents are informed of their nondisabled including formal education, if appropriate, Thus, beginning at age 14, the IEP team, in children’s progress, of—(A) their child’s employment, and independent living. Many determining appropriate measurable annual progress toward the annual goals; and (B) the students with disabilities will obtain services goals (including benchmarks or short-term extent to which that progress is sufficient to through State vocational rehabilitation objectives) and services for a student, must enable the child to achieve the goals by the programs to ensure that their educational determine what instruction and educational end of the year. goals are effectively implemented in post- experiences will assist the student to prepare One method that public agencies could use school activities. Services available through for transition from secondary education to in meeting this requirement would be to rehabilitation programs are consistent with post-secondary life. provide periodic report cards to the parents the underlying purpose of IDEA. The statement of transition service needs of students with disabilities that include both Although preparation for adult life is a key should relate directly to the student’s goals (1) the grading information provided for all component of FAPE throughout the beyond secondary education, and show how children in the agency at the same intervals; educational experiences of students with planned studies are linked to these goals. For and (2) the specific information required by disabilities, Part B sets forth specific example, a student interested in exploring a § 300.347(a)(7)(ii)(A) and (B). requirements related to transition planning career in computer science may have a Finally, the parents, as part of the IEP and transition services that must be statement of transition services needs team, will participate at least once every 12 implemented no later than ages 14 and 16, connected to technology course work, while months in a review of their child’s respectively, and which require an another student’s statement of transition educational progress. Section 300.343(c) intensified focus on that preparation as these services needs could describe why public bus requires that a public agency initiate and students begin and prepare to complete their transportation training is important for future conduct a meeting, at which the IEP team: secondary education. independence in the community. ** * (1) Reviews the child’s IEP 11. What must the IEP team do to meet the Although the focus of the transition periodically, but not less than annually to requirements that the IEP include ‘‘a planning process may shift as the student determine whether the annual goals for the statement of * * * transition service needs’’ approaches graduation, the IEP team must child are being achieved; and (2) revises the beginning at age 14 (§ 300.347(b)(1)(i)),’’ and discuss specific areas beginning at least at the IEP as appropriate to address—(i) any lack of a statement of needed transition services’’ no age of 14 years and review these areas expected progress toward the annual goals later than age 16 (§ 300.347(b)(2)? annually. As noted in the Committee Reports, ** * and in the general curriculum, if Section 300.347(b)(1) requires that, a disproportionate number of students with appropriate; (ii) The results of any beginning no later than age 14, each student’s disabilities drop out of school before they

VerDate 03-MAR-99 17:45 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00070 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm01 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12475 complete their secondary education: ‘‘Too later than age 16, or younger if determined may then claim reimbursement from the many students with disabilities are failing appropriate by the IEP team, include all agency that failed to provide or pay for the courses and dropping out of school. Almost ‘‘needed transition services,’’ as identified by service.) twice as many students with disabilities drop the IEP team and consistent with the 13. Under what circumstances must a out as compared to students without definition at § 300.29, regardless of whether public agency invite representatives from disabilities.’’ (H. Rep. No. 105–95, p. 85 the public agency or some other agency will other agencies to an IEP meeting at which a (1997), S. Rep. No. 105–17, p. 5 (1997).) provide those services. Section 300.347(b)(2) child’s need for transition services will be To help reduce the number of students specifically requires that the statement of considered? with disabilities that drop out, it is important needed transition services include, ‘‘* * * if Section 300.344 requires that, ‘‘In that the IEP team work with each student appropriate, a statement of the interagency implementing the requirements of with a disability and the student’s family to responsibilities or any needed linkages.’’ [§ 300.347(b)(1)(ii) requiring a statement of select courses of study that will be Further, the IDEA Amendments of 1997 needed transition services], the public agency meaningful to the student’s future and also permit an LEA to use up to five percent shall also invite a representative of any other motivate the student to complete his or her of the Part B funds it receives in any fiscal agency that is likely to be responsible for education. year in combination with other amounts, providing or paying for transition services.’’ This requirement is distinct from the which must include amounts other than To meet this requirement, the public agency requirement, at § 300.347(b)(2), that the IEP education funds, to develop and implement must identify all agencies that are ‘‘likely to include: a coordinated services system. These funds be responsible for providing or paying for ** * beginning at age 16 (or younger, if may be used for activities such as: (1) linking transition services’’ for each student determined appropriate by the IEP team), a IEPs under Part B and Individualized Family addressed by § 300.347(b)(1), and must invite statement of needed transition services for Service Plans (IFSPs) under Part C, with each of those agencies to the IEP meeting; the child, including, if appropriate, a Individualized Service Plans developed and if an agency invited to send a statement of the interagency responsibilities under multiple Federal and State programs, representative to a meeting does not do so, or any needed linkages. such as Title I of the Rehabilitation Act; and the public agency must take other steps to The term ‘‘transition services’’ is defined at (2) developing and implementing interagency obtain the participation of that agency in the § 300.29 to mean: financing strategies for the provision of planning of any transition services. ** * a coordinated set of activities for a services, including transition services under If, during the course of an IEP meeting, the student with a disability that—(1) Is designed Part B. team identifies additional agencies that are within an outcome-oriented process, that The need to include, as part of a student’s ‘‘likely to be responsible for providing or promotes movement from school to post- IEP, transition services to be provided by paying for transition services’’ for the school activities, including postsecondary agencies other than the public agency is student, the public agency must determine education, vocational training, integrated contemplated by § 300.348(a), which how it will meet the requirements of employment (including supported specifies what the public agency must do if § 300.344. employment), continuing and adult another agency participating in the education, adult services, independent development of the statement of needed IV. Other Questions Regarding the living, or community participation; (2) Is transition services fails to provide a needed Development and Content of IEPS based on the individual student’s needs, transition service that it had agreed to 14. For a child with a disability receiving taking into account the student’s preferences provide. special education for the first time, when and interests; and (3) Includes—(i) If an agreed-upon service by another must an IEP be developed—before or after the Instruction; (ii) Related services; (iii) agency is not provided, the public agency child begins to receive special education and Community experiences; (iv) The responsible for the student’s education must related services? development of employment and other post- implement alternative strategies to meet the Section 300.342(b)(1) requires that an IEP school adult living objectives; and (v) If student’s needs. This requires that the public be ‘‘in effect before special education and appropriate, acquisition of daily living skills agency provide the services, or convene an related services are provided to an eligible and functional vocational evaluation. IEP meeting as soon as possible to identify child * * *’’ (Italics added.) Thus, while § 300.347(b)(1) requires that alternative strategies to meet the transition The appropriate placement for a particular the IEP team begin by age 14 to address the services objectives, and to revise the IEP child with a disability cannot be determined student’s need for instruction that will assist accordingly. until after decisions have been made about the student to prepare for transition, the IEP Alternative strategies might include the the child’s needs and the services that the must include by age 16 a statement of needed identification of another funding source, public agency will provide to meet those transition services under § 300.347(b)(2) that referral to another agency, the public needs. These decisions must be made at the includes a ‘‘coordinated set of activities agency’s identification of other district-wide IEP meeting, and it would not be permissible ** *, designed within an outcome-oriented or community resources that it can use to first to place the child and then develop the process, that promotes movement from meet the student’s identified needs IEP. Therefore, the IEP must be developed school to post-school activities * * *.’’ (§ 300.29) Section 300.344(b)(3) further appropriately, or a combination of these before placement. (Further, the child’s requires that, in implementing strategies. As emphasized by § 300.348(b), placement must be based, among other § 300.347(b)(1), public agencies (in addition however: factors, on the child’s IEP.) to required participants for all IEP meetings), Nothing in [Part B] relieves any This requirement does not preclude must also invite a representative of any other participating agency, including a State temporarily placing an eligible child with a agency that is likely to be responsible for vocational rehabilitation agency, of the disability in a program as part of the providing or paying for transition services. responsibility to provide or pay for any evaluation process—before the IEP is Thus, § 300.347(b)(2) requires a broader focus transition service that the agency would finalized—to assist a public agency in on coordination of services across, and otherwise provide to students with determining the appropriate placement for linkages between, agencies beyond the SEA disabilities who meet the eligibility criteria of the child. However, it is essential that the and LEA. that agency. temporary placement not become the final 12. Must the IEP for each student with a However, the fact that an agency other than placement before the IEP is finalized. In disability, beginning no later than age 16, the public agency does not fulfill its order to ensure that this does not happen, the include all ‘‘needed transition services,’’ as responsibility does not relieve the public State might consider requiring LEAs to take identified by the IEP team and consistent agency of its responsibility to ensure that the following actions: with the definition at § 300.29, even if an FAPE is available to each student with a a. Develop an interim IEP for the child that agency other than the public agency will disability. (Section 300.142(b)(2) specifically sets out the specific conditions and timelines provide those services? What is the public requires that if an agency other than the LEA for the trial placement. (See paragraph c, agency’s responsibility if another agency fails fails to provide or pay for a special education following.) to provide agreed-upon transition services? or related service (which could include a b. Ensure that the parents agree to the Section 300.347(b)(2) requires that the IEP transition service), the LEA must, without interim placement before it is carried out, for each child with a disability, beginning no delay, provide or pay for the service, and and that they are involved throughout the

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00071 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12476 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations process of developing, reviewing, and the child has available special education and notification to the parents, consistent with revising the child’s IEP. related services in conformity with an IEP. the requirements of §§ 300.345, 300.503, and c. Set a specific timeline (e.g., 30 days) for The new public agency must ensure that 300.504, and ensuring that all the required completing the evaluation, finalizing the IEP, the child has an IEP in effect before the team members participate in the and determining the appropriate placement agency can provide special education and development of the IEP, consistent with the for the child. related services. The new public agency may requirements of § 300.344;) and (3) ensuring d. Conduct an IEP meeting at the end of the meet this responsibility by either adopting that the placement is made by the required trial period in order to finalize the child’s the IEP the former public agency developed individuals, including the parent, as required IEP. for the child or by developing a new IEP for by §§ 300.552 and 300.501(c). 15. Who is responsible for ensuring the the child. (The new public agency is strongly 20. How frequently must a public agency development of IEPs for children with encouraged to continue implementing the conduct meetings to review, and, if disabilities served by a public agency other IEP developed by the former public agency, appropriate, revise the IEP for each child than an LEA? if appropriate, especially if the parents with a disability? The answer as to which public agency has believe their child was progressing A public agency must initiate and conduct direct responsibility for ensuring the appropriately under that IEP.) meetings periodically, but at least once every development of IEPs for children with Before the child’s IEP is finalized, the new twelve months, to review each child’s IEP, in disabilities served by a public agency other public agency may provide interim services order to determine whether the annual goals than an LEA will vary from State to State, agreed to by both the parents and the new for the child are being achieved, and to revise depending upon State law, policy, or public agency. If the parents and the new the IEP, as appropriate, to address: (a) Any practice. The SEA is ultimately responsible public agency are unable to agree on an lack of expected progress toward the annual for ensuring that all Part B requirements, interim IEP and placement, the new public goals and in the general curriculum, if including the IEP requirements, are met for agency must implement the old IEP to the appropriate; (b) the results of any eligible children within the State, including extent possible until a new IEP is developed reevaluation; (c) information about the child those children served by a public agency and implemented. provided to, or by, the parents; (d) the child’s other than an LEA. Thus, the SEA must In general, while the new public agency anticipated needs; or (e) other matters ensure that every eligible child with a must conduct an IEP meeting, it would not (§ 300.343(c)). disability in the State has FAPE available, be necessary if: (1) A copy of the child’s A public agency also must ensure that an regardless of which State or local agency is current IEP is available; (2) the parents IEP is in effect for each child at the beginning responsible for educating the child. (The only indicate that they are satisfied with the of each school year (§ 300.342(a)). It may exception to this responsibility is that the current IEP; and (3) the new public agency conduct IEP meetings at any time during the SEA is not responsible for ensuring that determines that the current IEP is appropriate year. However, if the agency conducts the IEP FAPE is made available to children with and can be implemented as written. meeting prior to the beginning of the next disabilities who are convicted as adults If the child’s current IEP is not available, school year, it must ensure that the IEP under State law and incarcerated in adult or if either the new public agency or the contains the necessary special education and prisons, if the State has assigned that parent believes that it is not appropriate, the related services and supplementary aids and responsibility to a public agency other than new public agency must develop a new IEP services to ensure that the student’s IEP can the SEA. (See § 300.600(d)). through appropriate procedures within a be appropriately implemented during the Although the SEA has flexibility in short time after the child enrolls in the new next school year. Otherwise, it would be deciding the best means to meet this public agency (normally, within one week). necessary for the public agency to conduct obligation (e.g., through interagency 18. What timelines apply to the another IEP meeting. agreements), the SEA must ensure that no development and implementation of an Although the public agency is responsible eligible child with a disability is denied initial IEP for a child with a disability? for determining when it is necessary to FAPE due to jurisdictional disputes among Section 300.343(b) requires each public conduct an IEP meeting, the parents of a agencies. agency to ensure that within a reasonable child with a disability have the right to When an LEA is responsible for the period of time following the agency’s receipt request an IEP meeting at any time. For education of a child with a disability, the of parent consent to an initial evaluation of example, if the parents believe that the child LEA remains responsible for developing the a child, the child is evaluated and, if is not progressing satisfactorily or that there child’s IEP, regardless of the public or private determined eligible, special education and is a problem with the child’s current IEP, it school setting into which it places the child. related services are made available to the would be appropriate for the parents to 16. For a child placed out of State by an child in accordance with an IEP. The section request an IEP meeting. educational or non-educational State or local further requires the agency to conduct a If a child’s teacher feels that the child’s IEP agency, is the placing or receiving State meeting to develop an IEP for the child or placement is not appropriate for the child, responsible for the child’s IEP? within 30 days of determining that the child the teacher should follow agency procedures Regardless of the reason for the placement, needs special education and related services. with respect to: (1) calling or meeting with the ‘‘placing’’ State is responsible for Section 300.342(b)(2) provides that an IEP the parents or (2) requesting the agency to ensuring that the child’s IEP is developed must be implemented as soon as possible hold another IEP meeting to review the and that it is implemented. The following the meeting in which the IEP is child’s IEP. determination of the specific agency in the developed. The legislative history of Public Law 94– placing State that is responsible for the 19. Must a public agency hold separate 142 makes it clear that there should be as child’s IEP would be based on State law, meetings to determine a child’s eligibility for many meetings a year as any one child may policy, or practice. However, the SEA in the special education and related services, need (121 Cong. Rec. S20428–29 (Nov. 19, placing State is ultimately responsible for develop the child’s IEP, and determine the 1975) (remarks of Senator Stafford)). Public ensuring that the child has FAPE available. child’s placement, or may the agency meet all agencies should grant any reasonable parent 17. If a disabled child has been receiving of these requirements in a single meeting? request for an IEP meeting. For example, if special education from one public agency A public agency may, after a child is the parents question the adequacy of services and transfers to another public agency in the determined by ‘‘a group of qualified that are provided while their child is same State, must the new public agency professionals and the parent’’ (see suspended for short periods of time, it would develop an IEP before the child can be placed § 300.534(a)(1)) to be a child with a be appropriate to convene an IEP meeting. in a special education program? disability, continue in the same meeting to In general, if either a parent or a public If a child with a disability moves from one develop an IEP for the child and then to agency believes that a required component of public agency to another in the same State, determine the child’s placement. However, the student’s IEP should be changed, the the State and its public agencies have an the public agency must ensure that it meets: public agency must conduct an IEP meeting ongoing responsibility to ensure that FAPE is (1) the requirements of § 300.535 regarding if it believes that a change in the IEP may be made available to that child. This means that eligibility decisions; (2) all of the Part B necessary to ensure the provision of FAPE. if a child moves to another public agency the requirements regarding meetings to develop If a parent requests an IEP meeting because new agency is responsible for ensuring that IEPs (including providing appropriate the parent believes that a change is needed

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00072 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12477 in the provision of FAPE to the child or the that individual meets the requirements of participate in the development, review, and educational placement of the child, and the § 300.344(a)(4). revision of the child’s IEP, including agency refuses to convene an IEP meeting to 23. For a child with a disability being assisting in—(1) the determination of determine whether such a change is needed, considered for initial provision of special appropriate positive behavioral interventions the agency must provide written notice to the education and related services, which teacher and strategies for the child; and (2) the parents of the refusal, including an or teachers should attend the IEP meeting? determination of supplementary aids and explanation of why the agency has A child’s IEP team must include at least services, program modifications, and determined that conducting the meeting is one of the child’s regular education teachers supports for school personnel that will be not necessary to ensure the provision of (if the child is, or may be participating in the provided for the child, consistent with FAPE to the student. regular education environment) and at least 300.347(a)(3) (§ 300.344(d)). Under § 300.507(a), the parents or agency one of the child’s special education teachers, Thus, while a regular education teacher may initiate a due process hearing at any or, if appropriate, at least one of the child’s must be a member of the IEP team if the child time regarding any proposal or refusal special education providers (§ 300.344(a)(2) is, or may be, participating in the regular regarding the identification, evaluation, or and (3)). education environment, the teacher need not educational placement of the child, or the Each IEP must include a statement of the (depending upon the child’s needs and the provision of FAPE to the child, and the present levels of educational performance, purpose of the specific IEP team meeting) be public agency must inform parents about the including a statement of how the child’s required to participate in all decisions made availability of mediation. disability affects the child’s involvement and as part of the meeting or to be present 21. May IEP meetings be audio- or video- progress in the general curriculum throughout the entire meeting or attend every tape-recorded? (§ 300.347(a)(1)). At least one regular meeting. For example, the regular education Part B does not address the use of audio education teacher is a required member of teacher who is a member of the IEP team or video recording devices at IEP meetings, the IEP team of a child who is, or may be, must participate in discussions and decisions and no other Federal statute either authorizes participating in the regular educational about how to modify the general curriculum or prohibits the recording of an IEP meeting environment, regardless of the extent of that in the regular classroom to ensure the child’s by either a parent or a school official. participation. involvement and progress in the general Therefore, an SEA or public agency has the The requirements of § 300.344(a)(3) can be curriculum and participation in the regular option to require, prohibit, limit, or met by either: (1) a special education teacher education environment. otherwise regulate the use of recording of the child; or (2) another special education Depending upon the specific devices at IEP meetings. provider of the child, such as a speech circumstances, however, it may not be If a public agency has a policy that pathologist, physical or occupational necessary for the regular education teacher to prohibits or limits the use of recording therapist, etc., if the related service consists participate in discussions and decisions regarding, for example, the physical therapy devices at IEP meetings, that policy must of specially designed instruction and is needs of the child, if the teacher is not provide for exceptions if they are necessary considered special education under responsible for implementing that portion of to ensure that the parent understands the IEP applicable State standards. the child’s IEP. or the IEP process or to implement other Sometimes more than one meeting is In determining the extent of the regular parental rights guaranteed under Part B. An necessary in order to finalize a child’s IEP. education teacher’s participation at IEP SEA or school district that adopts a rule In this process, if the special education meetings, public agencies and parents should regulating the tape recording of IEP meetings teacher or special education provider who discuss and try to reach agreement on also should ensure that it is uniformly will be working with the child is identified, whether the child’s regular education teacher applied. it would be useful to have that teacher or that is a member of the IEP team should be Any recording of an IEP meeting that is provider participate in the meeting with the present at a particular IEP meeting and, if so, maintained by the public agency is an parents and other members of the IEP team for what period of time. The extent to which ‘‘education record,’’ within the meaning of in finalizing the IEP. If this is not possible, it would be appropriate for the regular the Family Educational Rights and Privacy the public agency must ensure that the education teacher member of the IEP team to Act (‘‘FERPA’’; 20 U.S.C. 1232g), and would, teacher or provider has access to the child’s participate in IEP meetings must be decided therefore, be subject to the confidentiality IEP as soon as possible after it is finalized on a case-by-case basis. requirements of the regulations under both and before beginning to work with the child. 25. If a child with a disability attends FERPA (34 CFR part 99) and part B Further, (consistent with § 300.342(b)), the several regular classes, must all of the child’s (§§ 300.560–300.575). public agency must ensure that each regular regular education teachers be members of the Parents wishing to use audio or video education teacher, special education teacher, child’s IEP team? recording devices at IEP meetings should related services provider and other service No. The IEP team need not include more consult State or local policies for further provider of an eligible child under this part than one regular education teacher of the guidance. (1) has access to the child’s IEP, and (2) is child. If the participation of more than one 22. Who can serve as the representative of informed of his or her specific regular education teacher would be beneficial the public agency at an IEP meeting? responsibilities related to implementing the to the child’s success in school (e.g., in terms The IEP team must include a representative IEP, and of the specific accommodations, of enhancing the child’s participation in the of the public agency who: (a) Is qualified to modifications, and supports that must be general curriculum), it would be appropriate provide, or supervise the provision of, provided to the child in accordance with the for them to attend the meeting. specially designed instruction to meet the IEP. This requirement is crucial to ensuring 26. How should a public agency determine unique needs of children with disabilities; (b) that each child receives FAPE in accordance which regular education teacher and special is knowledgeable about the general with his or her IEP, and that the IEP is education teacher will be members of the IEP curriculum; and (c) is knowledgeable about appropriately and effectively implemented. team for a particular child with a disability? the availability of resources of the public 24. What is the role of a regular education The regular education teacher who serves agency (§ 300.344(a)(4)). teacher in the development, review and as a member of a child’s IEP team should be Each public agency may determine which revision of the IEP for a child who is, or may a teacher who is, or may be, responsible for specific staff member will serve as the agency be, participating in the regular education implementing a portion of the IEP, so that the representative in a particular IEP meeting, so environment? teacher can participate in discussions about long as the individual meets these As required by § 300.344(a)(2), the IEP how best to teach the child. requirements. It is important, however, that team for a child with a disability must If the child has more than one regular the agency representative have the authority include at least one regular education teacher education teacher responsible for carrying to commit agency resources and be able to of the child if the child is, or may be, out a portion of the IEP, the LEA may ensure that whatever services are set out in participating in the regular education designate which teacher or teachers will the IEP will actually be provided. environment. Section 300.346(d) further serve as IEP team member(s), taking into A public agency may designate another specifies that the regular education teacher of account the best interest of the child. public agency member of the IEP team to also a child with a disability, as a member of the In a situation in which not all of the child’s serve as the agency representative, so long as IEP team, must, to the extent appropriate, regular education teachers are members of

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00073 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12478 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations the child’s IEP team, the LEA is strongly with the interests of the teacher rather than If a child with a disability has an identified encouraged to seek input from the teachers the interests of the child, and generally need for related services, it would be who will not be attending. In addition, would not possess knowledge or expertise appropriate for the related services personnel (consistent with § 300.342(b)), the LEA must regarding the child, it generally would be to attend the meeting or otherwise be ensure that each regular education teacher (as inappropriate for such an official to be a involved in developing the IEP. As explained well as each special education teacher, member of the IEP team or to otherwise in the Committee Reports on the IDEA related services provider, and other service participate in an IEP meeting.) Amendments of 1997, ‘‘Related services provider) of an eligible child under this part 29. Can parents or public agencies bring personnel should be included on the team (1) has access to the child’s IEP, and (2) is their attorneys to IEP meetings, and, if so when a particular related service will be informed of his or her specific under what circumstances? Are attorney’s discussed at the request of the child’s parents responsibilities related to implementing the fees available for parents’ attorneys if the or the school.’’ (H. Rep. No. 105–95, p. 103 IEP, and of the specific accommodations, parents are prevailing parties in actions or (1997); S. Rep. No. 105–17, p. 23 (1997)). For modifications and supports that must be proceedings brought under Part B? example, if the child’s evaluation indicates provided to the child in accordance with the Section 300.344(a)(6) authorizes the the need for a specific related service (e.g., IEP. addition to the IEP team of other individuals physical therapy, occupational therapy, In the case of a child whose behavior at the discretion of the parent or the public special transportation services, school social impedes the learning of the child or others, agency only if those other individuals have work services, school health services, or the LEA is encouraged to have a regular knowledge or special expertise regarding the counseling), the agency should ensure that a education teacher or other person child. The determination of whether an qualified provider of that service either (1) knowledgeable about positive behavior attorney possesses knowledge or special attends the IEP meeting, or (2) provides a strategies at the IEP meeting. This is expertise regarding the child would have to written recommendation concerning the especially important if the regular education be made on a case-by-case basis by the parent nature, frequency, and amount of service to teacher is expected to carry out portions of or public agency inviting the attorney to be be provided to the child. This written the IEP. a member of the team. recommendation could be a part of the Similarly, the special education teacher or The presence of the agency’s attorney evaluation report. provider of the child who is a member of the could contribute to a potentially adversarial A public agency must ensure that all child’s IEP team should be the person who atmosphere at the meeting. The same is true individuals who are necessary to develop an is, or will be, responsible for implementing with regard to the presence of an attorney IEP that will meet the child’s unique needs, the IEP. If, for example, the child’s disability accompanying the parents at the IEP meeting. and ensure the provision of FAPE to the is a speech impairment, the special education Even if the attorney possessed knowledge or child, participate in the child’s IEP meeting. teacher on the IEP team could be the speech- special expertise regarding the child 31. Must the public agency ensure that all language pathologist. (§ 300.344(a)(6)), an attorney’s presence services specified in a child’s IEP are 27. For a child whose primary disability is would have the potential for creating an provided? a speech impairment, may a public agency adversarial atmosphere that would not Yes. The public agency must ensure that meet its responsibility under § 300.344(a)(3) necessarily be in the best interests of the all services set forth in the child’s IEP are to ensure that the IEP team includes ‘‘at least child. provided, consistent with the child’s needs one special education teacher, or, if Therefore, the attendance of attorneys at as identified in the IEP. The agency may appropriate, at least one special education IEP meetings should be strongly discouraged. provide each of those services directly, provider of the child’’ by including a speech- Further, as specified in Section through its own staff resources; indirectly, by language pathologist on the IEP team? 615(i)(3)(D)(ii) of the Act and contracting with another public or private Yes, if speech is considered special § 300.513(c)(2)(ii), Attorneys’ fees may not be agency; or through other arrangements. In education under State standards. As with awarded relating to any meeting of the IEP providing the services, the agency may use other children with disabilities, the IEP team team unless the meeting is convened as a whatever State, local, Federal, and private must also include at least one of the child’s result of an administrative proceeding or sources of support are available for those regular education teachers if the child is, or judicial action, or, at the discretion of the purposes (see § 300.301(a)); but the services may be, participating in the regular education State, for a mediation conducted prior to the must be at no cost to the parents, and the environment. request for a due process hearing. public agency remains responsible for 28. Do parents and public agencies have 30. Must related services personnel attend ensuring that the IEP services are provided in the option of inviting any individual of their IEP meetings? a manner that appropriately meets the choice be participants on their child’s IEP Although Part B does not expressly require student’s needs as specified in the IEP. The team? that the IEP team include related services SEA and responsible public agency may not The IEP team may, at the discretion of the personnel as part of the IEP team allow the failure of another agency to provide parent or the agency, include ‘‘other (§ 300.344(a)), it is appropriate for those service(s) described in the child’s IEP to deny individuals who have knowledge or special persons to be included if a particular related or delay the provision of FAPE to the child. expertise regarding the child * * *’’ service is to be discussed as part of the IEP (See § 300.142, Methods of ensuring (§ 300.344(a)(6), italics added). Under meeting. Section 300.344(a)(6) provides that services.) § 300.344(a)(6), these individuals are the IEP team also includes ‘‘at the discretion 32. Is it permissible for an agency to have members of the IEP team. This is a change of the parent or the agency, other individuals the IEP completed before the IEP meeting from prior law, which provided, without who have knowledge or special expertise begins? qualification, that parents or agencies could regarding the child, including related No. Agency staff may come to an IEP have other individuals as members of the IEP services personnel as appropriate. * * *’’ meeting prepared with evaluation findings team at the discretion of the parents or (Italics added.) and proposed recommendations regarding agency. Further, § 300.344(a)(3) requires that the IEP content, but the agency must make it Under § 300.344(c), the determination as to IEP team for each child with a disability clear to the parents at the outset of the whether an individual has knowledge or include ‘‘at least one special education meeting that the services proposed by the special expertise, within the meaning of teacher, or, if appropriate, at least one special agency are only recommendations for review § 300.344(a)(6), shall be made by the parent education provider of the child * * *’’ This and discussion with the parents. Parents or public agency who has invited the requirement can be met by the participation have the right to bring questions, concerns, individual to be a member of the IEP team. of either (1) a special education teacher of the and recommendations to an IEP meeting as Part B does not provide for including child, or (2) another special education part of a full discussion, of the child’s needs individuals such as representatives of teacher provider such as a speech-language and the services to be provided to meet those organizations as part of an IEP team, unless pathologist, physical or occupational needs before the IEP is finalized. they are included because of knowledge or therapist, etc., if the related service consists Public agencies must ensure that, if agency special expertise regarding the child. of specially designed instruction and is personnel bring drafts of some or all of the (Because a representative of a teacher considered special education under the IEP content to the IEP meeting, there is a full organization would generally be concerned applicable State standard. discussion with the child’s parents, before

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00074 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12479 the child’s IEP is finalized, regarding drafted services as nutritional services or service other persons knowledgeable about the child, content and the child’s needs and the coordination. the meaning of the evaluation data, and the services to be provided to meet those needs. These determinations must be made on an placement options. 33. Must a public agency include individual basis by each child’s IEP team. 38. If a child’s IEP includes behavioral transportation in a child’s IEP as a related 35. Must the IEP specify the amount of strategies to address a particular behavior, service? services or may it simply list the services to can a child ever be suspended for engaging As with other related services, a public be provided? in that behavior? agency must provide transportation as a The amount of services to be provided If a child’s behavior impedes his or her related service if it is required to assist the must be stated in the IEP, so that the level learning or that of others, the IEP team, in disabled child to benefit from special of the agency’s commitment of resources will developing the child’s IEP, must consider, if education. (This includes transporting a be clear to parents and other IEP team appropriate, development of strategies, preschool-aged child to the site at which the members (§ 300.347(a)(6)). The amount of including positive behavioral interventions, public agency provides special education and time to be committed to each of the various strategies and supports to address that related services to the child, if that site is services to be provided must be (1) behavior, consistent with § 300.346(a)(2)(i). different from the site at which the child appropriate to the specific service, and (2) This means that in most cases in which a receives other preschool or day care stated in the IEP in a manner that is clear to child’s behavior that impedes his or her services.) all who are involved in both the development learning or that of others is, or can be readily In determining whether to include and implementation of the IEP. anticipated to be, repetitive, proper transportation in a child’s IEP, and whether The amount of a special education or development of the child’s IEP will include the child needs to receive transportation as related service to be provided to a child may the development of strategies, including a related service, it would be appropriate to be stated in the IEP as a range (e.g., speech positive behavioral interventions, strategies have at the IEP meeting a person with therapy to be provided three times per week and supports to address that behavior. See expertise in that area. In making this for 30–45 minutes per session) only if the IEP § 300.346(c). This includes behavior that determination, the IEP team must consider team determines that stating the amount of could violate a school code of conduct. A how the child’s disability affects the child’s services as a range is necessary to meet the failure to, if appropriate, consider and need for transportation, including unique needs of the child. For example, it address these behaviors in developing and determining whether the child’s disability would be appropriate for the IEP to specify, implementing the child’s IEP would prevents the child from using the same based upon the IEP team’s determination of constitute a denial of FAPE to the child. Of transportation provided to nondisabled the student’s unique needs, that particular course, in appropriate circumstances, the IEP children, or from getting to school in the services are needed only under specific team, which includes the child’s parents, same manner as nondisabled children. circumstances, such as the occurrence of a might determine that the child’s behavioral The public agency must ensure that any seizure or of a particular behavior. A range intervention plan includes specific regular or transportation service included in a child’s may not be used because of personnel alternative disciplinary measures, such as IEP as a related service is provided at public shortages or uncertainty regarding the denial of certain privileges or short expense and at no cost to the parents, and availability of staff. suspensions, that would result from that the child’s IEP describes the 36. Under what circumstances is a public particular infractions of school rules, along transportation arrangement. agency required to permit a child with a with positive behavior intervention strategies Even if a child’s IEP team determines that disability to use a school-purchased assistive and supports, as a part of a comprehensive the child does not require transportation as technology device in the child’s home or in plan to address the child’s behavior. Of a related service, Section 504 of the another setting? course, if short suspensions that are included Rehabilitation Act of 1973, as amended, Each child’s IEP team must consider the in a child’s IEP are being implemented in a requires that the child receive the same child’s need for assistive technology (AT) in manner that denies the child access to the transportation provided to nondisabled the development of the child’s IEP ability to progress in the educational children. If a public agency transports (§ 300.346(a)(2)(v)); and the nature and extent program, the child would be denied FAPE. nondisabled children, it must transport of the AT devices and services to be provided Whether other disciplinary measures, disabled children under the same terms and to the child must be reflected in the child’s including suspension, are ever appropriate conditions. However, if a child’s IEP team IEP (§ 300.346(c)). for behavior that is addressed in a child’s IEP determines that the child does not need A public agency must permit a child to use will have to be determined on a case by case transportation as a related service, and the school-purchased assistive technology basis in light of the particular circumstances public agency transports only those children devices at home or in other settings, if the of that incident. However, school personnel whose IEPs specify transportation as a related IEP team determines that the child needs may not use their ability to suspend a child service, and does not transport nondisabled access to those devices in nonschool settings for 10 days or less at a time on multiple children, the public agency would not be in order to receive FAPE (to complete occasions in a school year as a means of required to provide transportation to a homework, for example). avoiding appropriately considering and disabled child. Any assistive technology devices that are addressing the child’s behavior as a part of It should be assumed that most children necessary to ensure FAPE must be provided providing FAPE to the child. with disabilities receive the same at no cost to the parents, and the parents 39. If a child’s behavior in the regular transportation services as nondisabled cannot be charged for normal use, wear and classroom, even with appropriate children. For some children with disabilities, tear. However, while ownership of the interventions, would significantly impair the integrated transportation may be achieved by devices in these circumstances would remain learning of others, can the group that makes providing needed accommodations such as with the public agency, State law, rather than the placement decision determine that lifts and other equipment adaptations on Part B, generally would govern whether placement in the regular classroom is regular school transportation vehicles. parents are liable for loss, theft, or damage inappropriate for that child? 34. Must a public agency provide related due to negligence or misuse of publicly The IEP team, in developing the IEP, is services that are required to assist a child owned equipment used at home or in other required to consider, when appropriate, with a disability to benefit from special settings in accordance with a child’s IEP. strategies, including positive behavioral education, whether or not those services are 37. Can the IEP team also function as the interventions, strategies and supports to included in the list of related services in group making the placement decision for a address the behavior of a child with a § 300.24? child with a disability? disability whose behavior impedes his or her The list of related services is not Yes, a public agency may use the IEP team learning or that of others. If the IEP team exhaustive and may include other to make the placement decision for a child, determines that such supports, strategies or developmental, corrective, or supportive so long as the group making the placement interventions are necessary to address the services if they are required to assist a child decision meets the requirements of behavior of the child, those services must be with a disability to benefit from special §§ 300.552 and 300.501(c), which requires included in the child’s IEP. These provisions education. This could, depending upon the that the placement decision be made by a are designed to foster increased participation unique needs of a child, include such group of persons, including the parents, and of children with disabilities in regular

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00075 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12480 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations education environments or other less the IDEA. If the child’s behavior in the consecutive school days in that same school restrictive environments, not to serve as a regular classroom, even with the provision of year for separate incidents of misconduct, as basis for placing children with disabilities in appropriate behavioral supports, strategies or long as these removals do not constitute a more restrictive settings. interventions, would significantly impair the change of placement under § 300.519(b). The determination of appropriate learning of others, that placement would not However, these removals are permitted only placement for a child whose behavior is meet his or her needs and would not be to the extent they are consistent with interfering with the education of others appropriate for that child. discipline that is applied to children without requires careful consideration of whether the 40. May school personnel during a school disabilities. Also, school personnel should be child can appropriately function in the year implement more than one short-term aware of constitutional due process regular classroom if provided appropriate removal of a child with disabilities from his protections that apply to suspensions of all behavioral supports, strategies and or her classroom or school for misconduct? children. Goss v. Lopez, 419 U.S. 565 (1975). interventions. If the child can appropriately Yes. Under § 300.520(a)(1), school Section 300.121(d) addresses the extent of function in the regular classroom with personnel may order removal of a child with the obligation to provide services after a appropriate behavioral supports, strategies or a disability from the child’s current child with a disability has been removed interventions, placement in a more restrictive placement for not more than 10 consecutive from his or her current placement for more environment would be inconsistent with the school days for any violation of school rules, than 10 school days in the same school year. least restrictive environment provisions of and additional removals of not more than 10 BILLING CODE: 4000±01±P

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00076 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12481

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00077 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12482 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00078 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12483

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00079 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12484 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00080 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12485

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00081 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12486 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00082 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12487

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00083 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12488 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00084 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12489

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00085 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12490 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00086 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12491

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00087 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12492 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00088 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12493

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00089 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12494 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00090 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12495

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00091 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12496 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00092 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12497

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00093 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12498 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00094 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12499

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00095 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12500 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00096 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12501

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00097 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12502 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00098 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12503

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00099 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12504 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00100 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12505

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00101 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12506 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00102 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12507

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00103 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12508 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00104 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12509

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00105 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12510 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00106 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12511

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00107 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12512 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00108 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12513

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00109 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12514 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00110 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12515

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00111 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12516 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00112 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12517

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00113 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12518 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00114 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12519

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00115 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12520 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00116 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12521

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00117 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12522 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00118 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12523

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00119 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12524 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00120 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12525

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00121 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12526 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00122 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12527

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00123 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12528 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00124 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12529

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00125 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12530 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00126 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12531

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00127 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12532 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00128 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12533

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00129 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12534 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00130 Fmt 4701 Sfmt 4725 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12535

BILLING CODE 4000±01±C §§ 303.6, 303.12, and 303.18 [Amended] (b) Foster parent. Unless State law prohibits a foster parent from acting as PART 303ÐEARLY INTERVENTION 6. The note preceding § 303.6 and a parent, a State may allow a foster PROGRAM FOR INFANTS AND following the heading ‘‘Definitions’’ is parent to act as a parent under Part C TODDLERS WITH DISABILITIES amended by removing the phrase ‘‘’natural environments’’ in of the Act if— 2. The authority citation for part 303 § 303.12(b)(2)’’ and adding, in its place, (1) The natural parents’ authority to continues to read as follows: ‘‘‘natural environments’ in § 303.18’’. make the decisions required of parents under the Act has been extinguished Authority: 20 U.S.C. 1431–1445, unless 7. Section 303.10 is revised to read as otherwise noted. follows: under State law; and (2) The foster parent— § 303.1 [Amended] § 303.10 Developmental delay. (i) Has an ongoing, long-term parental 3. Section 303.1 is amended by As used in this part, ‘‘developmental relationship with the child; removing the word ‘‘program’’ in delay,’’ when used with respect to an (ii) Is willing to make the decisions paragraph (a), and adding, in its place, individual residing in a State, has the required of parents under the Act; and ‘‘system.’’ meaning given to that term under (iii) Has no interest that would § 303.300. conflict with the interests of the child. § 303.4 [Amended] (Authority: 20 U.S.C. 1432(3)) (Authority: 20 U.S.C. 1401(19), 1431–1445) 4. Section 303.4 is amended by § 303.12 [Amended] 10. Section 303.100 is amended by revising the authority citation to read as revising paragraph (d)(2) to read as 8. Section 303.12(d)(11) is amended follows: follows: (Authority: 20 U.S.C. 1419(h)) by removing the reference to ‘‘§ 303.22’’ and by adding in its place ‘‘§ 303.23’’. § 303.100 Conditions of assistance. 5. Section 303.5 is amended by 9. Section 303.19 is revised to read as * * * * * adding ‘‘, and’’ at the end of paragraph follows: (d) * * * (a)(1)(vi), by revising paragraph (a)(3), § 303.19 Parent. (2) A new interpretation is made of and by revising the authority citation to the Act by a Federal court or the State’s read as follows: (a) General. As used in this part, highest court; or ‘‘parent’’ means— § 303.5 Applicable regulations. * * * * * (1) A natural or adoptive parent of a * * * * * child; § 303.140 [Amended] (a) * * * (2) A guardian; 11. In § 303.140 paragraph (b) is (3) The following regulations in 34 (3) A person acting in the place of a amended by adding the words, ‘‘in the CFR part 300 (Assistance to States for parent (such as a grandparent or State’’ after ‘‘services are available to all the Education of Children with stepparent with whom the child lives, infants and toddlers with disabilities’’. Disabilities Program): §§ 300.560– or a person who is legally responsible 300.577, and §§ 300.580–300.585. for the child’s welfare); or § 303.145 [Amended] * * * * * (4) A surrogate parent who has been 12. Section 303.145 is amended by (Authority: 20 U.S.C. 1401, 1416, 1417) assigned in accordance with § 303.406. revising the heading for paragraph (c) to

VerDate 03-MAR-99 17:45 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00131 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm01 PsN: 12MRR2 12536 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations read ‘‘Maintenance and implementation appropriate entities, the State’s agency is violating a requirement of Part activities’’; and by removing the words procedures under §§ 303.510–303.512. C of the Act or of this Part; and ‘‘planning, developing’’ in paragraph (b) Remedies for denial of appropriate (4) Issue a written decision to the (c)(1), and adding, in their place, services. In resolving a complaint in complainant that addresses each ‘‘maintaining’’. 3. Section 303.344 is which it finds a failure to provide allegation in the complaint and amended by adding ‘‘and’’ after appropriate services, a lead agency, contains— ‘‘§ 303.12(b)’’ in paragraph (d)(1)(ii), and pursuant to its general supervisory (i) Findings of fact and conclusions; by revising paragraph (h)(1) to read as authority under Part C of the Act, must and follows: address: (ii) The reasons for the lead agency’s (1) How to remediate the denial of final decision. § 303.344 Content of an IFSP. those services, including, as (b) Time extension; final decisions; * * * * * appropriate, the awarding of monetary implementation. The lead agency’s (h) Transition from Part C services. (1) reimbursement or other corrective procedures described in paragraph (a) of The IFSP must include the steps to be action appropriate to the needs of the this section also must— taken to support the transition of the child and the child’s family; and (1) Permit an extension of the time child, in accordance with § 303.148, (2) Appropriate future provision of limit under paragraph (a) of this section to— services for all infants and toddlers with only if exceptional circumstances exist (i) Preschool services under Part B of disabilities and their families. with respect to a particular complaint; the Act, to the extent that those services (Authority: 20 U.S.C. 1435(a)(10)) and are appropriate; or (2) Include procedures for effective (ii) Other services that may be 16. Section 303.511 is revised to read implementation of the lead agency’s available, if appropriate. as follows: final decision, if needed, including— * * * * * § 303.511 An organization or individual (i) Technical assistance activities; 14. Section 303.403 is amended by may file a complaint. (ii) Negotiations; and removing the word ‘‘and’’ at the end of (a) General. An individual or (iii) Corrective actions to achieve paragraph (b)(2); by revising paragraph organization may file a written signed compliance. (b)(3); by adding a new paragraph (b)(4); complaint under § 303.510. The (c) Complaints filed under this and by revising the authority citation to complaint must include— section, and due process hearings under read as follows: (1) A statement that the State has § 303.420. (1) If a written complaint is violated a requirement of part C of the received that is also the subject of a due § 303.403 Prior notice; native language. Act or the regulations in this part; and process hearing under § 303.420, or * * * * * (2) The facts on which the complaint contains multiple issues, of which one (b) * * * is based. or more are part of that hearing, the (3) All procedural safeguards that are (b) Limitations. The alleged violation State must set aside any part of the available under §§ 303.401–303.460 of must have occurred not more than one complaint that is being addressed in the this part; and year before the date that the complaint due process hearing until the (4) The State complaint procedures is received by the public agency unless conclusion of the hearing. However, any under §§ 303.510–303.512, including a a longer period is reasonable because— issue in the complaint that is not a part description of how to file a complaint (1) The alleged violation continues for of the due process action must be and the timelines under those that child or other children; or resolved within the 60-calendar-day procedures. (2) The complainant is requesting timeline using the complaint procedures * * * * * reimbursement or corrective action for a described in paragraphs (a) and (b) of (Authority: 20 U.S.C. 1439(a)(6) and (7)) violation that occurred not more than this section. (2) If an issue is raised in a complaint 15. Section 303.510 is revised to read three years before the date on which the filed under this section that has as follows: complaint is received by the public agency. previously been decided in a due process hearing involving the same § 303.510 Adopting complaint procedures. (Authority: 20 U.S.C. 1435(a)(10)) (a) General. Each lead agency shall parties— 17. Section 303.512 is revised to read adopt written procedures for— (i) The hearing decision is binding; as follows: (1) Resolving any complaint, and including a complaint filed by an § 303.512 Minimum State complaint (ii) The lead agency must inform the organization or individual from another procedures. complainant to that effect. (3) A complaint alleging a public State, that any public agency or private (a) Time limit, minimum procedures. agency’s or private service provider’s service provider is violating a Each lead agency shall include in its failure to implement a due process requirement of Part C of the Act or this complaint procedures a time limit of 60 decision must be resolved by the lead Part by— calendar days after a complaint is filed agency. (i) Providing for the filing of a under § 303.510(a) to— complaint with the lead agency; and (1) Carry out an independent on-site (Authority: 20 U.S.C. 1435(a)(10)) (ii) At the lead agency’s discretion, investigation, if the lead agency 18. Section 303.520 is amended by providing for the filing of a complaint determines that such an investigation is adding a new paragraph (d); and with a public agency and the right to necessary; revising the authority citation to read as have the lead agency review the public (2) Give the complainant the follows: agency’s decision on the complaint; and opportunity to submit additional (2) Widely disseminating to parents information, either orally or in writing, § 303.520 Policies related to payment for and other interested individuals, about the allegations in the complaint; services. including parent training centers, (3) Review all relevant information * * * * * protection and advocacy agencies, and make an independent (d) Proceeds from public or private independent living centers, and other determination as to whether the public insurance. (1) Proceeds from public or

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00132 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12537 private insurance are not treated as the text of the regulations. Some of the positions taken in these policy letters program income for purposes of 34 CFR commenters felt that all other notes that into the NPRM, they already have been 80.25. are not requirements should be deleted subjected to the public comment (2) If a public agency spends or otherwise moved to a nonregulatory process. It also would be confusing both reimbursements from Federal funds format, such as a technical assistance to parents and public agencies if the (e.g., Medicaid) for services under this document. Other commenters indicated longstanding policy interpretations were part, those funds are not considered that notes should be used only for not included in these final regulations, State or local funds for purposes of the guidance and examples, or clarifying because it would imply that the provisions contained in § 303.124. information, including appropriate provisions were no longer in effect. (Authority: 20 U.S.C. 1432(4)(B), 1435(a)(10)) references to recent legislative history. Moreover, it is important for parents, Discussion: In light of the comments (Note: This attachment will not be codified public agency staff, and others to be able in the Code of Federal Regulations.) received, certain changes with respect to to review all proposed changes to the notes in these final regulations are regulations at one time and in a single Attachment 1—Analysis of Comments appropriate and should be made. The context. and Changes Department does not regulate by notes. Although the new amendments place The following is an analysis of the Therefore, the substance of any note that greater emphasis on the participation of significant issues raised by the public should be a requirement should be disabled children in the general comments received on the NPRM incorporated into the text of the curriculum and on ensuring better published on October 22, 1997 (62 FR regulations. Information that was results for these children, the essential 55026), and a description of the changes contained in a note that provides rights and protections in prior law, made in the proposed regulations since meaningful guidance is reflected in the including the concept of the least publication of the NPRM. discussion of the relevant section of restrictive environment have been Except for relevant general comments these regulations in this Attachment so retained under the IDEA Amendments relating to the overall NPRM, which are that the public will have access to the of 1997, and, in many respects, have discussed at the beginning of this information. Information in any note been strengthened. Many of the analysis, specific substantive issues are that is not considered to be useful interpretations of prior law—including discussed under the subpart and section should simply be removed. those relating to the rights and of the regulations to which they pertain. Changes: Consistent with the above protections afforded under the law— References to subparts and section discussion, all notes have been removed continue to be relevant to implementing numbers in this attachment are to those as notes from these final regulations. Part B. Therefore, it would be contained in the final regulations. The substance of any note considered to inappropriate to exclude them from the This analysis generally does not be a requirement has been added to the final regulations. address— text of the regulations. Information in Changes: None. (a) Minor changes, including any note considered to provide Comment: Some commenters stated technical changes, made to the language clarifying information or useful that, in the preamble to the NPRM, the published in the NPRM; guidance has been incorporated into the characterization of prior law as focusing (b) Suggested changes the Secretary is discussion of the applicable comments simply on ensuring access to education not legally authorized to make under in this Attachment or, as appropriate, in is a misstatement and should be deleted. applicable statutory authority; Appendix A (Notice of Interpretation on The commenters indicated that the (c) The organizational structure of IEPs). Notes that are no longer relevant courts have traditionally acknowledged these regulations and the extent to have simply been deleted. A table is that disabled children were entitled to which statutory language is used; and included in attachment 3 that describes participate fully in all educational (d) Comments that express concerns the disposition of all notes in the programs and services available to all of a general nature about the NPRM. other students, and added that a correct Department or other matters that are not Comment: A few commenters stated interpretation of prior law is necessary directly relevant to these regulations, that the NPRM should have focused because of pending and new court cases. such as requests for information about only on implementing the IDEA Discussion: The broader innovative instructional methods or Amendments of 1997, and expressed interpretation of prior law raised by matters that lie within the purview of concern that it was used to regulate on commenters is the correct one. That State and local decision-makers. subjects addressed in previous policy characterization is reflected in the letters that should be published definition of FAPE (that, among other General Comments separately for public comment. These things, FAPE includes preschool, Comment: Some commenters stated commenters stated that the attempt to elementary, or secondary school that the notes in the regulations are bring forward in the NPRM policy education in the State), and in the extremely important because they letters that interpret prior law is provisions under §§ 300.304 (Full provide additional information and inappropriate because the new law has educational opportunity goal) and clarification. Other commenters a goal of including children with 300.305 (Program options). The expressed concerns about the extensive disabilities in the general curriculum statement in the preamble, however, use of notes throughout the NPRM and and improving results for these was reflective of the status of the raised questions about their legal status. children, in contrast to the focus in education of disabled children prior to Several of the commenters stated that prior law of simply providing disabled 1975—in which approximately one the number of notes should be children access to public schools. million of those children were excluded dramatically reduced because they go Discussion: Publishing a separate from public education, and of the well beyond clarification, creating a NPRM on longstanding policy letters is evolution of the program over a 22-year new interpretation that differs from the not in the best interests of the general period. statutory language. public because it would impose an Experience and research over that Many of the commenters stated that added burden on the reviewers and period have demonstrated that, as any note that is intended to be a would be inefficient, ineffective, and reflected in the statutory findings, the requirement should be incorporated into very costly. In fact, by incorporating the education of disabled children can be

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00133 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12538 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations more effective by having higher that it implies that school districts are that are subject to the requirements of expectations for those children, and responsible for some rehabilitation these regulations. Charter schools are ensuring their access to the general services, and that ‘‘independent living’’ also addressed in other sections of these curriculum, as well as other findings is a term of art, and not just an regulations (see analysis of comments (see section 601(c)(5) of the Act). educational enterprise. under §§ 300.18, 300.22, 300.241, and Therefore, it is correct to state that the Discussion: Section 300.1 includes the 300.312). 1997 amendments place greater statutory purposes that are specifically A change is not necessary to address emphasis on a results-oriented approach related to the Assistance for Education responsibility of an agency other than related to improving educational results of All Children with Disabilities an educational agency for services for disabled children than was true Program under Part B of the Act and to necessary for ensuring a free appropriate under prior law. these regulations, which are codified at public education including mental Changes: None. 34 CFR Part 300. Therefore, the list of health services. Section 300.142 Comment: Commenters requested statutory purposes contained in § 300.1 addresses interagency agreements and clarification relating to the ‘‘reserved’’ should be retained. the requirements of section 612(a)(12) of sections in the regulations, and Although statutory purposes relating the Act regarding methods of ensuring indicated that if regulatory language is to Part C have not been included in services. See discussion of § 300.142 in inserted into those reserved sections, these regulations, these purposes were this Analysis. the inserted language should be included as part of the regulations in 34 In light of the general decision to subjected to the same field input CFR Part 303 implementing Part C remove all notes from these final process that was used for the rest of the published in the Federal Register on regulations, the note following this regulations. April 14, 1998 (63 FR 18289). In section of the NPRM should be deleted. Discussion: The reserved sections are addition, although the second purpose The substance of this note, regarding the simply placeholders for future in section 601(d)(3) of the Act is applicability of these regulations to each regulations, if further regulations relevant to the successful public agency that has direct or become necessary. Any regulations that implementation of these regulations, delegated authority to provide special would be added to those reserved (i.e., ensuring that educators and education and related services in a State sections in the future would be subject parents have the tools necessary to receiving Part B funds, regardless of that to notice and comment in accordance improve educational results for children agency’s receipt of Part B funds, should with the Department’s rulemaking with disabilities) this statutory purpose be incorporated into the text of this procedures. These procedures include a is directed at the discretionary programs regulation. 90-day public comment period as under Part D of the Act, and not to the Changes: Section 300.2 has been required by section 607(a) of the Act. requirements under Part B. amended by redesignating the existing Changes: None. Independent living is an important paragraph (b) as paragraph (b)(1), by concept in the education of children adding public charter schools that are Subpart A with disabilities, as set forth in not otherwise included as LEAs or ESAs Purposes (§ 300.1) § 300.1(a). However, because the note and are not a school of an LEA or ESA goes beyond the stated purposes of these to the list of entities to which these Comment: Some commenters regulations and focuses on a provision regulations apply, and by removing the requested that § 300.1 be amended to from another law, it is confusing, and note to this section of the NPRM and include the new purposes under the note should be deleted. adding the substance of that note as sections 601(d)(2) of the Act (relating to Changes: The note following § 300.1 paragraph (b)(2) of this section. the early intervention program for has been deleted. A discussion of Definitions—General Comments infants and toddlers with disabilities independent living has been under Part C of the Act), and 601(d)(3) incorporated into Appendix A with Comment: Commenters recommended (relating to ensuring that educators and respect to transition services. that the final regulations should (1) parents have the tools necessary to include a master list of all terms used improve educational results for children Applicability to State, Local, and Private in these regulations and the specific with disabilities). Agencies (§ 300.2) section in which each term is defined; Some commenters expressed their Comment: A few commenters (2) add other relevant statutory terms in support of the emphasis on independent recommended that charter schools be the IDEA that were omitted from the living and preparation for employment included in the list of public agencies to NPRM (e.g., institution of higher in the Act and regulations. A few which these regulations apply, because education, nonprofit, parent commenters stated that the note these schools are sometimes treated by organization, parent training and following § 300.1 (that includes the State law as political subdivisions, and, information center, and SEA etc.); (3) definition of ‘‘independent living’’ from thus, would be subject to the update § 300.28 to add ‘‘elementary the Rehabilitation Act of 1973), sets requirements of these regulations. Other school,’’ ‘‘nonprofit,’’ and ‘‘SEA’’ to the forth the spirit of these regulations. commenters emphasized the importance list of relevant terms defined in the Other commenters requested that the of clarifying the formal obligations of Education Department General note be revised to clarify that the agencies other than educational Administrative Regulations (EDGAR); purpose of the note is not to disturb the agencies, particularly with respect to (4) define terms used in two or more longstanding understanding of FAPE for mental health services. subparts of these regulations, such as children with disabilities, and that Discussion: Because of the increasing consent, direct services, evaluation, maximization of educational services is attention that charter schools are personally identifiable, private school not required under Part B. receiving, it is appropriate to children with disabilities, and public Several commenters recommended specifically clarify that under the statute expense; and (5) that the master list of that the note be deleted. Some of these public charter schools that are not definitions in note 1 to this section of commenters stated that it is misleading otherwise already included as LEAs or the NPRM was not complete because it and confusing to include the purposes ESAs and are not a school of an LEA or omitted the definitions of the thirteen of other statutes in these regulations, ESA in the list of political subdivisions terms defined within the definition of

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00134 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12539

‘‘child with a disability,’’ the fifteen A definition of the term ‘‘parent Changes: References to the terms terms defined within the definition of training and information center’’ should defined in § 300.500—‘‘consent,’’ ‘‘related services,’’ and the four terms not be added, but the statutory ‘‘evaluation,’’ and ‘‘personally defined within the definition of ‘‘special definition of that term in section 602(21) identifiable’’—have been added as education.’’ of the Act is referenced in the sections §§ 300.8, 300.12, and 300.21 of these Some commenters requested that the of these regulations that use the term final regulations. Relevant terms from following definitions be deleted: (§ 300.506(d)(1)(i) (relating to EDGAR referenced throughout these ‘‘comparable services’’ (§ 300.455); mediation) and § 300.589(c)(4) (relating regulations have been added to § 300.30. ‘‘extended school year’’ (§ 300.309); to waiver of the nonsupplanting Notes 1 and 2 immediately preceding ‘‘meetings’’ (§ 300.501); and ‘‘financial requirement)), and the term ‘‘parent § 300.5 have been removed. An index to costs’’ (§ 300.142(e)), because none of training centers’’, which has been these regulations have been added as a the terms is defined in the statute, and dropped from § 300.660(b), would be new Appendix B, and a master list of the regulations should not exceed the replaced by a reference to the statutory the definitions of all terms used in this statute. Other commenters term. part has been included in the index recommended adding definitions of The disposition of the terms defined under the heading ‘‘Definitions of terms ‘‘change of placement;’’ ‘‘competent in §§ 300.142(e), 300.309, 300.455, and used under this part.’’ The abbreviations eighteen year old;’’ ‘‘developmental 300.501 of the NPRM is addressed in listed in Note 2 have been included in delay;’’ ‘‘school day;’’ ‘‘extra curricular each of the pertinent sections of this the text of the regulations, as described activities;’’ ‘‘functional behavioral attachment. in the above discussion. assessment;’’ ‘‘impeding behavior;’’ With respect to the term ‘‘adversely Assistive Technology Devices and ‘‘other agency personnel;’’ affects educational performance,’’ in Services (§§ 300.5 and 300.6) ‘‘paraprofessional;’’ ‘‘positive behavior order for a child to be eligible for Comment: Some commenters support or intervention plan;’’ and services under Part B, the child must recommended that assistive technology ‘‘positive behavioral intervention meet the two-pronged test established devices and services be listed as a strategies.’’ under § 300.7(a), which reflects the related service under § 300.22, as well A few commenters expressed concern statutory definition in section 602(3) of as defined separately under §§ 300.5 with the use of ‘‘adversely affects the Act. This means that the child has and 300.6. Some commenters also educational performance’’ throughout one of the listed conditions that recommended changes that would alter § 300.7(b) as potentially limiting the adversely affects educational the statutory definitions of these terms. services that are provided to disabled performance, and who, because of that A few commenters requested that children, especially those children who condition, needs special education and §§ 300.5 and 300.6 be amended to add are academically gifted but who still related services. Revising this language language clarifying that assistive need transition services to in the manner suggested by commenters technology devices and services are postsecondary education, and could result in an unwarranted only required for a disabled child if recommended that a definition of this expansion of eligibility under Part B. It necessary for the child to benefit from term be added to the regulations. should be pointed out that a child who special education. A few commenters Discussion: It would make the is academically gifted but who may not stated that the regulations should clarify regulations more useful to parents and be progressing at the rate desired is not public agency responsibility for others by: (1) Adding to Subpart A the automatically eligible under Part B. providing personal devices, such as definitions of terms of general Neither is the child automatically eyeglasses, hearing aids, braces and applicability (e.g., consent, evaluation, ineligible. Rather, determinations as to a medication, while other commenters and personally identifiable) that are child’s eligibility for services under Part recommended that the regulations make used in two or more subparts of these B must be made on a case-by-case basis explicit that public agencies are not final regulations, and (2) adding to in accordance with applicable responsible for providing personally- § 300.30, previously § 300.28 of the evaluation procedures. prescribed devices under these NPRM, relevant terms used in these In light of the general decision to regulations. Commenters also requested regulations that are defined in EDGAR remove all notes from these final that the regulations include examples of (e.g., elementary school, secondary regulations, Notes 1 and 2 following the assistive technology devices for school, nonprofit, and State educational subheading ‘‘Definitions’’ and children, including a range of high to agency). immediately preceding § 300.5 in the low technology devices, such as It also would make the regulations NPRM should be deleted. Note 1 listed postural supports, mobility aids, and more useful to include an alphabetical the terms defined in specific sections of positioning equipment. Commenters master list of the definitions of terms the NPRM. As stated earlier in this also requested clarification on how used in this part, and the specific discussion, those terms should be school districts draw distinctions section in which each term is defined, included in a master list of definitions between a child’s need for an assistive including terms of general applicability in a newly-created index to these final technology device and a parent’s desire (e.g., FAPE and IEP), terms used in a regulations. Note 2 contained for the child to have the newest and best single section or subpart (e.g., ‘‘illegal abbreviations of common terms used in device on the market. drug’’ and ‘‘weapon’’), and individual these regulations (e.g. the use of ‘‘FAPE’’ Discussion: As stated in the note terms used in the definitions of ‘‘child for ‘‘free appropriate public education’’). following § 300.6 of the NPRM, the with a disability,’’ ‘‘related services,’’ In lieu of listing those abbreviations in definitions of ‘‘Assistive technology and ‘‘special education.’’ These a note, each term should be included device’’ and ‘‘Assistive technology regulations should include an index that parenthetically in the text of the service’’ in sections 602(1) and 602(2) of identifies the key terms used in the regulations as that term appears; and, the Act are substantially identical to the regulations and lists the specific section thereafter, either the abbreviation or the definitions of those terms used in the in which each term is used; and the full term may be used interchangeably, Technology-Related Assistance for master list of definitions of the terms depending on the context in which it is Individuals with Disabilities Act of should be included in the index. used. 1988, as amended (Tech Act). Since

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00135 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12540 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

§§ 300.5–300.6 essentially adopt the be informed about those devices and the operation and maintenance of statutory definitions of these terms, no services for purposes of implementing technology. changes to these statutory definitions these regulations. Examples of assistive Finally, § 300.308 of these final should be made in these final technology devices and services and regulations should be amended to regulations. However, consistent with other relevant information may be clarify that, on a case-by-case basis, the Part B, the words ‘‘child with a available through one of the technical use of school-purchased assistive disability’’ were substituted for the assistance providers funded by the technology devices in a child’s home or statutory reference to individual with a National Institute on Disability and in other settings is required if the child’s disability found in the definitions Rehabilitation Research in the Office of IEP team determines that the child contained in the Tech Act. In addition, Special Education and Rehabilitative needs to have access to those devices in in light of the general decision not to Services (OSERS) or other technical order to receive FAPE. The assistive use notes in these final regulations, the assistance providers funded by OSERS. technology devices that are necessary to note to § 300.6 of the NPRM should be Changes: The note following § 300.6 ensure FAPE must be provided at no removed. has been removed. cost to the parents, and the parents Section 300.308 of these regulations Comment: Some commenters asked cannot be charged for normal use, and specifies that an assistive technology for clarification that (1) the statutory wear and tear. However, while device or service is only required if it provision encompasses both a child’s ownership of the device in these is determined, through the IEP process, own assistive technology needs (e.g., circumstances would remain with the to be (1) special education, as defined in electronic note takers, cassette public agency, State law, rather than § 300.26, (2) related services, as defined recorders, and speech synthesizers), as Part B, generally would govern whether in § 300.24, or (3) supplementary aids well as access to general technology parents are liable for loss, theft, or and services, as defined in § 300.28. No used by all students, (2) a child with a damage due to negligence or misuse of further clarification should be provided, disability may take assistive technology publicly owned equipment used at and references to § 300.308 should not devices home for use on homework and home or in other settings in accordance be included in the definitions of other assignments, as well as for use in with a child’s IEP. ‘‘related services’’ under § 300.24 or the community, and (3) school districts Changes: No change has been made to ‘‘special education’’ under § 300.26. have continuing responsibility for this section in response to these Section 300.308 is sufficient to explain installation, repair, and maintenance of comments. However, § 300.308 has been how a determination about a child’s devices. These commenters added that amended, consistent with the above need for an assistive technology device in order to fully benefit from assistive discussion. or service is made. technology, children with disabilities As a general matter, public agencies Child With a Disability (§ 300.7) are not responsible for providing must be able to use it on all school-work personal devices, such as eyeglasses or assignments, whether done in the Comment: A number of commenters hearing aids or braces, that a disabled classroom or at home or in the requested that the definition of child requires regardless of whether he community; and LEAs must ensure that developmental delay be consistent or she is attending school. However, if children, their teachers, and other across both Part B and the early a child’s IEP team specifies that a child personnel receive the necessary in- intervention program under Part C. The requires a personal device in order to service instruction on the operation and commenters stated that defining the receive FAPE, the public agency must maintenance of technology. Other term consistently across all age ranges provide the device at no cost to the commenters requested that the final will help to avoid confusion, enhance child’s parents. Consistent with section regulations specify in the text of the transition, and conform to diagnostic 612(a)(12) of the Act, public agencies regulations or in a note (1) the right of procedures. Other commenters that are otherwise obligated under children with disabilities to take devices requested that States not be allowed to Federal or State law or assigned home or to other settings, as needed, establish their own definitions of responsibility under State policy or and (2) the issue of ownership and developmental delay because of the risk interagency agreement or other responsibility. of inequitable services across State mechanisms to provide or pay for any Discussion: The provision of assistive lines. services that are also considered special technology devices and services is Several commenters requested that education or related services, including limited to those situations in which they children with sensory disabilities (such devices that are necessary for ensuring are required in order for a disabled child as deafness or blindness) not be FAPE, must fulfill that obligation or to receive FAPE. However, subject to included under the developmental responsibility, either directly or through this limitation, commenters are correct delay designation, because a sensory contract or other arrangement. that (1) ‘‘assistive technology’’ disability is a permanent condition and Regarding responsibilities relative to encompasses both a disabled child’s not a delay. Some commenters medication under § 300.5, medication is own personal needs for assistive requested that LEAs be required to an excluded ‘‘medical service,’’ and is technology devices (e.g., electronic note- justify, through assessment and not the responsibility of a public agency takers, cassette recorders, etc), as well as elimination of specific disabilities, why under these regulations; therefore, the access to general technology devices a child is identified as developmentally change suggested by commenters is not used by all students, and (2) if an delayed. One of the commenters stated warranted. eligible child is unable, without a that LEAs must be required to include Further examples of assistive specific accommodation, to use a assessment of uneven patterns of technology are not necessary within technology device used by all students, development as part of the these regulations. Because the the agency must ensure that the determination of developmental delay, definitions of assistive technology necessary accommodation is provided. and added that developmental delay devices and services have been included Further, commenters are correct that should be utilized for individual cases in these regulations for over five years LEAs must ensure that students, their where the child’s disability cannot be and have been included in the Tech Act teachers, and other personnel receive identified, although delays are since 1988, most public agencies should the necessary in-service instruction on manifested in the child.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00136 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12541

A few commenters recommended that disability categories in § 300.7(a) and (c) § 300.7(a)(2)(i) and (ii) of the NPRM; and the regulations make clear that (1) the for those children who have been a new § 300.313 has been added that broad definition of developmental delay evaluated in accordance with clarifies the circumstances under which must not be used to deny proper §§ 300.530–300.536 as having one of the the DD designation is used, reflecting evaluations, and (2) a full, listed disabilities and who because of the substance of proposed comprehensive evaluation of each child that disability need special education § 300.7(a)(2)(iii) and Notes 2 and 3 to must be conducted in all areas of and related services. Although States this section of the NPRM. Notes 2 and suspected disability so that the child’s traditionally have had the authority to 3 to this section of the NPRM have been particular educational and other require LEAs to adopt State policies, deleted. Paragraph (b) of the NPRM has disability-related needs can be new section 602(3)(B) of the Act, unlike been redesignated as paragraph (c) in effectively addressed. the provision in prior law, provides that these final regulations. Some commenters disagreed with the implementation of the provision related Comment: A variety of comments language in Note 2 prohibiting States to serving children under the proposing various changes in that have adopted developmental delay developmental delay designation is at definitions was received regarding the from requiring LEAs to also adopt the the discretion of both the State and the terms ‘‘deaf-blindness,’’ ‘‘emotional provision, since LEAs, as agents of the LEA. New § 300.313 reflects this disturbance,’’ ‘‘hearing impairment,’’ State, may be directed by the State to statutory change. ‘‘multiple disability,’’ ‘‘speech or enforce what the State has adopted. Under the statute, States also have the language impairment,’’ ‘‘mental Other commenters recommended that discretion to apply the term retardation,’’ ‘‘orthopedic impairment,’’ the regulations make clear that an LEA developmental delay to children who ‘‘specific learning disability,’’ is not required to indicate why a child have an identified sensory disability ‘‘traumatic brain injury,’’ and ‘‘visual is in a developmental delay category (such as deafness or blindness) or any impairment including blindness.’’ Other rather than in a disability category, and other permanent condition (such as a commenters supported the existing that an LEA is not required to categorize significant cognitive disability), or to definitions but suggested some the child as having one of the thirteen use the specific categories. However, modifications. Some commenters stated disabilities before using the States must ensure that children with that the term deaf-blindness, as defined developmental delay designation. sensory impairments or other in the NPRM, mistakenly labels these Discussion: The term ‘‘developmental permanent conditions are evaluated in children’s disability as causing delay’’ is a statutory term that is all areas of suspected disability, and educational problems as if the child is included in both Parts B and C of the that the educational and other a burden to the system. These Act. A definition of developmental disability-related needs of these commenters requested that the delay, substantially similar to the children identified through applicable definition be amended to replace definition in § 300.7(a)(2) of the NPRM, evaluation procedures are appropriately ‘‘problems’’ with ‘‘needs’’. The should be retained in these final addressed. commenters made the same statement regulations. Because of the numerous It is important to ensure that the with respect to the term ‘‘multiple questions raised by commenters about broad definition of developmental delay disability.’’ the application of this definition, it is is not used to deny children proper Discussion: In light of the general determined that a new paragraph evaluations. In all cases, evaluations decision not to use notes in these final describing requirements governing the must be sufficiently comprehensive to regulations, Note 1 to this section of the use of the developmental delay ensure that children’s needs are NPRM should be removed. While the designation should be added to these appropriately identified. The provisions characteristics of ‘‘autism’’ are generally final regulations as § 300.313. In light of in §§ 300.530–300.536 of these evident before age three, a child who these changes, the definition of regulations should ensure that manifests characteristics of the category ‘‘developmental delay’’ would be placed evaluations of children in States and ‘‘autism’’ after age three still can be in paragraph (b) of § 300.7 of these final LEAs that use the developmental delay evaluated as having autism, if the regulations, and paragraph (b) of this designation are sufficiently criteria in the definition are satisfied. section of the NPRM would be comprehensive to address the full range Because of the importance of this redesignated as a new paragraph (c). of these children’s needs. It would not clarification, the definition of autism in Also, in light of the general decision be appropriate to require public § 300.7(c)(1) should be amended to not to use notes in these final agencies to justify why a child is incorporate the substance of Note 1 to regulations, Notes 2 and 3 following this identified as developmental delay rather this section of the NPRM. While there section of the NPRM should be than under one of the other disability is merit to many of the proposed removed, and the substance of these designations in these regulations. changes to definitions and terms, notes would be incorporated into the Changes: Section 300.7 has been modifications to the substance of new § 300.313. This new section will (1) amended by adding a new paragraph existing definitions should be subject to set out the requirements for States and (a)(2) to clarify that if a child has one further review and discussion before LEAs in using the developmental delay of the disabilities listed in paragraph (a) changes are proposed. For example, as designation; (2) clarify that States and of this section but only needs a related indicated in the preamble to the NPRM LEAs may use the developmental delay service and not special education that (62 FR 55026–55048 (Oct 22, 1997)), the designation for any child who has an child is not a child with a disability Department plans to carefully review identifiable disability, provided all of under this part, unless the related research findings, expert opinion, and the child’s identified needs are service is considered special education practical knowledge over the next addressed; and (3) clarify that a State rather than a related service under State several years to determine whether may, but is not required to, adopt a standards. Paragraph (a)(2) of the NPRM changes should be proposed to the common definition of developmental has been redesignated as paragraph (b) procedures for evaluating children delay for Parts B and C. of these final regulations, entitled suspected of having specific learning States electing to adopt the term ‘‘children aged three through nine disabilities. Any changes to the developmental delay are not prohibited experiencing developmental delays,’’ definition of this term should also be from also continuing to use the which incorporates the definition in considered in light of that review.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00137 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12542 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

As indicated in the NPRM, no ADHD be specified as a separate the eligibility process in §§ 300.534– substantive changes are made to the disability category under these 300.535. A suggestion was made by definition of the term ‘‘emotional regulations. Many of these commenters, commenters that the regulations disturbance’’ in § 300.7(c)(4). With parents of children with ADD/ADHD, emphasize that educational impact must respect to the use of the term described the tremendous problems be the basis for determining eligibility of ‘‘emotional disturbance’’ instead of they have had, and are having, in those children for special education ‘‘serious emotional disturbance,’’ the obtaining appropriate services for their because, according to commenters, at Senate and House committee reports on children. Of particular concern to these least 25 percent of the children referred Pub. L. No. 105–17 include the commenters was that ADD/ADHD is not for evaluation, who had been diagnosed following statement: expressly listed in the regulations; medically as ADD/ADHD, were The Committee wants to make clear that additionally, commenters were experiencing few, if any, educational changing the terminology from ‘‘serious concerned that discussing ADD/ADHD problems at the time of their referrals. emotional disturbance’’ to ‘‘serious emotional in a note would not be adequate. One Discussion: Note 5 following § 300.7 disturbance [hereinafter referred to as commenter noted that the regulations was included in the NPRM to reflect the ‘emotional disturbance’]’’ in the definition of should clarify that a disabled child Department’s longstanding policy a ‘‘child with a disability’’ is intended to needs only one, not two, disabilities in memorandum relating to the eligibility have no substantive or legal significance. It order to be eligible under these of children with ADD/ADHD. However, is intended strictly to eliminate the pejorative regulations. A few commenters although some of the commenters who connotation of the term ‘‘serious.’’ It should recommended that schools not require favor deleting Note 5 indicate that some in no circumstances be construed to change an additional evaluation for a child with children with ADD/ADHD are receiving the existing meaning of the term under 34 services under these regulations, CFR § 300.7(b)(9) as promulgated September ADD/ADHD under other health 29, 1992. (S. Rep. No. 105–17, p. 7; H.R. Rep. impairment once the child has been experience and the numerous comments No. 105–95, p. 86 (1997).) diagnosed and has qualified under received have demonstrated that the another disability category, noting that Department’s policy is not being fully In light of the general decision not to schools have placed burdens on and effectively implemented. use notes in these final regulations, Note children and their families by It is important to take steps to ensure 4 to this section of the NPRM should be requesting that ADD/ADHD be re- that children with ADD/ADHD who removed. In response to suggestions of diagnosed by using different procedural meet the criteria under Part B receive commenters, the definitions of deaf- qualification requirements when the special education and related services in blindness and multiple disability child with ADD/ADHD moves from one the same timely manner as other should be revised to eliminate the qualifying category (such as learning children with disabilities. Therefore, the negative connotation of the language in disabilities or emotional disturbance) to definition of ‘‘other health impairment’’ the current definitions, and the word the other health impairment category. at § 300.7(c)(9) of these final regulations ‘‘needs’’ should replace the word Other commenters requested that should be amended to add ADD/ADHD ‘‘problems.’’ However, these changes, in Note 5 be deleted because it exceeds to the list of conditions that could no way, are intended to alter which statutory authority and would increase render a child eligible under this children are considered eligible under the regulatory burden on LEAs by giving definition, and the list of conditions in these categories. the false impression that children with § 300.7(c)(9) should be rearranged in Changes: Note 1 to this section of the ADD/ADHD are automatically protected alphabetical order. Following the phrase NPRM has been removed, and the by the IDEA Amendments of 1997. ‘‘limited strength, vitality or alertness,’’ definition of ‘‘autism’’ in § 300.7(c)(1) of Some of these commenters stated that and prior to the phrase, ‘‘that adversely these final regulations has been children with ADD/ADHD may be affects educational performance,’’ the amended to specify that if a child eligible for services under the Act, and, words ‘‘including a child’s heightened manifests characteristics of ‘‘autism’’ if they are eligible, are receiving alertness to environmental stimuli that after age three, the child could be services, but added that it is not results in limited alertness with respect diagnosed as having ‘‘autism’’ if the appropriate to enumerate in the Act or to the educational environment’’ should criteria in the definition of ‘‘autism’’ are regulations all conditions, e.g., be added. satisfied. The definitions of deaf- Tourette’s Syndrome, that may qualify These changes are needed to clarify blindness and multiple disability have children for special education and the applicability of the ‘‘other health been revised to replace ‘‘problems’’ with related services. Other commenters impairment’’ definition to children with ‘‘needs.’’ indicated that the definition of ADD/ ADD/ADHD. The clarification with Note 4 to this section of the NPRM ADHD is so vague it fits all children, respect to ‘‘limited strength, vitality, or has been removed, and the substance of and added that the most damaging alertness’’ is essential because many Note 4 is reflected in the above potential abuse comes from over- children with ADD/ADHD actually discussion. identification of poor and minority experience heightened alertness to Comment: A large number of children who will get the label and the environmental stimuli, which results in commenters expressed support for reduced expectations that accompany it. limited alertness with respect to their retaining Note 5, and agreed with the Some commenters stated that the educational environment. In light of clarification that attention deficit discussion in Note 5 of ‘‘limited these regulatory changes, Note 5 to this disorder (ADD) and attention deficit alertness’’ as ‘‘heightened alertness’’ is section of the NPRM should be removed hyperactivity disorder (ADHD) are exceptionally loose and could result in as a note, and other portions of Note 5 conditions that may make a child the largest expansion of eligible are reflected in the following eligible under § 300.7. As an alternative, children in IDEA history. discussion. A child with ADD/ADHD these and other commenters suggested Several commenters stated that the may be eligible under Part B if the that ADD/ADHD be listed as examples diagnosis of ADHD/ADHD does not child’s condition meets one of the of conditions that could make a child require a medical evaluation if the disability categories described in eligible under the ‘‘other health disability is diagnosed by a school or § 300.7, and because of that disability, impairment’’ category at § 300.7(c)(9). A licensed psychologist, and the need for the child needs special education and few commenters requested that ADD/ special education is determined through related services. Children with ADD/

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00138 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12543

ADHD are a very diverse group; some impairment category. Part B does not in this category have increased. Further, children with ADD/ADHD who are require that a particular type of the definition of ADD/ADHD is not so eligible under Part B meet the criteria evaluation be conducted to establish loose that it could result in the largest for ‘‘other health impairments.’’ Those any child’s eligibility under these expansion of eligible children in IDEA children would be classified as eligible regulations; rather, the evaluation history. As previously stated, many for services under the ‘‘other health requirements in §§ 300.530–300.536 are children with ADD/ADHD are not impairments’’ category if (1) the ADD/ sufficiently comprehensive to support eligible under Part B. If appropriate ADHD is determined to be a chronic individualized evaluations on a case-by- evaluations are conducted in health problem that results in limited case basis, including the use of accordance with §§ 300.530–300.536, alertness, that adversely affects professional staff appropriately the result of the evaluations should be educational performance, and (2) qualified to conduct the evaluations the inclusion of only those children special education and related services deemed necessary for each child. with ADD/ADHD who are eligible for, are needed because of the ADD/ADHD. In accordance with these procedures, and have an entitlement to, special All children with ADD/ADHD clearly if a determination is made that a education and related services under are not eligible to receive special medical evaluation is required in order Part B. education and related services under to determine whether a child with ADD/ Changes: The definition of ‘‘other these regulations, just as all children ADHD is eligible for services under Part health impairment’’ at § 300.7(c)(9) has who have one of the other conditions B, such an evaluation must be been amended to add ADD/ADHD to the listed under the other health conducted at no cost to the parents. In list of conditions that could render a impairment category are not necessarily all instances, as is true for all children child eligible under this definition, and eligible (e.g., children with a heart who may be eligible for services under the list of conditions in § 300.7(c)(9) has condition, asthma, diabetes, and Part B, each child with ADD/ADHD who been rearranged in alphabetical order. rheumatic fever). is suspected of having a disability must Following the phrase ‘‘limited strength, Some children with ADD/ADHD may be assessed in all areas related to the vitality, or alertness,’’ and prior to the be eligible under other categories, such suspected disability, including, if phrase, ‘‘that adversely affects as ‘‘emotional disturbance’’ appropriate, health, vision, hearing, educational performance,’’ the words (§ 300.7(c)(4)) or ‘‘specific learning social and emotional status, general ‘‘including a child’s heightened disability’’ (§ 300.7(c)(10)) if they meet intelligence, academic performance, alertness to environmental stimuli that the criteria under those categories. communicative status, and motor results in limited alertness with respect Regardless of what disability abilities. (§ 300.532(g)). to the educational environment’’ have designation is attached, children with There is no requirement under these been added to clarify the applicability of ADD/ADHD meeting the criteria for any regulations that a medical evaluation be the other health impairment definition of the listed disabilities under these conducted to accomplish these to children with ADD/ADHD. Note 5 to regulations must receive the specialized assessments. Even if a State requires this section of the NPRM has been instruction and related services that a medical evaluation be included as removed. designed to address their individualized part of all evaluations to determine Day; Business Day; School Day (§ 300.9) needs arising from the ADD/ADHD. No eligibility for the other health child is eligible for services under the impairment category, it must also Comment: Some commenters Act merely because the child is ensure that any necessary evaluations indicated support for the definition of identified as being in a particular by other professionals, such as ‘‘day’’ as written. Many commenters disability category. Children identified psychologists, are conducted and requested that the term be revised to as ADD/ADHD are no different, and are considered as part of the eligibility define ‘‘school day’’ and ‘‘business eligible for services only if they meet the determination process. Whether or not day,’’ since these are key terms that are criteria of one of the disability public agencies will be required to used throughout the Act and categories in Part B, and because of their conduct an additional evaluation for a regulations. Some of the commenters impairment, need special education and child with ADD/ADHD under other recommended similar definitions of the related services. health impairment once the child has terms, ‘‘school day’’ and ‘‘business day’’ Other children with ADD/ADHD may been evaluated and has qualified under (e.g., ‘‘school day’’ means days when have a diagnosed medical condition another disability category will depend children are attending school and (and need medication) but may not on whether sufficient evaluation ‘‘business day’’ means days when a require any special education or information exists to enable school school is open for business and otherwise be eligible under these district officials to ensure, consistent administrative personnel are working). regulations. These children may be with § 300.532(g), that each child is One definition proposed by commenters covered by the requirements of section assessed in all areas of suspected included staff development day as a 504 of the Rehabilitation Act of 1973 disability. school day. Several commenters asked (Section 504) and its implementing Because these determinations will when a partial day might be considered regulation in 34 CFR Part 104. necessarily depend on the individual a ‘‘day,’’ if inservice or staff With respect to commenters’ needs of the child and the development days are considered suggestions that the diagnosis of ADD/ circumstances surrounding the business days, and what holidays are to ADHD does not require a medical evaluation, a change is not needed. be used, as school districts and States evaluation if the disability is diagnosed With respect to the concern of vary in this regard. Other commenters by a school or licensed psychologist, a commenters that the most damaging requested that there be no reference to change is not needed in these potential abuse from the definition will ‘‘calendar day’’ or ‘‘day,’’ but that regulations. Also, it would not be be the over-identification of poor and instead the definitions of ‘‘school day’’ appropriate to make a change to respond minority children, there is no indication and ‘‘business day’’ be incorporated into to commenters’ suggestion that a that children from minority these regulations. Some of the medical evaluation is required for a backgrounds have been commenters indicated that the use of child with ADD/ADHD to establish disproportionately identified as ADD/ ‘‘calendar day’’ can place an impractical eligibility under the other health ADHD even as the numbers of children time standard on school systems when

VerDate 03-MAR-99 17:45 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00139 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm01 PsN: 12MRR2 12544 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations actions are required and a school may The definition of ‘‘day,’’ while that definition replaces the definition of the not be open for business. term was not previously defined in the term ‘‘intermediate educational unit’’ Discussion: It is necessary, to avoid regulations, represents the Department’s (IEU) in § 300.8 of the current confusion and ensure clarity, to amend longstanding interpretation that the regulations. The use of the term the definition of ‘‘day’’ to include term ‘‘day’’ means calendar day. (See, ‘‘educational service agency’’ was not definitions of both ‘‘school day’’ and e.g., NPRM published August 4, 1982, intended to exclude those entities that ‘‘business day.’’ Both ‘‘school day’’ and 47 FR 33836–33840 describing the 30- were considered IEUs under prior law. ‘‘business day’’ are used to implement day time line from determination of This interpretation is supported by the new provisions added by Pub. L. 105– eligibility to initial IEP meeting as ‘‘30 legislative history, which makes explicit 17: The term ‘‘school day’’ is used only calendar days.’’) This interpretation is that most definitions in prior law have with respect to discipline procedures consistent with generally-recognized been retained, and, where appropriate, and appears in §§ 300.121(c)(1) and authority on statutory interpretation. updated. S. Rep. No. 105–17 at 6., and (c)(2), and 300.520(a)(1) and (c). The (See Sutherland Stat. Const. § 33.12 (5th H.R. Rep. No. 105–95 at 86. With term ‘‘business day’’ is used in Ed.)). In addition, the statute itself uses respect to ‘‘educational service agency,’’ §§ 300.509(b) (Additional disclosure of three different terms, ‘‘day,’’ ‘‘business the Reports explain that this definition information requirement); 300.520(b) day,’’ and ‘‘school day,’’ so it would be has been updated ‘‘to reflect the more (Authority of school personnel); and inappropriate to interpret ‘‘day’’ to be contemporary understanding of the 300.528(a)(1) (Expedited due process the same as either ‘‘business day’’ or broad and varied functions of such hearing). In addition, the phrase ‘‘school day.’’ agencies.’’ Id. ‘‘business days (including holidays that Finally, altering the interpretation of Although there were no comments fall on a business day)’’ is used in ‘‘day’’ from the longstanding regarding this definition, the application § 300.403(d)(1)(ii) (Placement of interpretation as ‘‘calendar day’’ would of the term ‘‘educational service children by parents in a private school raise significant concerns about agency’’ to entities covered under the or facility if FAPE is at issue.) compliance with the terms of section definition of IEU in prior law has been ‘‘School day’’ means any day that 607(b) of the Act, especially as to questioned. The definition of IEU did children are in attendance at school for timelines that affect the rights of parents not refer explicitly to public elementary instructional purposes. If children and children with disabilities such as and secondary schools. However, the attend school for only part of a school (1) the timeline in § 300.343 (relating to definition of ‘‘educational service day and are released early (e.g., on the holding an initial IEP meeting for a agency’’ makes specific references to an last day before Christmas or summer child), and (2) the procedural safeguards entity’s administrative control over vacation) that day would be considered in Subpart E, including § 300.509(a)(3) public elementary and secondary to be a school day. However, it is (hearing rights—timeline for disclosure school. This definition could be expected that the term ‘‘school day,’’ of evidence); § 300.511(a) and (b) misinterpreted as excluding from the including partial school day, has the (timelines for hearings and reviews); educational service agency definition same meaning for all children in school, and § 300.562(a) (access rights relating those entities in States that serve including children with and without to records). preschool-aged children with disabilities. There also are other provisions in disabilities but do not have The term ‘‘business day’’ is used in these regulations that include timelines administrative control and direction the statute and regulations in relation to that have always been interpreted to be over a public elementary or secondary actions by school personnel and calendar day timelines—including the school. Therefore, to avoid any parents. While school personnel could (1) 30-day public comment period in confusion about the use of this new reasonably be expected to know when § 300.282, (2) by-pass procedures under terminology, a statement should be administrative staff are working, very Subpart D, (3) notice and hearing added to the definition to clarify that often this information is not readily procedures in §§ 300.581–300.586 that the term ‘‘educational service agency’’ available to parents, nor is it likely to be the Department uses before determining includes entities that meet the consistent from one LEA to another, or that a State is not eligible under Part B, definition of IEU in section 602(23) of from the SEA to an LEA. If ‘‘business and (4) 60-day timeline under the State IDEA as in effect prior to June 4, 1997. day’’ were interpreted to be days when complaint procedures in § 300.661. The school offices are open and majority of those timelines have been in Changes: Consistent with the above administrative staff are working, it effect since 1977, and, in light of the discussion, a statement has been added could actually be impossible for parents clear distinction in the IDEA at the end of the definition to clarify to know with any certainty the date in Amendments of 1997 between days, that the definition of ‘‘educational advance of a due process hearing on school days, and business days, there is service agency’’ includes entities that which they would have to share no basis for changing other timelines in meet the definition of IEU in section evidence to be introduced at the hearing the regulations. 602(23) of IDEA as in effect prior to June with the other party to the hearing (see Changes: The name of the section in 4, 1997. § 300.509). Therefore, this term is the NPRM has been changed to ‘‘Day; Equipment (§ 300.11) interpreted to be a commonly business day; school day’’ in these final understood measure of time, Monday regulations. Definitions of ‘‘school day’’ Comment: One comment stated that through Friday except for Federal and and ‘‘business day’’ have been added to the reference to ‘‘books, periodicals, State holidays, unless holidays are reflect the above discussion. documents, and other related materials’’ specifically included, as in be deleted from § 300.10(b) because § 300.403(d)(1)(ii). Educational Service Agency (§ 300.10) materials and equipment are accounted Including definitions of ‘‘school day’’ Comment: None. for differently in the budget. A few and ‘‘business day’’ will reduce Discussion: The definition of commenters recommended that the confusion about the meaning of these ‘‘educational service agency’’ in definition of ‘‘equipment’’ be amended terms and should facilitate meeting the § 300.10 of these final regulations to add that (1) any instructional or various timelines in the Act and adopts the statutory definition of this related materials be provided in regulations. term in section 602(4) of the Act. This accessible formats, as appropriate; and

VerDate 03-MAR-99 17:45 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00140 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm01 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12545

(2) any technological aids and services a key factor in ensuring better results for clarify that the IEP team may also serve be accessible. these children. as the placement team. Discussion: The definition of The definition in § 300.12 would not Changes: The note following this ‘‘equipment’’ is a standard statutory have imposed a national curriculum, section of the NPRM has been removed. definition that is used in most but only clarified what the statutory Local Educational Agency (§ 300.18) elementary and secondary education term ‘‘general curriculum’’ means. As programs funded by the Department. the term is used throughout the Act and Comment: A number of commenters Therefore, efficient administration of congressional report language, the clear expressed concern about the note on Federal programs would not be served implication is that, in each State or public charter schools following by revising the definition in the ways school district, there is a ‘‘general § 300.17 of the NPRM, stating that it suggested by the commenters. In curriculum’’ that is applicable to all provides an inadequate and too limited appropriate situations, public agencies children. A major focus of the Act— explanation of the responsibilities of are required by section 504 of the especially with respect to the new IEP those schools under these regulations Rehabilitation Act of 1973 and title II of provisions—is ensuring that children (i.e., it focuses only on public charter the Americans with Disabilities Act with disabilities are able to be involved schools that are ‘‘LEAs’’ under State law (ADA) to ensure that instructional or in and progress in the ‘‘general and excludes public charter schools that related materials are provided in curriculum.’’ For example, the Senate are defined by State law as being part of accessible formats and that and House committee reports on Pub. L. an LEA). technological aids and services are No. 105–17 state that— Some of the commenters requested accessible to students with disabilities that the note be modified to clarify that [t]he new focus is intended to produce or can be made accessible, to afford public charter schools must comply attention to the accommodations and with these regulations whether or not students with disabilities an equal adjustments necessary for disabled children opportunity to participate in their to have access to the general education they receive Part B funds. Commenters programs. curriculum and the special services which believe that this clarification is Changes: None. may be necessary for appropriate particularly important because, participation in particular areas of the according to the commenters, services to General Curriculum curriculum due to the nature of the disabled children in some public charter Comment: Several commenters disability. (S. Rep. No. 105–17, p. 20; H.R. schools have been dismantled, and indicated support for the definition of Rep. No. 105–95, p. 100 (1997)). parents have been asked to waive their ‘‘general curriculum,’’ and for the note Even as school systems offer more children’s rights under Part B as a clarifying that the term relates to the choices to students, there still is a condition of enrollment in the schools. content of the curriculum and not the common core of subjects and Other commenters requested that the setting in which it is used. Some curriculum areas that is adopted by each note be dropped and that § 300.241 commenters stated that, as written, the LEA or schools within the LEA, or, (Treatment of public charter schools and definition should preclude any where applicable, the SEA, that applies their students) clarify that all charter likelihood of the ‘‘general curriculum’’ to all children within each general age schools must comply with the being identified with the ‘‘low’’ track. grouping from preschool through requirements of Part B of the Act. The Some commenters recommended that secondary school. Appropriate access to commenters added that this action the substance of the note be integrated the general curriculum must be would consolidate all public charter into the definition or made other provided. The development and school requirements into one regulatory suggestions to strengthen the idea that implementation of IEPs for each child provision. A few commenters requested the general curriculum applies to with a disability must be based on that the regulations include a provision children with disabilities wherever they having high, not low, expectations for requiring that LEAs in which charter are educated. Other commenters the child. schools are physically located describe disputed that there is a ‘‘general In light of the concerns of the to the State how they will ensure that curriculum,’’ pointing to the variety of commenters and the principle of children with disabilities receive special common courses offered by many regulating only to the extent necessary, education and related services under school districts, the need of some proposed § 300.12 should be removed this part, even when the charter school children for a functional life-skills from the final regulations. Instead the is not otherwise under the jurisdiction curriculum or the needs of students in regulations should emphasize the of the LEA. alternative programs (e.g., moderate importance of the ‘‘general curriculum’’ Discussion: In light of the general disabilities, significant or profound, concept in the IEP provision under decision not to use notes in these final autism, etc.) who may be pursuing an which the term is used. regulations, the note following § 300.17 alternative certificate rather than a Changes: The definition of ‘‘general of the NPRM should be removed. diploma. Other commenters requested curriculum’’ in § 300.12 of the NPRM However, it should be pointed out that that the definition be dropped from the and the note following that section of the proposed note was inadequate and final regulations, because it (1) sets a the NPRM have been deleted. The term did not provide a full explanation of the dangerous precedent for the Federal is explained where it is used in responsibilities of public charter schools government to dictate what the general § 300.347 and in Appendix A regarding under these regulations. curriculum should be in each school, IEP requirements. In light of concerns raised about how and (2) violates the General Education public charter schools could meet their Provisions Act. Individualized Education Program obligations to disabled students under Discussion: The concept of ‘‘general Team (§ 300.16) Part B and obtain access to Part B funds curriculum’’ in these regulations plays a Comment: None. for disabled students enrolled in their crucial role in meeting the requirements Discussion: In light of the general schools, two important provisions were of the Act. The IDEA Amendments of decision not to use notes in these final included in the IDEA Amendments of 1997 place significant emphasis on the regulations, the note following this 1997 at section 613(a)(5) and (e)(1)(B). participation of children with section of the NPRM should be Some public charter schools can be disabilities in the general curriculum as removed. However, it is important to LEAs if, under State law, they meet the

VerDate 03-MAR-99 17:45 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00141 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm01 PsN: 12MRR2 12546 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

Part B definition of LEA. As a result of Changes: The note has been removed. Parent (§ 300.20) section 613(e)(1)(B) of the Act, public The definition of LEA has been Comment: Several commenters charter schools that are LEAs may not amended by adding after ‘‘secondary indicated that (1) based on the be required to apply for Part B funds school’’ the words ‘‘including a public definition of ‘‘parent’’ in the NPRM, jointly with other LEAs, unless charter school that is established as an States would be required to change their explicitly permitted to do so under the LEA under State law.’’ A new § 300.312 laws to include foster parents under the State charter school statute. However, in has been added to further address the State definition of ‘‘parent,’’ and (2) many instances, charter schools are treatment of charter schools. language should be added to the NPRM schools within LEAs. If this is so, so that foster parents can serve as section 613(a)(5) of the Act provides Native Language (§ 300.19) parents, unless prohibited from doing so that the LEA of which the public charter Comment: Some commenters under State law. school is a part must serve those requested that, in item (1) under the These and other commenters also disabled students attending public note, the Department change ‘‘child’’ to requested that charter schools in the same manner as ‘‘student’’; add ‘‘combination of (1) the language in the note be it serves students with disabilities in its languages’’ used by the student; and add included in the text of the regulations; other public schools and must provide ‘‘in the home and learning (2) a provision be added to the effect Part B funds to charter schools in the environments.’’ A few commenters that the public agency must continue to same manner that it provides Part B requested additional specificity in item afford the natural parents all protections funds to other public schools. 2 to clarify that the mode of Still, in other instances, due to the of this part if their rights to make communication used should be that educational decisions have not been provisions in States’ charter school used by the individual. statutes, some public charter schools are extinguished, even if the child does not Discussion: In light of the general live with the natural parents and even not considered LEAs or a school within decision not to use notes in these final an LEA. In such instances, the SEA if other persons appear to be acting as regulations, the note following § 300.18 the child’s parents; would have ultimate responsibility for of the NPRM should be removed. ensuring that Part B requirements are (3) the legal parent have the authority, However, it is critical that public not a grandparent or other person, met. Regardless of whether a public agencies take the necessary steps to charter school receives Part B funds, the unless parental authority is ensure that the needs of disabled extinguished; requirements of Part B are fully children with limited English applicable to disabled students (4) ‘‘legal’’ be added in front of proficiency (LEP) are adequately ‘‘guardian’’; and attending those schools. The legislative addressed. The term ‘‘native language’’ history of the IDEA Amendments of (5) all references to ‘‘parent’’ in these is used in the prior notice, procedural regulations be changed to ‘‘the child’s 1997 makes explicit that Congress safeguards notice, and evaluation ‘‘expects that public charter schools will parent.’’ Some commenters felt that the sections: §§ 300.503(c), 300.504(c), and note created a problem for school be in full compliance with Part B.’’ See 300.532(a)(1)(ii). S. Rep. No. 105–17 at 17; H.R. Rep. No. districts because a situation often arises In light of concerns of commenters 105–95 at 97. where a child is living with a person Therefore, based on the concerns and the need to ensure that the full acting as a parent, while the natural expressed by commenters and for the range of the needs of children with parents are still involved and have not reasons clarified in the above disabilities whose native language is had their rights terminated, and discussion, it is determined that (1) the other than English is appropriately requested clarification for school definition of LEA should be amended to addressed, the definition of ‘‘native districts in these situations. clarify that the term ‘‘LEA’’ includes a language’’ in the NPRM should be Discussion: States should not have to public charter school established as an expanded in these final regulations to amend their laws relating to parents in LEA under State law; (2) the provision clarify that (1) in all direct contact with order to treat ‘‘foster parents’’ as in § 300.241 (Treatment of charter the child (including evaluation of the parents. Therefore, conditional language schools and their students) should be child), communication would be in the in this regard is necessary if State law retained in these final regulations; and language normally used by the child prohibits a foster parent from acting as (3) a new § 300.312, entitled ‘‘Children and not that of the parents, if there is a parent. This change would accomplish with disabilities in public charter a difference between the two; and (2) for the intended effect of the provision (i.e., schools,’’ should be added to these final individuals with deafness or blindness, acknowledging that in some instances regulations. or for individuals with no written foster parents may be recognized as The new section makes clear that language, the mode of communication ‘‘parents’’ under the Act) without children with disabilities and their would be that normally used by the adding any burden to individual States parents retain all rights under these individual (such as sign language, whose State statutory provisions regulations and that compliance with Braille, or oral communication). relating to parents expressly exclude Part B is required regardless of whether These changes to the regulatory foster parents. a public charter school receives Part B definition of ‘‘native language’’ should In light of the general decision not to funds. Thus, charter school personnel, enhance the chances of school use notes in these final regulations, the for example, may not ask parents to personnel being able to communicate note following this section of the NPRM waive their disabled child’s right to effectively with a LEP child in all direct should be removed, but the substance of FAPE in order to enroll their child in contact with the child, including the note on foster parents should be the charter school. This new section evaluation of the child. added to the text of the regulations. also would address the responsibilities Changes: The definition of ‘‘native Under these regulations, the term of (1) public charter schools that are language’’ in the NPRM has been ‘‘parent’’ is defined to include persons LEAs, (2) LEAs if a charter school is a amended to reflect the concepts acting in the place of a parent, such as school in the LEA, and (3) the SEA if a contained in the note following that a grandparent or stepparent with whom charter school is not an LEA or a school definition, and the note has been the child lives, as well as persons who in an LEA. removed. are legally responsible for a child’s

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00142 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12547 welfare, and, at the discretion of the of ‘‘public agency’’ includes only the definition be amended to require that State, a foster parent who meets the SEA, not other State agencies which personnel providing services to limited requirements in paragraph (b) of this arguably could be used to try to English proficient students meet SEA section. Commenters’ concerns related circumvent financial responsibility requirements for bilingual specialists in to ensuring that the rights of natural based on this omission. the language of the child or student. parents are protected in a case in which Discussion: Public charter schools Some commenters requested that the a disabled child is living with a person that are not otherwise included as LEAs regulations be clarified to address acting as a parent, or providing that the or ESAs and are not a school of an LEA qualifications for interpreters serving parent retain authority even if a child is or ESA should be added to the children who are deaf or have hearing living with a grandparent, raise definition of ‘‘public agencies’’ in order impairments. questions that the Department has to ensure that all public entities Discussion: It is appropriate to change traditionally held best to be left to each responsible for providing education to the title of this section of these final State to decide as a matter of family law. children with disabilities are covered. regulations to ‘‘qualified personnel.’’ It is not necessary to add ‘‘legal’’ However, the definition of ‘‘public This change is consistent with the before the word ‘‘guardian’’ since the agency’’ should not be amended to importance of ensuring that all statute regarding the term ‘‘parent’’ at address financial responsibility for providers of special education and section 602(19)(A) merely notes that it assistive technology. If another State related services, including interpreters, includes a legal guardian. A legal agency is responsible for providing meet State standards and Part B guardian would be considered to meet education to children with disabilities, requirements. the regulatory definition of ‘‘parent’’. it is already included in the definition In order for interpreters to provide The regulatory definition of ‘‘parent’’ of ‘‘public agency.’’ Other State appropriate instruction or services to has always included more than just the agencies, not responsible for educating children with disabilities who require term identified in the statute. An children with disabilities, should not be an interpreter in order to receive FAPE, inclusive definition of parent benefits held to the requirements imposed on States must ensure that these public agencies by reducing the public agencies by these regulations individuals meet appropriate State instances in which the agency will have because they are not agencies with qualification standards. to bear the expense of providing and educational responsibilities. It is not necessary to refer to appointing a surrogate parent (see Changes: Public charter schools as § 300.136, as the definition already § 300.515) and benefits children with discussed previously has been added to specifies that the person must meet disabilities by enhancing the possibility the list of examples of a ‘‘public agency’’ State-approved or recognized that a person with ongoing day-to-day in § 300.22. requirements. Section 300.232 (exception to maintenance of effort), involvement in the life of the child and Qualified Personnel (§ 300.23) personal concerns for the child’s uses the term ‘‘qualified’’ in referring to interests and well-being will be able to Comment: Numerous commenters the replacement of higher-salaried act to advance the child’s interests stated that the definition of ‘‘qualified’’ personnel by qualified lower-salaried under the Act. should be renamed ‘‘qualified personnel. Therefore it would be Regarding the use of the reference to personnel,’’ updated to the highest unnecessary and redundant to include a the child’s parent, no change is needed standard, and should be cross- reference to that section. since it is implicit that the rights under referenced to the exception to the The definition of ‘‘qualified Part B are afforded to a child with a maintenance of effort provision’’ in the personnel’’ is sufficiently broad to disability and his or her parents, as regulations. Some commenters encompass the qualifications of defined under these regulations. requested that the definition be changed bilingual specialists, and no further Changes: The note following the to link the term ‘‘qualified’’ to the changes are required in this definition. definition of ‘‘parent’’ in the NPRM has statutory and regulatory provisions on Changes: The name of this section has been removed; and the substance of the personnel standards, i.e., the SEA been changed to ‘‘Qualified personnel,’’ note has been reflected in the above standards that are consistent with any and a corresponding reference to discussion. The definition of ‘‘Parent’’ State approved or recognized ‘‘qualified personnel’’ has been in these final regulations has been certification, licensing, registration, or included in the text of the definition. amended to permit States in certain other comparable requirements based on Related Services (§ 300.24) circumstances to use foster parents as the highest requirements in the State parents under the Act without applicable to the profession or Comment: A number of comments amending relevant State statutes. discipline in which a person is were received relating to the general providing special education or related definition of ‘‘related services’’ under Public Agency (§ 300.22) services. These commenters also stated § 300.22(a) of the NPRM, and to Note 1 Comment: Some commenters that the more detailed definition is following that section of the NPRM. requested that the definition of ‘‘public important to ensure that, under the These comments included revising agency’’ be amended to include ‘‘charter exception to maintenance of effort in § 300.22(a) consistent with the schools’’ that are created under State § 300.232, qualified lower-salaried staff definition in the statute, and adding law and are the recipients of public who replace higher-salaried staff have services to the definition of related funds, because as proposed, a public met the highest requirements in the services; for example, assistive agency would not include any charter State consistent with § 300.136. technology devices and services, school school that is not an LEA or most of the Other commenters, with similar nursing services, travel training, and nation’s existing charter schools. Other recommendations, requested that the educational interpreter services. Some commenters stated that, in order to name of the section be changed to of these commenters stated that support the provision on assistive ‘‘Qualified professionals and qualified interpreter services are of utmost technology under § 300.308, the personnel,’’ and that a note be added to importance for deaf students to succeed definition of ‘‘public agency’’ must be explain the basis and importance of in the educational setting and are amended to include other State qualified professionals. Several essential for hearing impaired students agencies, since the proposed definition commenters requested that the to function in the mainstream. A few

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00143 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12548 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations commenters requested that ‘‘qualified removed, but the substance of the note definition of related services, those sign language interpreting’’ be added, is reflected in the following discussion. services have been provided under these including the definition of the term All related services may not be required regulations since the initial regulations from the ADA. for each individual child. As under for Part B were issued in 1977. (See also One commenter stated that a note prior law, the list of related services is discussion under Qualified personnel). should be added that related services not exhaustive and may include other Regarding commenters’ suggestions not only can be used to ameliorate the developmental, corrective, or supportive that related services are required not disability but also to work toward services (such as artistic and cultural only to ameliorate the disability but to independence and employability. programs, art, music, and dance provide preparation for employment, a Several commenters recommended therapy) if they are required to assist a change is not needed. The Act’s that changes be made in Note 1. Some child with a disability to benefit from transition services requirements are of the commenters expressed concern special education in order for the child sufficiently broad to facilitate effective about adding additional services (travel to receive FAPE. Therefore, if it is movement from school to post-school training, nutrition services, and determined through the Act’s evaluation activities, and if deemed appropriate by independent living services) to an and IEP requirements that a child with the IEP team, these transition services already lengthy list of services. Some a disability requires a particular could be identified as related services commenters requested that the note be supportive service in order to receive for an individual student. deleted because it is too expansive, or FAPE, regardless of whether that service Changes: Note 1 following the that the parenthetical phrase in the first is included in these regulations, that definition of ‘‘related services’’ in the paragraph be dropped because the service can be considered a related NPRM has been removed. listing is confusing without some service under these regulations, and Comment: A number of commenters further explanation or clarification. One must be provided at no cost to the requested changes in the definitions of comment stated that the menu of related parents. specific terms defined in the definition services suggests that a disabled child The IEP process in §§ 300.340– of ‘‘related services,’’ as follows: might need all of the listed services. 300.350, and the evaluation Some commenters recommended that Other commenters stated that inclusion requirements in §§ 300.530–300.536, are the definition of ‘‘audiology’’ be of terms such as dance therapy and designed to ensure that each eligible modified to include functions that are nutrition is confusing, and that further child under Part B receives only those not contained in the current definition. clarification is needed as to how they related services that are necessary to Some commenters requested that the are ‘‘related’’ to the student’s access to assist the child to benefit from special definition of ‘‘occupational therapy’’ be special education and to making education, and there is nothing in these amended to add language to ensure that progress in the general curriculum. regulations that would require every occupational therapy services are Some commenters requested that disabled child to receive all related provided by qualified occupational ‘‘artistic and cultural programs’’ be services identified in the regulations, as therapists or occupational therapy deleted from the parenthetical statement suggested by some commenters. assistants to ensure that those services in Note 1, stating (for example) that (1) Commenters’ suggestions that the can assist children to participate in the these programs are areas of the second paragraph of Note 1 to this general curriculum, and achieve IEP/ curriculum and not related services (i.e., section of the NPRM is no longer IFSP goals. they are not necessary for a child to needed should be addressed. The A number of commenters benefit from special education), and (2) statement in Note 1—that recommended that the final regulations ensuring that disabled children have an ‘‘psychological testing might be done by clarify that orientation and mobility equal opportunity to participate in the qualified psychological examiners, services may be required by children type of cultural activities available to all psychometrists, or psychologists with other disabilities, and that the children is different than considering depending on State standards’’—should services may be provided by personnel those programs to be a related service not be retained, since States must with different qualifications other than ‘‘therapy’’ that implies specific establish their own qualification those serving persons who are blind or certification requirements in many standards for persons providing special visually impaired. Other commenters sectors. education and related services. requested that (1) the term ‘‘qualified A number of commenters requested Therefore, State standards would govern personnel’’ should be deleted because that the statement that psychological which individuals should administer using this term in this definition creates testing might be done by qualified these tests, consistent with Part B personnel problems for rural areas and psychological examiners, evaluation requirements. for many urban settings, that orientation psychometrists, or psychologists As stated in the discussion under and mobility personnel are not used for depending on State standards be deleted §§ 300.5 and 300.6 of this analysis, all purposes listed, and not every State from the second paragraph of Note 1. assistive technology devices and has a classification called orientation One comment stated that there is no services may already be considered a and mobility specialist; and (2) the national standard for this role, and thus related service. Therefore, it is not option of providing orientation and it conflicts with evaluation necessary to add assistive technology mobility services in a student’s home requirements and personnel standards. devices and services to the list of related would apply to students who may not Other commenters recommended that services defined in this section. Second, be home-schooled and would violate the the third paragraph in Note 1 be because ‘‘school health services’’ is least restrictive environment amended to provide that the activities currently defined as services provided requirements of the Act. do not act to reduce the amount of the by a ‘‘qualified school nurse’’ or other Several comments were also received service specified by any child’s IEP as qualified person, there is no reason to on Note 2 (relating to orientation and necessary for FAPE. address further the issue of ‘‘school mobility services and travel training). Discussion: In light of the general nurses’’ or school nursing services. Some commenters requested that travel decision not to use notes in these final Third, although interpreter services for training be added as a separate related regulations, Note 1 following this children with hearing impairments are service with its own definition. The section of the NPRM should be not specifically mentioned in the definition would be based on, or

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00144 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12549 incorporate, the language from Note 2 could be provided outside the school to and safe movement within their relating to travel training. Other day need not be provided by the school, environment in school, home, at work commenters suggested that it would be regardless of how easily a school could and in the community. Therefore, the more accurate to refer to this type of provide them); and (3) a nurse or other definition of ‘‘special education’’ should training as mobility training. qualified person who is not a physician be amended to include a provision A number of commenters requested can provide the service. The relating to the teaching of travel that Note 2 be deleted because it was too commenters believe that by stating the training, as appropriate, to children expansive. Other commenters stated Tatro holding in the regulation, with significant cognitive disabilities, that (1) all references to travel training longstanding Department policy would and any other disabled children who be dropped, since the term is not be formalized and litigation would require such services. The regulations defined or even mentioned in the decrease. Other commenters requested should not substitute the term ‘‘mobility statute; (2) Note 2 expands services that the regulations clarify that training,’’ since the legislative history beyond the statute and will make specialized school health services (S. Rep. No. 105–17, p. 6; H.R. Rep. No. orientation and mobility services should not be improperly or 105–95, p. 86) recognizes that extremely expensive and adversarial by dangerously performed by individuals ‘‘orientation and mobility’’ services are requiring new personnel that are not who lack the requisite training and generally recognized as for blind available in rural areas and many urban supervision. children while children with other areas; (3) Note 2 should not require a Discussion: The definition of disabilities may need travel training. In deliverable standard against which a ‘‘audiology’’ should not be amended light of this regulatory change, Note 2 school system might be held liable; and since the changes suggested by following this section of the NPRM (4) travel training may be appropriate commenters are more than technical should be removed. for other children with disabilities, but changes, and thus would require further The definition of ‘‘parent counseling orientation and mobility specialists are study and regulatory review. However, and training’’ should be changed to not the personnel to provide these in response to suggestions of recognize the more active role services. commenters, it is appropriate to modify acknowledged for parents under the With respect to parent counseling and the definition of ‘‘occupational therapy’’ IDEA Amendments of 1997 as training, commenters recommended that to make it clear that this term participants in the education of their (1) the title be changed to ‘‘Parental encompasses services provided by a children. Parents of children with training’’ because the definition qualified occupational therapist. This disabilities are very important describes training, and schools cannot makes the definition generally participants in the education process for counsel parents as a related service; and consistent with the other related service their children. Helping them gain the (2) a training element be added at the definitions. It is not necessary to skills that will enable them to help their end of the definition, to provide for incorporate the term ‘‘certified children meet the goals and objectives assisting parents to acquire the occupational therapy assistant,’’ because of their IEP or IFSP will be a positive necessary skills to help support the the option of using paraprofessionals change for parents, will assist in implementation of their child’s IEP or and assistants to assist in the provision furthering the education of their IFSP. Other commenters proposed a of services under these regulations is children, and will aid the schools as it specific definition of parent counseling addressed in § 300.136(f). and training that would emphasize As stated by the commenters, some will create opportunities to build helping parents to acquire the necessary children with disabilities other than reinforcing relationships between each skills to support the implementation of visual impairments need travel training child’s educational program and out-of- their child’s IEP or IFSP. Another if they are to safely and effectively move school learning. commenter recommended adding a note within and outside their school For these reasons, the definition of that training may include training in environment, but these students (e.g., ‘‘parent counseling and training’’ should sign language or other forms of children with significant cognitive be changed to include helping parents communication. disabilities) do not need orientation and to acquire the necessary skills that will Several commenters requested that mobility services as that term is defined allow them to support the the definition of ‘‘school health in these regulations. ‘‘Orientation and implementation of their child’s IEP or services’’ at § 300.22(b)(12) of the NPRM mobility services’’ is a term of art that IFSP. This change is in no way intended be expanded to specifically include is expressly related to children with to diminish the services that were health care services that are not curative visual impairments, and includes available to parents under the prior or treatment oriented, such as services that must be provided by definition in these regulations. suctioning, gastronomy, tube feeding, qualified personnel who are trained to It is not necessary to modify the blood sugar testing, catheterization, and work with those children. No further definition of ‘‘school health services’’ in administration of medication. changes to the definition of ‘‘orientation the NPRM to add more specificity A few commenters requested that the and mobility services’’ are needed, since because the current definition requires definition of ‘‘school health services’’ be the definition as written does not provision of health services, including amended to add the three-part test conflict with the Act’s least restrictive those addressed by the comments, if adopted by the United States Supreme environment requirements. they can be provided by a qualified Court in Irving Independent School For some children with disabilities, nurse or other qualified individual who District v. Tatro, 484 U.S. 883 (1984). In such as children with significant is not a physician, and the IEP team Tatro, the Court stated that services cognitive disabilities, ‘‘travel training’’ determines that any or all of the services affecting both the educational and is often an integral part of their special are necessary for a child with a health needs of a child must be educational program in order for them disability to receive FAPE. The provided under IDEA if: (1) The child is to receive FAPE and be prepared for commenters’ description of the holding disabled so as to require special post-school activities such as in the Tatro decision is consistent with education; (2) the service is necessary to employment and independent living. the Department’s longstanding assist a disabled child to benefit from Travel training is important to enable interpretation regarding school health special education (thus, services which students to attain systematic orientation services.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00145 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12550 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

In any case, the list of examples of counselors and teachers) who may know psychologists to be involved in the related services in § 300.22 is not the students best. A number of majority of activities described by exhaustive, and other types of services commenters favored retaining the commenters, and, therefore, the not specifically mentioned may be provision in the NPRM. One commenter definition should not be revised to add required related services based on the recommended that the regulations be other, more specific functions. needs of an individual child. The only clarified to include an explicit ban on Nor is there a need to make type of service specifically excluded the use of aversive behavior substantive changes to the definition of from ‘‘related services’’ are medical management strategies under this part. ‘‘social work services in schools.’’ services that are not for diagnostic and A few commenters requested that the Although psychologists (and school evaluation purposes. ‘‘Medical definition of ‘‘recreation’’ in proposed social workers) may be involved in services,’’ has always been defined by § 300.22(b)(10) be eliminated. One assisting in the development of positive the regulations as services provided by commenter indicated that the definition behavioral interventions, there are many a physician. The regulations already will overreach the intent of IDEA. other appropriate professionals in a make clear that providers of school Others stated that (1) the services listed school district who might also play a health services, as is the case for would add costs to IDEA as well as role in that activity. The standards for providers of special education and administrative burden because those personnel who assist in the related services in general, must be services would be difficult to arrange development of positive behavioral qualified consistent with §§ 300.23 and and schedule, and (2) participation in interventions will vary depending on 300.136 of these regulations. community-based recreation is a family the requirements of the State. Including Changes: Consistent with the above responsibility. A few commenters the development of positive behavioral discussion, the definitions of requested that the definition of interventions in the descriptions of ‘‘occupational therapy’’ at § 300.24(b)(5) rehabilitation counseling be amended to potential activities under social work of these final regulations and ‘‘parent add that counseling should be provided services in schools and psychological counseling and training’’ at on the basis of individual need and not services provide examples of the types § 300.24(b)(7) of these final regulations on a specific disability category. The of personnel who assist in this activity. have been revised; Note 2 has been commenters stated that because These examples of personnel who may deleted; and a reference to travel vocational rehabilitation was provided assist in this activity are not intended to training has been added under § 300.26 under the transition grants for students imply either that school psychologists (Special education). with significant disabilities, some and social workers are automatically Comment: Numerous comments were school systems consider vocational qualified to perform these duties or to received relating to ‘‘psychological rehabilitation for these students only. prohibit other qualified personnel from services.’’ Many of these comments Some commenters also recommended serving in this role, consistent with addressed the role of school that the definition of ‘‘social work State requirements. psychologists under this part (e.g., services in schools’’ be broadened to Regarding the comment requesting stating that a psychologist should be a include individual and group clarification to impose a ban on aversive member of the evaluation team, be counseling and other mental health behavior under this part, the new involved in IEP meetings, and conduct services. A few commenters requested requirements in section 614(d)(3)(B)(i) behavioral assessments). A few that proposed § 300.22(b)(13)(iii) be of the Act are sufficient to address this commenters recommended that ‘‘other revised to require that school social concern by strengthening the ability of mental health services’’ be added at the work services include working in the IEP team to address the need for end of proposed § 300.22(b)(9)(v), partnership with parents on those positive behavioral interventions in stating that this would ensure that problems in a child’s living situation appropriate situations. Under these new schools use, and families have access to, (home, school and community) that requirements, the IEP team must a variety of strategies and interventions affect the child’s adjustment in school. ‘‘consider, if appropriate, including in that go beyond psychological Other commenters requested that a new the IEP of a student whose behavior counseling. The commenters added that paragraph (vi) be added to the list of impedes his or her learning or that of children and families have been denied functions relating to working with others, strategies, including positive these necessary mental health services classrooms of children to help students behavioral interventions, strategies, and because these services are not with disabilities develop or improve supports to address that behavior.’’ specifically stated. social skills, self esteem, and self These new requirements are sufficiently Some commenters expressed concern confidence. (See also the comment and broad to address the commenter’s about the provision in the NPRM that discussion under ‘‘psychological concerns. In meeting their obligations designated school psychologists and services’’ related to the role of under section 614(d)(3)(B)(i) of the Act, school social workers as the personnel psychologists and social workers in the public agencies must ensure that responsible for assisting in the development of positive behavioral qualified personnel are used, and may development of positive behavioral interventions and strategies for IEP goal select from a variety of staff for this interventions and strategies for IEP goal development.) purpose. development. These commenters stated One commenter recommended that The definition of ‘‘social work that, although psychologists and school the function ‘‘Provision of speech and services in schools’’ should not be social workers may participate in language services for the habilitation or expanded to include group counseling actions relating to student behavior, this prevention of communication and other mental health services, since function is too critical to be listed under impairments’’ be deleted from proposed under the definition as written, social a specific category of related services. A § 300.22(b)(14)(iv), because it includes workers could provide these services if few of these commenters stated that vague language, making the program doing so would be consistent with State specifically linking development of more litigious and more difficult to standards and the students required positive behavioral interventions and administer. such services in order to receive FAPE. strategies could be interpreted narrowly Discussion: The definition of However, the technical change in and result in excluding a broad array of ‘‘psychological services’’ in the NPRM is § 300.22(b)(13)(iii) should be made to other professionals (such as school sufficiently broad to enable clarify that school social workers work

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00146 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12551 in partnership with parents and others they must be appropriately trained and determine the appropriate mode of on those problems in a child’s living supervised in accordance with State transportation for a child based on the situation (home, school, and standards. Since concerns raised by child’s needs. That team makes all other community) that affect the child’s commenters about the use of decisions relating to the provision of adjustment in school. The current paraprofessionals and assistants are special education and related services; definition is sufficiently broad to enable addressed in the analysis of comments and transportation is a specific statutory school social workers to help disabled under § 300.136(f) of this attachment, it service listed in the definition of related students work on social skills. is not necessary to make further changes services. Recreation should not be deleted from to this section. It is assumed that most children with the list of related services. This is a Changes: Note 3 to this section of the disabilities will receive the same statutory provision that has been NPRM has been removed. transportation provided to nondisabled defined in the regulations since 1977. Comment: Several comments were children, unless the IEP team The commenters’ request relating to received on Note 4 relating to the determines otherwise. However, for ‘‘rehabilitation counseling’’ (i.e., to add definition of ‘‘transportation.’’ Some some children with disabilities, clarification that it should be provided commenters recommended that the note integrated transportation may not be based on individual need) is generally be revised to include accommodations achieved unless needed the case with all related services. to achieve integrated transportation, accommodations are provided to Adding a specific limitation to including providing appropriate address each child’s unique needs. If the rehabilitation counseling could training to transportation providers, IEP team determines that a disabled inappropriately suggest that other such as bus drivers, and including the child requires transportation as a related services are to be provided without use of aids. service in order to receive FAPE, or regard to individual need. A few commenters stated that the requires accommodations or The definition of ‘‘speech-language second sentence in Note 4 implies that modifications to participate in pathology services’’ should not be there is no limit to the adaptations that integrated transportation with revised. This is a longstanding a school must make to bus equipment to nondisabled children, the child must definition that is useful to qualified afford a disabled child an opportunity to receive the necessary transportation or speech-language pathologists who ride the regular bus. The commenters accommodations at no cost to the provide services to children with added that (1) the IEP team must retain parents. This is so, even if no disabilities under these regulations. the authority to determine the transportation is provided to Changes: A technical change has been appropriate mode of transportation nondisabled children. made to the definition of ‘‘social work based on child’s needs and financial As with other provisions in these services in schools.’’ and logistical burdens of various regulations relating to qualified Comment: A few commenters options, and (2) as with other related personnel, all personnel who provide supported Note 3 (relating to the use of services, transportation must only be required services under this part, paraprofessionals). Some commenters provided to assist a child with including bus drivers, must be recommended that the note be amended disabilities to benefit from special appropriately trained. by requiring proper training and education. Changes: Note 4 to this section of the supervision in the areas in which A number of commenters stated that NPRM has been removed, the substance paraprofessionals are providing transportation accommodations are an of Note 4 is reflected in the above services. LRE issue and, as such, should be discussion, and it is further discussed in Commenters also stated that the determined by each child’s IEP team. Appendix A of these final regulations. regulations must (1) ensure parents These commenters added that know which services are provided by accommodations also should be Special Education (§ 300.26) paraprofessionals; (2) clarify the service addressed through section 504 and the Comment: Some commenters limitations of paraprofessionals; (3) ADA, and recommended that the note requested that, in implementing the IEP prohibit any independent development, be deleted. Another commenter for disabled students in school-funded substantive modification or unapproved recommended the need to clarify public placements outside of the school provision of services independent of the agency responsibility to provide district, the cost of trips, phone calls, supervising related services necessary transportation to disabled and other expenses incurred by parents professional; (4) ensure that children even if that transportation is should be covered. Some commenters paraprofessionals are not used for IEP not provided to nondisabled children. stated that they are not reimbursed for decision-making activities or Other commenters also recommended official long-distance phone calls made development or revisions of the child’s that Note 4 be deleted. One commenter regarding their child’s needs or for trips interventions or IEP; and (5) ensure stated that the note goes beyond the to attend special IEP meetings. these precautions are part of the policy statute and adds costs in an outrageous According to a commenter, one district requirements of § 300.136(f). extension of Federal authority. Another will pay for the cost of driving the Other commenters requested that commenter stated that the note could student to school, but not for the cost of paraprofessionals who assist in lead school districts to conclude that the return trip of the parents. providing speech-language pathology they had to buy specialized equipment Several commenters requested that services must be supervised by a person (e.g., lifts) for even more of their buses the definition of ‘‘physical education’’ who meets the highest requirements in in order to provide integrated in proposed § 300.24(b)(2)(ii) be the State for that discipline. transportation, a concept found amended to change ‘‘adaptive’’ to Discussion: In light of the general nowhere in the Act. ‘‘adapted,’’ because the term was used decision not to use notes in these final Discussion: In light of the general in the original regulations, and no regulations, Note 3 following this decision not to use notes in these final rationale has been provided for section should be removed. When regulations, Note 4 to this section of the changing it. paraprofessionals are used to assist in NPRM should be deleted. In response to Some commenters expressed support the provision of special education and concerns of commenters, each disabled for the definition of ‘‘specially designed related services under these regulations, child’s IEP team must be able to instruction’’ as written, while other

VerDate 03-MAR-99 17:45 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00147 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm01 PsN: 12MRR2 12552 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations commenters expressed support with child would be expected to pay for such instruction’’ that would require modification. Other commenters took expenses. instructional methodology to be exception to the definition, Paragraph (b)(2) concerning ‘‘physical addressed in the IEPs of students who characterizing it as overly prescriptive. education’’ should be amended to do not need a particular instructional Other commenters recommended substitute the word ‘‘adapted’’ for the methodology in order to receive dropping the reference to methodology, word ‘‘adaptive,’’ since this is the term educational benefit. In all cases, citing case law and the legislative that was in the original regulations. whether methodology would be history in support of their view that With regard to the definition of addressed in an IEP would be an IEP methodology should not be included in ‘‘specially designed instruction,’’ some team decision. this definition. changes should be made. The committee Other changes to the definition of A few commenters stated that the reports to Pub. L. 105–17 make clear ‘‘specially designed instruction’’ are not definition of ‘‘vocational education’’ in that specific day-to-day adjustments in needed. The distinction between proposed § 300.24(a)(3) was not instructional methods and approaches accommodations that change the general complete, and requested that it be are not normally the sort of change that curriculum and those that do not, as one amended to comply with the definition would require action by an IEP team. commenter requests, would be difficult in the Carl D. Perkins Vocational and Requiring an IEP to include such a level to make because of the individualized Applied Technology Education Act. of detail would be overly-prescriptive, nature of these determinations. Other commenters objected to including impose considerable unnecessary Regardless of the reasons for the ‘‘vocational education’’ within the administrative burden, and quite accommodation or modification, it must definition of ‘‘special education,’’ possibly be seen as encouraging be provided if necessary to address the asserting that there is no statutory disputes and litigation about rather special educational needs of an authority to do so. Other commenters small and unimportant changes in individual student. recommended that some minor instruction. There is, however, a The words ‘‘maximum extent modifications be made to the current reasonable distinction to be drawn appropriate’’ should not follow the definition. between a mode of instruction, such as reference to participation in the general A few commenters requested that the cued speech, which would be the basis curriculum, because such a qualification regulations clarify the difference for the goals, objectives, and other would conflict with the Act’s IEP between accommodations that do not elements of an individual student’s IEP requirements and the unequivocal change the content of the curriculum and should be reflected in that student’s emphasis on involvement and progress and modifications that do change it. IEP, and a day-to-day teaching of students with disabilities in the Other commenters requested that access approach, i.e., a lesson plan, which general curriculum, regardless of the to the general curriculum be to the would not be intended to be included in nature or significance of the disability. maximum extent appropriate for the a student’s IEP. The term ‘‘vocational education’’ in child. A few commenters recommended Case law recognizes that instructional paragraph (b)(5) should not be amended adding clarifying language to methodology can be an important to conform to the definition in the Carl accommodate the distinction between consideration in the context of what D. Perkins Vocational and Applied providing disabled students with a constitutes an appropriate education for Technology Education Act. The meaningful opportunity to meet the a child with a disability. At the same definition of ‘‘vocational education’’ in standards and actually meeting the time, these courts have indicated that the proposed regulations should be standards, and stated that the Act they will not substitute a parentally- retained in these final regulations since recognizes this distinction by preferred methodology for sound it reflects the definition of that term referencing involvement and progress in educational programs developed by contained in the original regulations for the general curriculum. school personnel in accordance with the this program published in 1977. While Some commenters supported the note procedural requirements of the IDEA to the regulatory definition includes all of to proposed § 300.24 (that a related meet the educational needs of an the activities in the Perkins Act services provider may be a provider of individual child with a disability. definition, the substitution of the specially designed instruction if State In light of the legislative history and definition from the Perkins Act would law permits). Other commenters stated case law, it is clear that in developing be too limiting since that definition that the note should be deleted to an individualized education there are would not encompass those activities eliminate the possibility that circumstances in which the particular included in the current definition. The individuals may interpret it to mean teaching methodology that will be used inclusion of ‘‘vocational education’’ in that the term ‘‘child with a disability,’’ is an integral part of what is the definition of ‘‘special education’’ is as defined under proposed § 300.7, ‘‘individualized’’ about a student’s needed to ensure that students with might include children who need only education and, in those circumstances disabilities receive appropriate, a related service. will need to be discussed at the IEP individually-designed vocational Discussion: It is not necessary to meeting and incorporated into the educational services to facilitate revise the definition of ‘‘at no cost’’ student’s IEP. For example, for a child transition from school to post-school under paragraph (b)(1) of this section, with a learning disability who has not activities. since that definition already addresses learned to read using traditional In light of the general decision not to the comment relating to the cost of trips, instructional methods, an appropriate use notes in these final regulations, the phone calls, and other expenses education may require some other note following this section of the NPRM incurred by parents of disabled children instructional strategy. should be removed. The removal of this when those children are placed outside Other students’ IEPs may not need to note, however, should not be construed the school district by a public agency. address the instructional method to be as altering eligibility requirements If the school district places the child, used because specificity about under these regulations—namely (1) a and the IEP team determines that the methodology is not necessary to enable child is an eligible child with a costs of phone calls and trips are those students to receive an appropriate disability under Part B if the child has relevant to the student’s receipt of education. There is nothing in the a covered impairment and requires FAPE, the public agency placing the definition of ‘‘specially designed special education by reason of the

VerDate 03-MAR-99 17:45 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00148 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm01 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12553 impairment; and (2) a child with a service as a supplementary aid or Subpart B disability can receive a related service service. Condition of Assistance (§ 300.110) only if that service is required to assist Changes: None. the child to benefit from special Comment: A few commenters stated education. However, consistent with Transition Services (§ 300.29) that the proposed regulations at § 300.26(a)(2), any related service that is §§ 300.110–300.113, as written, would considered special education rather Comment: Many commenters not ensure that States meet the than a related service under State supported the transition services requirements of section 612(a) and (c) of standards may be considered as special definition in these regulations, but the Act. education. A provision has been added recommended that the definition be Discussion: It is appropriate to amend under the definition of ‘‘child with a amended to include, in paragraph § 300.110 to more explicitly state what disability’’ to reflect this concept. (1)(c)(vi), self-advocacy, career is required for compliance with these Changes: Paragraph (a)(2) has been planning, and career guidance. This provisions. amended to add travel training to the comment also emphasized the need for Changes: Section 300.110 has been elements contained in the definition of coordination between this provision and amended, as noted in the above ‘‘special education,’’ and a separate the Perkins Act to ensure that students discussion. definition of travel training has been with disabilities in middle schools will Free Appropriate Public Education added to paragraph (b)(4) as discussed be able to access vocational education (§ 300.121) in this attachment under § 300.24. funds. Paragraph (b)(2) concerning physical (For a brief overview of the changes made One commenter recommended that education has been revised to substitute regarding the discipline sections of these the definition of ‘‘transition services’’ regulations, please refer to the preamble.) the word ‘‘adapted’’ for the word either be narrowed to post-school ‘‘adaptive.’’ Paragraph (b)(3) has been Comment: A few commenters asked revised to make clear that adaptations to transition or that other transitions, such that the regulations be amended to instruction, in the form of specially as transition from Part C to Part B, be adopt a ‘‘no cessation of services’’ designed instruction, are made as defined elsewhere in these regulations. policy, under which students with appropriate to the needs of the child. Discussion: The Act’s ‘‘transition disabilities would be entitled to receive The note following this section of the services’’ definition should be retained FAPE even during periods of less than NPRM has been removed, and the as written. In light of the general ten days of suspension in a given school substance of the note is reflected in the decision not to use notes in these final year. Some of these commenters stated above discussion. regulations, the note following this that there is no basis to assume that section of the NPRM should be Congress did not mean what is Supplementary Aids and Services explicitly stated in section 612(a)(1)(A) (§ 300.28) removed. It is important to clarify that transition services for students with of the Act—that all children are entitled Comment: A few commenters disabilities may be special education if to FAPE, including children who have supported the definition of they are provided as specially designed been suspended or expelled from school. ‘‘supplementary aids and services,’’ as instruction, or related services, if they A few commenters expressed support written. Some commenters requested are required to assist a student with a that the regulations define the term for the proposed language which defines disability to benefit from special ‘‘educationally related setting,’’ and that the term ‘‘children with disabilities who education, and that the list of activities examples of supplementary aids and have been suspended or expelled from in the definition is not intended to be services be included. Another school’’ as meaning children with commenter recommended that the exhaustive. disabilities who have been removed definition be amended to state that Additional examples of transition from their current educational related services could be considered services are not needed because the placement for more than 10 school days supplementary aids and services. Other current definition is sufficiently broad in a given school year, but asked that commenters recommended that assistive to encompass these activities. Nor is it the regulations clarify that the 10 school technology be considered in the same necessary to amend the definition to days are cumulative, not consecutive. context as supplementary aids and reference the Perkins Act, since, under Several commenters recommended services. current law, students with disabilities, deleting the phrase ‘‘in a given school Discussion: It is not necessary to including those in middle schools, can year,’’ stating that the statute allows define the terms used in this definition. participate in these Federally-funded school personnel to suspend a disabled As stated in the analysis of comments programs, and must be provided child for not more than ten consecutive relating to §§ 300.5 and 300.6 (assistive necessary accommodations to ensure school days without the provision of technology devices and services), their meaningful participation. educational services, and that there is assistive technology devices and no statutory basis for defining 10 school services are already recognized as Further, the definition of ‘‘transition days to be within a given year. A supplementary aids and services. Under services’’ should not be narrowed or number of commenters supported the IDEA, aids, supports and services would expanded to include other transitions, proposed ‘‘11th day’’ rule (i.e., that the be considered during the IEP meeting because to do so could be inconsistent right to FAPE for disabled children who and if determined appropriate by the with congressional intent that public have been suspended or expelled begins IEP team would be integrated under the agencies provide students with on the eleventh school day in a school appropriate components of the IEP. disabilities the types of needed services year that they are removed from their Further, with respect to the language to facilitate transition from school to current educational placement). Other about ‘‘related services,’’ a change is not post-school activities. commenters recommended deleting needed. If a disabled child requires a Changes: The note following this proposed § 300.121(c)(2). Some of these related service in the regular classroom, section of the NPRM has been removed, commenters stated that they agreed with that related service must be provided, and the substance of the note has been the Supreme Court decision in Honig and there is no reason to identify that added as a new paragraph (b). versus Doe and with the Department’s

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00149 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12554 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations long-standing interpretation of the Act— reasonable for appropriate school way as when the child is in an interim that a pattern of suspensions would personnel (if the child is to be removed alternative educational setting. constitute a change in placement, but for 10 school days or less, or the child’s As part of its general supervision objected to the regulations defining IEP team, if the child is to be suspended responsibility under § 300.600, each when the ‘‘11th day’’ occurs. or expelled for behavior that is not a SEA must ensure compliance with all One commenter asked whether the manifestation of the child’s disability) to Part B requirements, including the provisions of proposed § 300.121(c) make informed educational decisions requirements of § 300.121(d) regarding would apply if a child’s disability is not about whether and the extent to which FAPE for children who are removed related to the behavior in question. services are needed to enable the child from their current educational Some commenters were concerned that to make appropriate educational placement for more than ten school days the standard from § 300.522 would be progress in the general curriculum and in a given school year. unwieldy for short-term suspensions or toward the goals of the child’s IEP. Changes: The regulation has been should be modified to permit different The change of placement rules revised to provide that when a child services for children suspended or referred to in the Supreme Court’s with a disability who has been removed expelled for behavior determined not to decision in Honig v. Doe, which is based from his or her current educational be a manifestation of their disability. on the Department’s long-standing placement for more than 10 school days Another commenter recommended interpretation of what is now section in a school year is subjected to a strengthening the language of § 300.121 615(j) of the Act, are addressed in the subsequent removal for not more than to ensure that the SEA is responsible for discussion of comments received under 10 school days at a time and when a ensuring the provision of FAPE for § 300.520 in this attachment, and child with a disability is suspended or children who are suspended or changes are made in these final expelled for behavior that is not a expelled. regulations as a result of those manifestation of the child’s disability, Discussion: Section 612(a)(1)(A) of the comments. However, determining the public agency must provide services Act now makes explicit that FAPE must whether a change of placement has to the extent necessary to enable the be available to children with disabilities occurred does not answer the question child to appropriately progress in the who are suspended or expelled, in light of at what point exclusion from general curriculum and appropriately of the adverse impact a cessation of educational services constitutes a denial advance toward achieving the goals in educational services can have on a child of FAPE under section 612(a)(1)(A) of the child’s IEP. with disabilities ability to achieve in the Act. In the case of a child who is removed school and to become a self-supporting With regard to the standard for pursuant to § 300.520(a)(1) for 10 school adult who is contributing to our society. services that must be provided to days or less at a time, this determination The Act, however, should not be read to children with disabilities who have is made by school personnel, in always require the provision of services been suspended or expelled from consultation with the child’s special when a child is removed from school for school, the statute at section 615(k)(3) education teacher. In the case of a child just a few days. School officials need specifically addresses only the services whose removal constitutes a change of some reasonable degree of flexibility to be provided to children who have placement for behavior that is not a when dealing with children with been placed in interim alternative manifestation of the child’s disability disabilities who violate school conduct educational settings under sections pursuant to § 300.524, this rules, and interrupting a child’s 615(k)(1)(A)(ii) and 615(k)(2) determination is made by the child’s IEP participation in education for up to 10 (§§ 300.520(a)(2) and 300.521), which team. school days over the course of a school contemplate situations in which The regulation has also been revised year, when necessary and appropriate to children are removed for up to 45 days, to clarify that if a child is removed by the circumstances, does not impose an without regard to whether the behavior school personnel for a weapon or drug unreasonable limitation on a child with is or is not a manifestation of the child’s offense under § 300.520(a)(2) or by a disabilities right to FAPE. disabilities. hearing officer based on a determination On the other hand, at some point In light of the comments received, the of substantial likelihood of injury under repeated exclusions of a child with regulation would be revised to recognize § 300.521, the public agency provides disabilities from the educational process that the extent to which services would services as specified in § 300.522. will have a deleterious effect on the need to be provided and the amount of Comment: Some commenters child’s ability to succeed in school and service that would be necessary to expressed support for Note 1 (which to become a contributing member of enable a child with a disability to meet clarifies the responsibility of public society. The law ensures that even the same general standard of agencies to make FAPE available to children with disabilities who are appropriately progressing in the general children with disabilities beginning no engaged in what objectively can be curriculum and advancing toward later than their third birthday) and identified as dangerous acts, such as achieving the goals on the child’s IEP recommended that the substance of the carrying a weapon to school, must may be different if the child is going to note be incorporated into the text of the receive appropriate services. (See be out of his or her regular placement regulations. A few commenters sections 615(k)(1)(A)(ii) and 615(k)(2)). for a short period of time. For example, suggested revising Note 1 to clarify that Therefore, it is reasonable that a one or two day removal of a child who children with disabilities whose third children with disabilities who have is performing at grade level may not birthday occurs during the summer are been repeatedly suspended for more need the same kind and amount of not entitled to receive special education minor violations of school codes not service to meet this standard as a child and related services until school starts suffer greater consequences from who is out of his or her regular for the fall term. exclusions from school than children placement for 45 days under Discussion: The responsibility of who have committed the most § 300.520(a)(2) or § 300.521. Similarly, if public agencies to make FAPE available significant offenses. For these reasons, the child is suspended or expelled for to children with disabilities beginning once a child with a disability has been behavior that is not a manifestation of no later than their third birthday means removed from school for more than 10 his or her disability, it may not make that an IEP (or an IFSP consistent with school days in a school year, it is sense to provide services in the same § 300.342) has been developed and is

VerDate 03-MAR-99 17:45 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00150 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm01 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12555 being implemented for the child by that general curriculum, thus making clear identified as a child with a disability date, with the IEP specifying the special that a child is not ineligible to receive and did not have an IEP under Part B education and related services that are special education and related services of the Act, the State may choose to serve needed in order to ensure that the child just because the child is, with the some individuals who fit within that receives FAPE, including any extended support of those individually designed exception and include those individuals school year services, if appropriate. services, progressing in the general within its Part B child count. (Section 612(a)(9) of the Act). If a child curriculum from grade-to-grade. The Discussion: Before determining that with a disability is determined eligible group determining the eligibility of a an individual is not eligible under this to receive Part B services, the public child who has a disability and who is part to receive Part B services, the State agency must convene a meeting and progressing from grade-to-grade must must make reasonable efforts to obtain develop an IEP by the child’s third make an individualized determination and review whatever information is birthday, and must in developing the as to whether, notwithstanding the needed to determine that the IEP determine when services will be child’s progress from grade-to-grade, he incarcerated individual had not been initiated. For 2-year olds served under or she needs special education and identified as a child with a disability Part C, the public agency must meet related services. The substance of Note and did not have an IEP in his or her with the Part C lead agency and the 2, as revised, should be incorporated last educational placement prior to family to discuss the child’s transition into the text of the regulation, because incarceration in an adult correctional to Part B services at least 90 days (and, it sets forth long-standing requirements facility. The steps a State takes to obtain at the discretion of the parties, up to 6 that are based on the statute (see such information may include a review months) before the child turns 3. (See analysis of ‘‘General Comments’’ of records, and interviewing the section 637 (a)(8)) of the Act). In order relating to the use of notes under this incarcerated individual and his or her to ensure a smooth transition for part). parents. children served under Part C who turn Changes: Section 300.121 has been A State may include in its Part B child 3 during the summer months, a lead revised to incorporate the substance of count an eligible incarcerated student agency under Part C may use Part C Note 2, and the note deleted. with a disability to whom it provides funds to provide FAPE to children from Comment: None. FAPE, even if the State is permitted their third birthday to the beginning of Discussion: To ensure that children under § 300.122(a)(2) and State law to the following school year. (See section with disabilities have available FAPE, exclude that individual from eligibility. 638 of the Act). consistent with the requirements of this It is not necessary to provide additional Children with disabilities who have part, it is important for the Department clarification regarding these issues in their third birthday during the summer to be able to verify that each State’s the regulations. months are not automatically entitled to policies are consistent with their Proposed Note 2 quoted from the receive special education and related responsibilities regarding important House Committee Report on Pub. L. services during the summer, and the aspects of their obligation to make FAPE 105–17 which, with respect to public agency must provide such available. Therefore, § 300.121(b) should paragraph (a)(2) of this section (relating services during the summer only if the be revised to provide that each State’s to certain students with disabilities in IEP team determines that the child policy regarding the right to FAPE of all adult prisons), stated that: needs extended school year services at children with disabilities must be The bill provides that a State may also opt that time in order to receive FAPE. The consistent with the requirements of not to serve individuals who, in the substance of Note 1 should be §§ 300.300–300.313. educational placement prior to their incorporated into the text of the Changes: Section 300.121(b) has been incarceration in adult correctional facilities, regulation, because it sets forth long- revised to provide that the States’ were not actually identified as a child with standing requirements that are based on policies concerning the provision of a disability under section 602(3) or did not the statute (see analysis of ‘‘General FAPE must be consistent with the have an IEP under Part B of the Act. The Comments’’ relating to the use of notes requirements of §§ 300.300–300.313. Committee means to* * *make clear that services need not be provided to all children under this part). Exception to FAPE for Certain Ages who were at one time determined to be Changes: The substance of Note 1 has (§ 300.122) eligible under Part B of the Act. The been added to the text of the Committee does not intend to permit the regulations, and the note has been Comment: Some commenters exclusion from services under part B of deleted. expressed support for § 300.122(a)(2), children who had been identified as children Comment: Some commenters which sets forth an exception to the with disabilities and had received services expressed support for Note 2 (regarding FAPE requirement for certain youth under an IEP, but who had left school prior the determination of eligibility for who are incarcerated in adult to their incarceration. In other words, if a children advancing from grade to grade), correctional facilities, and Note 2 which child had an IEP in his or her last educational placement, the child has an IEP and recommended that the substance of includes clarifying language from the for purposes of this provision. The the note be incorporated into the text of House Committee Report. A few Committee added language to make clear that the regulations. A few of the commenters wanted the regulation to children with disabilities aged 18 through 21, commenters suggested deleting the clarify the responsibility of a State who did not have an IEP in their last second sentence of Note 2 (relating to where reasonable efforts to obtain prior educational setting but who had actually the IEP team) before making the note a records from the last reported been identified should not be excluded from regulation. Other commenters educational placement have been made, services. (H. R. Rep. No. 105–95, p. 91 (1997)) recommended that Note 2 be deleted, as but no records are available. The The concepts in this note are it confuses the IEP team with the team commenter also requested adding a note important in the implementation of this that determines eligibility. to clarify that, even if State law does not program. Appropriate substantive Discussion: The revised IEP require the provision of FAPE to portions of the note should be clarified requirements at § 300.347 require public students with disabilities, ages 18 and included in the regulations. agencies to provide special education through 21, who, in the last educational Consistent with the decision to not and related services to enable students placement prior to their incarceration in include notes in these final regulations, with disabilities to progress in the an adult correctional facility were not the note should be removed.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00151 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12556 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

Changes: Section 300.122(a)(2) has resources; and (3) if parents believe graduation, are sufficient to ensure that been revised by adding appropriate their child should not graduate, they parents are appropriately informed to substantive portions of Note 2 to the text have procedural avenues available to protect the rights of their child. The of the regulation, to specify situations in contest the graduation. parents would have the option, as with which the exception to FAPE for A few commenters stated that any public agency proposal to change students with disabilities in adult § 300.122(a)(3) should not be interpreted the educational program or placement of prisons does not apply. as prohibiting a State from using Part B a child with a disability, to seek to Comment: Some commenters funds to serve students aged 18 through resolve a disagreement with the expressed support for § 300.122(a)(3) 21 who have attained a regular diploma proposal to graduate the student (which provides that the obligation to but who are still in the State-mandated through all appropriate means, make FAPE available does not apply to age range. including mediation and due process students with disabilities who have Discussion: Because the rights hearing proceedings. graduated from high school with a afforded children with disabilities Exiting or graduating a student with a regular high school diploma), and Note under IDEA are important, the disability with a credential that is 1 (which clarifies that graduation with termination of a child’s eligibility under different from the diploma granted to a regular high school diploma is a Part B is equally important. When students who do not have disabilities change of placement requiring notice public agencies make the determination does not end an individual’s eligibility and reevaluation), and recommended as to whether the Part B eligibility of a for Part B services, and is not a change that the substance of the note be student with a disability should be in placement requiring notice under included in the text of the regulation. terminated because the student has met § 300.503. The second paragraph of Other commenters requested that the requirements for a regular high proposed Note 1 clarified that if a high § 300.122(a)(3) and Note 1 be deleted school diploma or that the student’s school awards a student with a because there is no statutory basis for eligibility should continue until he or disability a certificate of attendance or these regulatory interpretations. Several she is no longer within the State- other certificate of graduation instead of commenters stated that, in most States, mandated age of eligibility, it is a regular high school diploma, the graduation is dependent on a student’s important to ensure that the student’s student would still be entitled to FAPE having met specific standards (State, rights under the Act are not denied. until the student reaches the age at local, or both). As the comment notes, a number of which eligibility ceases under the age A few commenters stated that some the new IEP requirements focus requirements within the State or has States have developed procedures for increased attention on how children earned a regular high school diploma. disabled students to graduate with a with disabilities can achieve to the same This clarification is consistent with the diploma based on the IEP, and level as nondisabled children. In statute and final regulations. However, recommended that the term ‘‘regular’’ be implementing these new requirements, consistent with the decision to not deleted from § 300.122(a)(3). Other it is important that the parents, include notes in the final regulations, commenters recommended deleting the participating in decisions made in the note should be deleted. language about graduating with a developing their child’s IEP—including An SEA or LEA may elect to use Part regular high school diploma, and added decisions about their child’s educational B funds for services for a student with that many States have, with public program (e.g., the types of courses the a disability who has graduated with a input, established multiple graduation child will take) and the child’s regular high school diploma but who is diplomas and certificates. Other participation in State and district-wide still within the State-mandated age commenters recommended deleting the high stakes assessments—understand range for Part B eligibility, but may not provision, and added that some States the implications of those decisions for include the student in its Part B child are shifting from diplomas to certificates their child’s future eligibility for count. For children aged 19 through 21, of mastery based on what students graduation with a regular diploma. eligibility for services is a matter of know. A few commenters stated that The commenters persuasively point State discretion. receipt of a diploma or age 21 is the out that, there is a less burdensome way Changes: Section 300.122(a)(3) has only reason for termination of to protect the interests of students with been revised to make clear that eligibility, and, therefore, the disabilities under the Act whose graduation from high school with a requirement is redundant and should be eligibility for services is ending because regular diploma is a change in deleted. of graduation with a regular diploma or placement requiring notice in Many commenters recommended because they are no longer age eligible. accordance with § 300.503. Section deleting Note 1, stating that graduation If an eligibility change is the result of 300.534(c), also has been revised to is not a change of placement, and that the student’s aging out or receipt of a clarify that a reevaluation is not reevaluation is not necessary and regular high school diploma, the required before the termination of a should not be required. These statutory requirement for reevaluation student’s Part B eligibility due to commenters stated the basis for their before a change in a student’s eligibility graduation with a regular high school recommendation by adding that: (1) under section 614(c)(5) should not be diploma, or ceasing to be age-eligible With the addition of the new IEP read to apply. under State law. Note 1 has been requirements such as benchmarks, Graduation with a regular high school removed. reporting to parents, and examination of diploma ends a student’s eligibility for transition needs at age 14, the Part B services, and is, therefore, a Child Find (§ 300.125) reevaluation requirement becomes change in placement requiring notice Comment: A few commenters redundant; (2) if the parents and student under § 300.503 a reasonable time expressed support for the statutory are provided notice of the impending before the public agency proposes to provision reflected in § 300.125(c), graduation and the IEP team concurs, graduate the student. The new which states that nothing in the Act the additional step of reviewing current requirements for transition planning requires that children be classified by data and determining the nature and and for reporting to parents regarding their disability. Some commenters scope of a reevaluation is unnecessary the progress of their child, together with believed that § 300.125(c) is inconsistent and will consume staff time and the notice to them regarding proposed with § 300.125(b)(3), which requires a

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00152 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12557 description of the policies and in the text of the regulations at children, including children with procedures that the State will use to § 300.300(a)(3)(ii). Specifying that disabilities, are prepared to meet high obtain the number of children by services and placement not be standards is, of course, strongly disability category, and § 300.751, determined or limited based on category encouraged, and the Department funds which requires the reporting of data by of disability is not incompatible with many programs to identify and disability category. the special considerations related to disseminate best practices. Section Some commenters recommended that children who are blind and visually 300.126, however, addresses the Note 2 (which states that the services impaired. eligibility requirements relating to and placement needed by each child It is clear, without the need for further evaluation and the determination of with a disability must be based upon the clarification in the regulations, that the eligibility that States must meet, rather child’s unique needs and may not be child find and evaluation procedures than best practices. determined or limited based upon a under Part C must be followed when the Changes: None. category of disability) be incorporated purpose is to locate, identify and into the regulations. Other commenters evaluate infants and toddlers with Confidentiality of Personally recommended deleting the phrase ‘‘and disabilities who may be eligible for early Identifiable Information (§ 300.127) may not be determined or limited based intervention services under that Part, Comment: None. upon a category of disability,’’ so as not and that the child find and evaluation Discussion: In the NPRM, § 300.127 to conflict with § 300.346(a)(2)(iii) procedures under Part B must be included a note that contained a (consideration of special factors relating followed when the purpose is to locate, reference to the Family Education to children who are blind or visually identify and evaluate children with Rights and Privacy Act (FERPA) in 34 impaired). Other commenters stated that disabilities who may be eligible for CFR Part 99. There is a clear Note 2 should be deleted because it special education and related services relationship between the confidentiality deals with services and placements, under that part. requirements in IDEA and those in rather than child find. Note 3 provided needed clarification FERPA. The regulations in §§ 300.560— A few commenters requested that the of long-standing statutory requirements, 300.577 are drawn directly from the regulations clarify the child find under Parts B and C regarding the FERPA regulations. requirements for children birth through respective responsibilities of the SEA Changes: Consistent with the decision age 3, because the requirements under and Part C lead agency for child find to eliminate notes from the final Parts B and C are different, and it is not activities. In States in which the SEA regulations, the note following this clear which must be followed. One and Part C lead agency are different, section has been removed. commenter recommended that Note 3 each agency remains responsible for Least Restrictive Environment (which describes the link between child ensuring that the child find (§ 300.130) find under Parts B and C) be responsibilities under its program are incorporated into the regulations met, even if the agencies, through an Comment: A few commenters because it promotes interagency interagency agreement, delegate to one requested that ‘‘State-approved private coordination. Other commenters stated agency the primary role in child find for schools and facilities’’ be added to the that Note 3 is unnecessary and should the birth through two population. When list of placement options included in be deleted because the text of § 300.125 different, the SEA and Part C lead the continuum, as set forth in the note sufficiently covers the statutory agency are encouraged to cooperate to following § 300.130. requirement. avoid duplication and ensure A few commenters were concerned Some commenters expressed support comprehensive child find efforts for the that the proposed regulations did not for Note 4 (relating to highly mobile birth through two population. The include the State eligibility requirement, children, such as the homeless and substance of the note should be set forth in the prior regulations at migrant children). A few commenters incorporated into the text of the § 300.132(b), that each State include in requested more guidance related to a regulation. its State plan the number of children State’s obligation to migrant children. Although it is difficult to locate, within each disability category who are Other commenters stated that States are identify, and evaluate highly mobile participating in regular education already doing their best to find these children with disabilities, it is programs, and the number of children children, but added that it is (1) important to stress that the States’ child with disabilities who are in separate virtually impossible to meet fully an find responsibilities under § 300.125 classes or separate school facilities or obligation to ensure that all of these apply equally to such children and that otherwise removed from the regular children are found, and (2) extremely the substance of Note 4 should be added education environment. difficult to obtain accurate data on these to the text of § 300.125(a). A few commenters stated that the note populations. Changes: The substance of Notes 1, 3, and § 300.551 should be deleted; they Discussion: Section 300.125(c), which and 4 has been added to the text of the assert that there is no requirement in the clarifies that the Act does not require § 300.125; the substance of Note 2 has statute for a continuum, and that the public agencies to label children by been added to the text of note and the regulation are inconsistent disability, is not inconsistent with the § 300.300(a)(3)(ii); and the four notes with the statute’s strengthened data reporting requirements in have been deleted. requirement that children with §§ 300.125(b)(3) and 300.751. The disabilities be integrated. statement in Note 2—that the services Procedures for Evaluation and Discussion: As described in and placement needed by each child Determination of Eligibility (§ 300.126) § 300.551(b)(1), the continuum includes with a disability may not be determined Comment: A few commenters the placement option of ‘‘special or limited based upon a category of requested that the regulation specify schools.’’ The requested revision disability—is crucial in implementing best practices for evaluation and the regarding State-approved private both the child find and FAPE determination of eligibility. schools and facilities is, therefore, not requirements. Thus, the substance of the Discussion: The use of best practices necessary. State-approved private note has been included in this in all educational programs and schools and facilities are already discussion, and has been incorporated activities in order to help ensure that all covered by the continuum.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00153 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12558 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

The requirement in the prior incorporated into paragraph (a) of this Changes: None. regulations at § 300.132(b), that each section. Transition of Children From Part C to State include in its State plan the Comment: A number of commenters Preschool Programs (§ 300.132) number of children within each expressed concerns about the provisions disability category who are participating of § 300.130(b), regarding the steps that Comment: A few commenters in regular education programs, and the a State must take if it distributes State expressed concern regarding the cost of number of children with disabilities funds on the basis of the type of setting home visits, especially in large who are in separate classes or separate in which a child is served. Some geographic areas, that would be needed school facilities or otherwise removed commenters were concerned that this to implement the transition from the regular education environment, provision not be implemented in a way requirements of § 300.132. was based upon an express provision in that would negatively impact State Discussion: The provisions of the prior statute at section 612(5)(B) that funding formulas for State schools for § 300.132 are drawn from the statutory was removed from the statute by the the deaf. Other commenters requested requirements at section 612(a)(9), and IDEA Amendments of 1997. Those that the regulations provide clear do not set forth any additional amendments also eliminated the guidance as to what a State must do to requirements. While § 300.132(c) requirement that each State submit a determine whether its funding requires that each LEA participate in State plan, instead requiring that each mechanism is resulting in placements transition planning conferences State demonstrate eligibility under Part that violate the least restrictive arranged by the designated lead agency B by having specified policies and environment requirements of the Act. under section 637(a)(8) (which requires procedures on file with the Secretary. A few commenters asked that the the lead agency to convene such a The Department will, however, continue regulations make clear that individual conference), § 300.132 does not require to collect data regarding placement in needs, rather than a State’s finding any home visits. Therefore, no revision the LRE under section 618 of the Act. mechanism must drive placement is necessary. Changes: None. The statute, at section 607(b), decisions, but that a State is not required to change the way in which it Comment: A few commenters prohibits the Secretary from requested that the regulation be revised implementing or publishing regulations distributes State funds to public agencies unless the funding mechanism to make clear that the pendency implementing IDEA that would provisions of § 300.514 apply to procedurally or substantively lessen the results in placement decisions that violate Part B’s LRE requirements. Other children transitioning from early protections provided to children with intervention services under Part C to disabilities, as set forth in the Part B commenters requested that the regulations be revised to require that a preschool special education and related regulations as in effect on July 20, 1983, services under Part B. including those relating to placement in State’s assurance under § 300.130(b)(2) must specify the steps the State will Discussion: The pendency provision the least restrictive environment, except at § 300.514(a) does not apply when a to the extent that the revised regulation take by a date certain (no later than the end of the following fiscal year) to child is transitioning from a program reflects the clear and unequivocal intent developed under Part C to provide of the Congress in legislation. The revise its funding mechanism. Discussion: The provisions of appropriate early intervention services provisions of § 300.551 in the NPRM § 300.130(b) are unchanged from section into a program developed under Part B were included in the regulations as in 612(a)(5)(B) of the Act. A State is not to provide FAPE. Under § 300.514(b), if effect on July 20, 1983. Therefore, those required to revise a funding mechanism the complaint requesting due process provisions must, consistent with section by which the State distributes State involves the child’s initial admission to 607(b) of the Act, be retained in the funds on the basis of the type of setting public school, the public agency regulations. In fact, the Senate and in which a child is served, unless it is responsible for providing FAPE to the House Committee Reports on Pub. L. determined that the State does not have child must place that child, with the 105–17 support the continuing policies and procedures to ensure that consent of the parent, into a public importance of the continuum provision: the funding mechanism does not result preschool program if the public agency The committee supports the longstanding in placements that violate the LRE offers preschool services directly or policy of a continuum of alternative requirements of §§ 300.550–300.556. through contract or other arrangement to placements designed to meet the unique The Senate and House Committee nondisabled preschool-aged children needs of each child with a disability. Reports on Pub. L. 105–17 emphasize until the completion of authorized Placement options available include review proceedings. instruction in regular classes, special classes, the importance of section 615(a)(5)(B), stating that: Changes: None. special schools, home instruction, and Comment: One commenter expressed instruction in hospitals and institutions. For The bill amends the provisions on least concern that § 300.132(b) suggests that a disabled children placed in regular classes, restrictive environment * * * to ensure that supplementary aids and services and program of special education and the state’s funding formula does not result in related services be in place for each resource room services or itinerant placements that violate the requirement. instruction must also be offered as needed. The committee supports the long standing child with a disability on his or her (S. Rep. No. 105–17, p. 11; H. R. Rep. No. policy that to the maximum extent third birthday, even if the birthday 105–95, p. 91 (1997)) appropriate, children with disabilities are occurs during the summer and the child educated with children who are nondisabled does not need extended school year The substance of the note is helpful and that special separate schooling, or other services. in implementing the LRE requirements, removal of children with disabilities from the Discussion: Section 612(a)(9) of the and should be included in the text of regular educational environment occurs only Act requires that, by the third birthday the regulations. when the nature or severity of the disability of a child with a disability participating is such that education in regular classes with Changes: Consistent with the decision the use of supplementary aids and services in early intervention programs assisted to delete notes from the final cannot be achieved satisfactorily. (S. Rep. No. under Part C who will participate in regulations, the note following § 300.130 105–17, p. 11; H. R. Rep. No. 105–95, p. 91 preschool programs assisted under Part in the NPRM has been removed. The (1997)) Further clarification in the regulation B, an IEP or, if consistent with substance of the note has been is not needed. § 300.342(c) and section 636(d) of the

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00154 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12559

Act, an IFSP, has been developed and parties, up to 6 months before the third that each State must have on file to must be implemented for the child. This birthday of a toddler receiving early establish eligibility. means that if a child with a disability is intervention services. The Part B Changes: None. determined eligible to receive Part B regulations require that an IEP be Comprehensive System of Personnel services, the public agency must developed and implemented for Development (§ 300.135) convene a meeting and develop an IEP children with disabilities by their third by the child’s third birthday, and must, birthday. It is inappropriate to specify Comment: A few commenters in developing the IEP, determine when further timelines in § 300.132. Section requested that the regulation be revised services will be initiated. Children with 300.533 permits an LEA, if appropriate, to require that each State, in developing disabilities who have their third to review existing data regarding a child its comprehensive system of personnel birthday during the summer months are with a disability (including a child who development, consider the need for not automatically entitled to receive has been referred by the lead agency) as bilingual special education and assistive special education and related services part of an initial evaluation. technology instructors. Other during the summer, and the public Changes: None. commenters requested that the agency must provide such services Comment: A few commenters regulations be revised to require that during the summer only if the IEP team requested that the regulation be revised special education, regular education, determines that the child needs to emphasize the responsibility of the and related services personnel be extended school year services during lead agency to ensure that the LEA trained regarding the use of home the summer in order to receive FAPE. receive advance notice of any transition instruction and the circumstances under Changes: The regulation has been planning conference at which the which such instruction is appropriate. revised to clarify that decisions about participation of the LEA is required. Other commenters requested that the summer services for children who turn Discussion: The Part C regulations regulation be revised to require that three in the summer are made by the IEP require at § 303.148(b) that the lead each State have on file with the team. agency notify the local educational Secretary policies and procedures on Comment: A few commenters agency in which a child with a the equitable participation of private requested that the regulation be revised disability resides when the child is school personnel in staff development, to clarify that representation of an LEA approaching the age of three, and inservice, etc. in the transition planning process convene, with family approval, a Discussion: The CSPD provisions in would most appropriately include all transition planning conference which §§ 300.380–300.382 require each State members of the IEP team, in order to includes the lead agency, the family and to develop and implement a CSPD to further ‘‘smooth’’ the transition process the LEA at least 90 days, and at the ensure ‘‘an adequate supply of qualified and ensure appropriate attention to the discretion of the parties, up to 6 months special education, regular education, child’s needs. before the child’s third birthday. and related services personnel’’ Discussion: Section 612(a)(9) of the Implicit in these requirements is the (§ 300.380(a)(2)), and that ‘‘all personnel Act leaves to each LEA the requirement that the lead agency inform who work with children with responsibility to determine who will the LEA early enough so that the LEA disabilities * * * have the skills and most appropriately represent the agency can arrange to participate in the knowledge necessary to meet the needs in transition planning conferences. The conference. Additional clarification in of children with disabilities’’ requested revision goes beyond the the Part B regulations is not necessary. (§ 300.382). This would include, for requirements of the Act. Changes: None. example, consideration of the needs of Changes: None. Private Schools (§ 300.133) personnel serving limited English Comment: A few commenters proficient students and students who Comment: A few commenters requested that a definition of the term need assistive technology services and requested that the regulations be revised ‘‘effective’’ be included in the devices. The Act and regulations leave to require each State to include, as part regulations. to each State the flexibility to determine of the policies and procedures that it Discussion: It is not necessary to the specific personnel development must have on file with the Secretary in provide a definition of the term needs in the State. order to establish eligibility under Part ‘‘effective,’’ and doing so would restrict Matters related to the participation of B of the Act, the policies and the flexibility needed to implement the private school staff in inservice training procedures that the State has Act for a very heterogeneous group of and other personnel development established to comply with the children. activities are decisions left to the provisions of § 300.454(b), which Changes: None. discretion of each State and LEA, and, Comment: A few commenters requires that each LEA consult with therefore, should not be addressed requested that the regulations be revised representatives of private school under this part. to require that: (1) the transition children with disabilities in making Changes: None. planning conference be incorporated determinations regarding the provision Comment: None. into the required timelines under Part B of special education and related services Discussion: The Senate and House of the Act for determining eligibility and to children with disabilities who have committee reports on Pub. L. 105–17, in developing an IEP; and (2) LEAs been placed by their parents in private reference to the CSPD requirements of acknowledge and consider existing schools. this section state that: documentation related to eligibility and Discussion: Section 300.133 service planning prior to conducting an specifically requires that each State Section 612, as [in] current law, requires individual evaluation of a child referred ‘‘have on file with the Secretary policies that a State have in effect a Comprehensive and procedures that ensure that the System of Personnel Development (CSPD) from the Part C system. that is designed to ensure an adequate supply Discussion: The Part C regulations requirements of §§ 300.400–300.403 and of qualified personnel, including the require, at § 303.148(b)(2), that the lead §§ 300.450–300.462 are met.’’ Thus, the establishment of procedures for acquiring agency convene, with family approval, a regulation already requires that the and disseminating significant knowledge transition planning conference at least procedures required by § 300.454(b) be derived from educational research and for 90 days, and at the discretion of the included in the policies and procedures adopting, where appropriate, promising

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00155 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12560 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations practices, materials, and technology. (S. Rep. retained as a note or incorporated into professional requirements in the State’’ No. 105–17, p. ; H. R. Rep. No. 105–95, p. the regulations, other commenters in § 300.136(a)(1) or ‘‘highest 93 (1997)) recommended that Note 3 be deleted requirements in the State applicable to The States will be able to use the because it would ‘‘nullify’’ the a specific profession or discipline’’ in information provided to meet the requirements of this section. § 300.136(a)(2). Section 300.136 requirement in § 300.135(a)(2) as a part Discussion: The substance of incorporates verbatim the definitions of of their State Improvement Plan under § 300.136 of the NPRM has been these terms contained in the current section 653 of the Act, if they choose to retained in these final regulations, but regulations implementing the Act’s do so. the notes have been removed. Section personnel standards provisions, which Changes: Consistent with the decision 300.136 incorporates the provisions on were added to Part B by the Education to not include notes in the final personnel standards contained in of the Handicapped Act Amendments of regulations, the note following this § 300.153 of the current regulations, 1986, Pub. L. 99–457. section has been deleted. with the addition of the new statutory These definitions are consistent with amendments in section 612(a)(15)(B)(iii) the congressional intent that all Personnel Standards (§ 300.136) and (C) of the Act. personnel in a specific profession or Comment: Commenters made a The IDEA Amendments of 1997 do discipline meet the same standards number of suggestions regarding general not alter States’ responsibilities to (1) across all State agencies; nevertheless, modifications to this section. Some establish policies and procedures they still afford States flexibility in commenters expressed concern that in relating to the establishment and determining the steps that must be taken no case should children with maintenance of standards for ensuring to upgrade all personnel in a specific disabilities receive services from that personnel necessary to carry out the profession or discipline to meet individuals who do not meet the highest purposes of this part are appropriately applicable State qualification standards requirements applicable to their and adequately prepared and trained, if the SEA’s standard is not based on the professions. Commenters recommended (2) establish their own minimum highest requirements in the State clarification requiring LEAs to ensure standards for entry-level employment of applicable to the profession. The that all personnel are adequately trained personnel in a specific profession or definition of ‘‘highest requirements in to meet all the requirements of the discipline providing special education the State’’ is based on the highest entry- IDEA, with emphasis on any and related services to children with level academic degree required for requirement on which the LEA has been disabilities under these regulations employment in a specific profession or found by the SEA to be out of based on the highest requirements in the discipline across all State agencies. compliance, such as the failure to State across all State agencies serving As explained in Note 1 to this section provide necessary assistive technology children and youth with disabilities, of the NPRM, these regulations require devices and services. and (3) if State standards are not based a State to use its own existing Some commenters recommended that on the highest requirements in the State requirements to determine the standards the definition of ‘‘appropriate applicable to a specific profession or appropriate to personnel who provide professional requirements in the State’’ discipline, take specific steps to upgrade special education and related services in § 300.136(a)(1) be amended to all personnel in that profession to under Part B of the Act, and nothing in include an explicit reference to appropriate State qualification Part B requires that all providers of ‘‘professionally-recognized’’ entry level standards by a specified date in the special education and related services requirements. Other commenters future. attain a doctorate or any other specified requested additional clarification Contrary to the suggestion made by academic degree, unless the State regarding the term ‘‘highest commenters, the Act’s personnel standard requires this academic degree requirements in the State.’’ Those standards provisions are not intended to for entry-level employment in that commenters who interpreted the term as be a mechanism for addressing profession or discipline. imposing the maximum standard problems that result from the denial of While States may consider recommended that the definition be special educational services to children professionally-recognized standards in amended to specify that every provider with disabilities under Part B. If an SEA deciding what are ‘‘appropriate of special education and related services finds that any of its public agencies are professional requirements in the State,’’ must have a doctorate. Some out of compliance with the there is nothing in the statute that commenters recommended clarification requirements of Part B, the SEA, in requires States to do so. Rather, these that highest requirements in the State accordance with the general supervision matters appropriately are left to States. are the minimum requirements requirements of section 612(a)(11) of the Therefore, to clarify the extent of established by a State which must be Act and § 300.600 of these regulations, flexibility afforded to States in meeting met by personnel providing special must take whatever steps it determines the Act’s personnel standards education and related services to are necessary to ensure the provision of requirements, a new paragraph (b)(3) children with disabilities under Part B. FAPE to children with disabilities who should be added to these final Numerous comments were received are eligible for services under Part B. In regulations, and provides, in accordance regarding Note 1 to this section of the addition, through the comprehensive with Note 1 to this section, that nothing NPRM, and regarding Note 3 as it relates system of personnel development in these regulations requires States to to paragraphs (b) and (c) of this section. (CSPD), an SEA must conduct a needs set any specified training standard, such A number of commenters indicated that assessment and identify areas of as a master’s degree, for entry-level they had found Note 1 to be extremely personnel shortages, as well as describe employment of personnel who provide useful in understanding the scope of the strategies it will use to address its special education and related services this section; however, other commenters identified needs for preparation and under Part B of the Act. recommended that Note 1 either be training of additional personnel States also have the flexibility to deleted entirely, or that the substance of necessary to carry out the purposes of determine the specific occupational the note be incorporated into the text of Part B. categories required to provide special § 300.136. While many commenters There is no need to clarify the education and related services and to recommended that Note 3 either be regulatory definitions of ‘‘appropriate revise or expand those categories as

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00156 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12561 needed. Therefore, the clarification mandatory for States to use of a qualified professional with regarding this issue contained in the paraprofessionals and assistants. Other competency in the technique being note to the current regulation should be commenters, who did not support the employed by the paraprofessional or incorporated as part of paragraph (a)(3) use of paraprofessionals and assistants assistant; and (6) the State must have in the definition of ‘‘specific profession to assist in the provision of services information on file with the Secretary or discipline.’’ under Part B, recommended regulations that demonstrates that the State has Despite commenters’ concerns that prohibiting their use. laws, regulations, or written policies Note 3 would ‘‘nullify’’ the Many commenters recommended that related to the training, use, and requirements of this section, experience the regulations clarify that supervision of paraprofessionals and in administering the Act’s personnel paraprofessionals and assistants who assistants. standards provisions has demonstrated assist in the provision of speech Some commenters recommended that that there is a need to afford States that pathology and audiology services under § 300.136 be amended to expand have only one entry-level academic these regulations must be supervised by services that paraprofessionals and degree for employment of personnel in an individual who meets the highest assistants could assist in providing a particular profession or discipline the entry-level academic degree under Part B. Other commenters ability to modify that standard if the requirement applicable to that maintained that the use of State determines that modification of profession. Similarly, commenters paraprofessionals and assistants to assist the standard is necessary to ensure the requested clarification that all in the provision of some special provision of FAPE to all children with paraprofessionals and assistants education and related services should disabilities in the State. Therefore, the assisting in the provision of special be prohibited. For example, some substance of Note 3 should be education and related services under commenters recommended that the incorporated into this section as Part B must meet their profession’s or regulations be clarified to specify that paragraph (b)(4). discipline’s highest entry-level paraprofessionals may not assist in the Changes: Note 1 has been removed as academic degree requirement. provision of mental health services, a note and incorporated, as appropriate, Some commenters recommended that while other commenters recommended both into the above discussion and into the terms ‘‘paraprofessionals’’ and clarification indicating that § 300.136. Note 2 has been removed as ‘‘assistants’’ be defined separately, and paraprofessionals and assistants could a note, and, as discussed later in this that the roles and responsibilities and assist in the provision of psychological attachment, the substantive portion of training be set out in the regulations so services, including evaluation and Note 2 has been incorporated into that all States could have the same treatment services, only under the § 300.136(g) of these final regulations. definitions, since differences in supervision of a school psychologist. Note 3 has been removed as a note and definitions and responsibilities among has been incorporated into § 300.136, as States could interfere with the rights of Other commenters requested explained below. children with disabilities to receive clarification regarding whether Paragraph (a)(3) has been amended by appropriate services under Part B. These paraprofessionals could ever be used in adding a new paragraph (iv), which commenters also provided suggested lieu of special education teachers. A few states that the definition is not limited definitions to address these concerns. commenters stated that in no case to traditional occupational categories. Commenters also suggested specific should medical procedures be provided New paragraphs (b)(3) and (b)(4) have language that (1) only those by untrained individuals, and requested been added, which provide that (1) paraprofessionals and assistants who are clarification to this effect. nothing in this part requires a State to appropriately trained and supervised A number of commenters establish a specified training standard are allowed to assist in the provision of recommended that parents must be (e.g., a masters degree) for personnel services under Part B in accordance notified whenever paraprofessionals or who provide special education and with State law, regulations, written assistants are assigned to assist in the related services under Part B of the Act, policy, and accepted standards of provision of services. Other commenters and (2) a State with only one entry-level professional practice, and only assist in recommended that this type of notice is academic degree for employment of the provision of services with the necessary whenever students with personnel in a specific profession or consent of their supervisors; (2) para- disabilities receive services from an discipline, may modify that standard professional and assistant services must individual who does not meet the without violating the other requirements be delivered under the direct, ongoing highest requirement applicable to their of this section. and regular supervision of a qualified professions, and that parents should Comment: Numerous comments were professional with competency in the have the right to challenge this issue received regarding the role of technique(s) employed by the through the IEP process. paraprofessionals and assistants under paraprofessional or assistant; (3) Discussion: Section 300.136(f) tracks Part B. Some commenters strongly paraprofessionals and assistants may the statutory requirement in section cautioned against additional regulation not develop, modify, or provide services 612(a)(15)(B)(iii), which permits, but since determinations regarding the independent of or without such does not require, the use of definitions of paraprofessionals and supervision, and may report findings paraprofessionals and assistants who are assistants and the scope of their but not make diagnostic or treatment appropriately trained and supervised, in responsibilities will vary widely from recommendations to special education accordance with State law, regulations, State to State and across disciplines. decision making teams; (4) the roles, or written policy, to assist in the These commenters also pointed out that supervision and training of provision of special education and Congress chose to provide only minimal paraprofessionals and assistants must be related services under Part B. Since the guidance in this area. Other commenters consistent with the professional statute affords a State the option of made a number of specific suggestions standards of the different areas in which using paraprofessionals and assistants to for regulatory changes. Some they work; (5) paraprofessionals and assist in the provision of special commenters recommended that the assistants, at a minimum, must receive education and related services to language in paragraph (f) be changed organized in-service training under the children with disabilities, it would be from ‘‘may’’ to ‘‘shall’’ to make it direct, ongoing and regular supervision inappropriate to regulate in a manner

VerDate 03-MAR-99 17:45 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00157 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm01 PsN: 12MRR2 12562 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations that would either require or prohibit the medical services that are for diagnostic discipline to appropriate professional use of paraprofessionals and assistants and evaluation purposes are eligible requirements in the State to use under Part B. related services under Part B. Another personnel who did not meet those The statute makes clear that the use category of ‘‘related services,’’ ‘‘school standards if they were experiencing of paraprofessionals and assistants who health services,’’ may be provided by a personnel shortages. These commenters are appropriately trained and school nurse or other qualified person regarded this provision as permitting supervised must be contingent on State in accordance with applicable State these States to waive applicable law, regulation, or written policy, giving qualification standards. It is critical that personnel standards. Some of these States the option of determining States that use paraprofessionals and commenters advocated not allowing whether paraprofessionals and assistants do so in a manner that is States to have a policy that would assistants can be used to assist in the consistent with the rights of children extend the three-year time frame for provision of special education and with disabilities to FAPE under Part B. individual applicants who are hired related services under Part B, and, if so, Since the Act provides that under the ‘‘waiver provision’’ to become to what extent their use would be paraprofessionals and assistants may fully qualified. Other commenters permissible. Therefore, there is no need assist in the provision of special requested clarification to ensure that to provide definitions of the terms education and related services, their use paragraph (g) not be applied on a ‘‘paraprofessionals’’ and ‘‘assistants’’ in as teachers would be inconsistent with system-wide basis but instead be these regulations, since States have the a State’s duty to ensure that personnel applied to individuals on a case-by-case flexibility to determine the scope of necessary to carry out the purposes of basis. their responsibilities. Part B are appropriately and adequately Other commenters believed that Section 300.382 of these regulations prepared and trained. paragraph (g) and Note 2 must be requires States to include in their CSPD Part B does not require that public deleted because under no circumstances a plan for the inservice and preservice agencies give parents information on should States that have achieved the preparation of professionals and how paraprofessionals and assistants are goal of upgrading all personnel in the paraprofessionals. Appropriate training assisting in the provision of services to State to meet appropriate professional and supervision are prerequisites for use their children. However, public agencies requirements have the option of of paraprofessionals and assistants are encouraged to inform parents about employing personnel, even temporarily, under Part B, and determinations of whether paraprofessionals are assisting who do not meet applicable State what constitutes ‘‘appropriate’’ training in the provision of special education personnel standards. and supervision are matters for each and related services to their children, Commenters requested specific State to decide, based on factors including the extent that these clarification that a State may exercise relevant to each profession or individuals are being supervised by the option under paragraph (g) of this discipline. Because these regulations do appropriately trained and qualified staff. section even though the State has not specify any particular standard for No clarification has been provided reached its established date, under persons providing special education and regarding which services are being paragraph (c) of this section, for training related services, but instead leave such provided by individuals who do not or hiring all personnel in a specific determinations to States, there also is no meet the ‘‘highest entry-level profession or discipline to meet need to specify any particular standards requirements’’ applicable to their appropriate professional requirements for paraprofessionals and assistants or profession. The Act’s personnel in the State. their supervisors in these regulations. standards provisions and these While some commenters No regulatory changes are necessary regulations at § 300.136(c) make it recommended that Note 2 either be regarding information that a State that permissible for States to use individuals retained or incorporated into the uses paraprofessionals and assistants to who do not meet the highest entry-level regulations, many commenters believed assist in the provision of special academic degree requirement applicable that Note 2 should be deleted because education and related services must to their profession, provided that the it encourages protracted delays in have on file with the Secretary, since State is taking steps to upgrade all attaining the highest requirement in the this information already would be part personnel in that profession to State applicable to specific professions of the personnel standards portion of appropriate professional requirements or disciplines. the State’s Part B State plan. If a State in the State by a specified date in the Discussion: Section 300.136(g) of the chose to adopt a policy regarding the future. IDEA allows State the discretion NPRM incorporates essentially verbatim use of paraprofessionals and assistants, to determine the ‘‘specified date’’ and the new statutory provision at section the State would be required to submit does not prevent a State from making 612(a)(15)(C) of the Act. Section its policy to the Department only if that changes to that date. Thus a State is not 300.136(g) affords States the necessary policy constitutes a change from the prohibited from extending its timeline flexibility to serve children with information contained in the State’s for retraining or hiring of personnel to disabilities if instructional needs exceed prior year Part B State submission, meet appropriate professional available personnel who meet under section 612(c) of the Act. requirements in the State. appropriate State personnel In addition, there is no need to Changes: None. qualification standards, even though the specify whether paraprofessionals and Comment: A number of comments State has satisfied the requirements of assistants can assist in the provision of were received regarding § 300.136(g). paragraph (c) of this section for psychological services, including These commenters requested definitions personnel in a specific profession or mental health services, under these of ‘‘most qualified individuals discipline. However, a State’s ability to regulations, or to what extent they can available,’’ ‘‘good faith efforts,’’ permit its LEAs to utilize this option is participate in the testing process, since ‘‘geographic area,’’ ‘‘satisfactory conditioned on a number of factors. State laws, regulations, and written progress,’’ and ‘‘shortages of personnel,’’ Under § 300.136(g), States are given policies, not Part B requirements, would or the clarification of these terms. the option of adopting a policy of govern these determinations. With Numerous commenters objected to allowing LEAs in the State, that have respect to ‘‘medical services,’’ however, allowing States that have upgraded all made a good faith effort to recruit and it should be noted that only those personnel in a specific profession or hire appropriately and adequately

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00158 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12563 trained personnel, in a geographic area disabilities if instructional needs exceed education, special education, and of the State where there is a shortage of available personnel, and if a State related services.’’ personnel that meet applicable State continues to experience shortages of Therefore, in meeting their obligations qualification standards, of using the qualified personnel, it must address under Part B and GEPA, States are most qualified personnel available who those shortages in its comprehensive required to take steps to ensure are making satisfactory progress toward system of personnel development. equitable access of individuals with completion of applicable course work Comment: Some commenters disabilities to their programs and must necessary to meet applicable State requested that clarification be provided take steps to remove barriers which qualification standards within a three- to ensure that personnel with prevent such access. It is expected that year period. disabilities were hired. One comment States that determine through their Therefore, in order for § 300.136(g) to requested that a new paragraph (h) be CSPD that they have employed an be invoked, the State must have made added to the regulations to specify that insufficient number of individuals with good faith efforts to recruit and hire States not utilize standards that ‘‘may disabilities will identify and remove appropriately and adequately trained screen out or tend to screen out barriers to the employment of personnel. However, before other individuals with disabilities.’’ Some individuals with disabilities in the personnel can be utilized, there must be commenters requested clarification State. This will ensure that qualified a shortage of qualified personnel as regarding the applicability of the individuals with disabilities are determined by the State, in a geographic personnel standards provisions to recruited and hired to provide special area as defined by the State, to meet private school staff serving children education and related services to instructional needs. The personnel who with disabilities parentally-placed in children with disabilities under these are utilized under these circumstances private schools, and recommended that regulations. also must be making satisfactory this be a part of the consultation While sign language interpreters must progress toward completion of process. be able to provide appropriate applicable course work within a three- Other commenters recommended that instruction and services to children who year period. these regulations require that students are deaf or hearing impaired, no While a State’s decision to invoke the who are deaf or hearing impaired clarification is necessary, since States policy under § 300.136(g) depends on a receive appropriate instruction in their must establish and maintain standards variety of State-specific factors, the native language, including sign for all personnel who are providers of statute does not restrict the State’s language, and that sign language special education and related services, ability to invoke this policy if the interpreters meet particular including sign language interpreters. conditions in § 300.136(g) are present. qualification standards. See discussion of § 300.23 (qualified However, it is expected that the personnel) in Subpart A of this Discussion: For the most part, the circumstances in which the policy Attachment. In addition, section issues raised by these commenters have under paragraph (g) of this section will 614(d)(3)(B)(iv) of the Act requires the been addressed elsewhere in these be invoked will prove to be the IEP team to consider the language and regulations or through other statutory exception rather than the rule. communication needs of children who requirements; therefore, no further The information provided by are deaf or hard of hearing. To ensure clarification has been provided in this commenters does not provide a that this occurs, § 300.136 would section. If State standards screen out sufficient basis for restricting to only require each State to ensure that the individuals with disabilities from one three-year period a State’s ability to necessary personnel are appropriately providing special education and related invoke § 300.136(g). Therefore, to avoid and adequately prepared and trained. confusion, and consistent with the services under these regulations, they The personnel standards provisions of determination explained in Note 2 to could violate Federal civil rights laws these regulations are applicable to this section in the NPRM, the portion of that prohibit discrimination on the basis persons providing services to children Note 2 that explains that this section of disability. with disabilities who are publicly can be invoked even if a State has In addition, as required by Section placed in private schools and to persons reached its established date for a 427 of the General Education Provisions providing special education and related specific profession or discipline under Act (GEPA), each State must have on services to parentally-placed private paragraph (c) of this section should be file with its Part B application to the school children the LEA, after incorporated into the regulations. Also, Secretary a description of the steps the consultation with representatives of the clarification from Note 2 that a State State is taking to ensure equitable access private schools, has chosen to serve. that continues to experience shortages to, and participation in programs and Changes: None. of personnel meeting appropriate activities assisted with Part B funds and professional requirements in the State must have identified the barriers to Performance Goals and Indicators must address those shortages in its equitable participation and developed (§ 300.137) comprehensive system of personnel strategies to address those barrier. Comment: Some commenters development should be incorporated The Part B CSPD provisions require requested that the regulations be revised into the regulations. each State to develop a plan for the in- to clarify the responsibility of a State to Changes: Paragraph (g) of this section service and preservice preparation of establish performance goals and of the NPRM has been designated as professionals and paraprofessionals who indicators for children with disabilities paragraph (g)(1) of these regulations. work with children with disabilities if the State has not established New paragraphs (g)(2) and (g)(3) have under these regulations. One of the performance goals and indicators for been added, and provide that (1) a State strategies that must be included in this general education students. They also that has met its established goal for a plan in accordance with § 300.382(h) is requested clarification of States’ specific profession or discipline under how a State will [r]ecruit, prepare, and responsibility to report to the Secretary paragraph (c) of this section is not retain qualified personnel, including and the public regarding progress prohibited from invoking paragraph personnel with disabilities and toward achieving the performance goals. (g)(1); and (2) each State must have a personnel from groups that are under- Discussion: Further clarification is not mechanism for serving children with represented in the fields of regular required. As set forth in § 300.137(a),

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00159 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12564 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations each State is required to demonstrate provisions of §§ 300.280–300.284. These State and district-wide assessments. that it has established performance goals provisions include public notice and Some commenters requested that are ‘‘consistent, to the maximum public hearings, and an opportunity for clarification as to whether students extent appropriate, with other goals the public to participate before that should participate in assessments standards for all children established by information is submitted to the according to their performance level or the State.’’ However, regardless of Department. The process applies to the the grade they are in based upon their whether a State has established goals for initial submission as well as any chronological age. Some commenters all children, it must establish goals for subsequent substantive provisions. requested clarification as to whether the performance of children with Changes: None. participation in alternate assessments disabilities, and must establish Participation in assessments (§ 300.138) was not required until July 1, 2000. A indicators that the State will use to few commenters requested a note to assess progress toward achieving those Comment: A number of commenters state that assessment practices goals that, at a minimum, address the raised concerns regarding the note appropriate for children in grades 4 and performance of children with following § 300.138, which states that it older might not be appropriate for disabilities on assessments, drop-out is assumed that only a small percentage younger children. rates, and graduation rates (§ 300.137(a) of children with disabilities will need Discussion: State and district-wide and (b)). alternative assessments; some assessment programs are closely aligned The regulation also specifies that each commenters requested that the language with State and local accountability- State report every two years to the of the note be incorporated into the based reform and restructuring Secretary and the public on the progress regulation itself, while others requested initiatives. Therefore, it is important to of the State, and of children with that the note be deleted, and further allow the flexibility needed for State disabilities in the State, toward meeting commenters requested clarification and local school districts to the goals established under § 300.137(a). regarding the meaning of ’small appropriately include disabled children The requested revisions are not percentage’ in the note and who would in State and district-wide assessment necessary. enforce that requirement. programs. Only minimum requirements Changes: None. Other commenters asked that the are included in these regulations for Comment: Some commenters regulation clarify that the IEP team must how public agencies provide for the requested that the regulation be revised make the determination that a child will participation of children with to require that, prior to each State’s participate in an alternate assessment. disabilities in State and district-wide reporting to the Secretary and the public Others asked that the regulation be assessments. The Department will be every two years, as required by revised to include criteria or guidelines working with State and local education § 300.137(c), the State conduct widely in the regulation for determining if an personnel, parents, experts in the field publicized forums at which students, alternate assessment can be used for a of assessment and others interested in parents, and concerned citizens can child, while others requested that the the area of assessment to identify best comment on a draft report, and that the regulations require that each State practice that could serve as the basis for State include the comments it receives provide such guidance for IEP teams. a technical assistance document. As as part of its final report to the Secretary Some commenters said that the use of provided in § 300.347(a)(5), the IEP and the public. Other commenters the term ‘‘alternate assessment’’ in the team must determine whether a child requested that the regulation be revised regulation and the use of the term with a disability will participate in a to require that each State establish its ‘‘alternative assessment’’ in the note particular State or district-wide goals for the performance of children caused confusion, and asked that assessment of student achievement, and with disabilities with the cooperation ‘‘alternate assessment’’ be defined. if the child will not, the IEP must and input of parents and children with Other commenters stated that costs of include a statement of why that disabilities, teachers, and members of alternate assessments would be assessment is not appropriate for the the community. prohibitive. Some commenters child and how the child will be Discussion: The Act requires that each expressed concerns regarding the use of assessed. If IEP teams properly make State report every two years to the accommodations. Some commenters individualized decisions about the Secretary and the public on the progress were concerned that the use of participation of each child with a of the State and of children with accommodations might affect test disability in general State or district- disabilities in the State toward meeting validity and standardization, while wide assessments, including the use of the State’s performance goals, but others requested further guidance as to appropriate accommodations, and neither requires nor prohibits States who has the authority to determine modifications in administration from implementing procedures to allow whether a particular accommodation is (including individual modifications, as the public the opportunity to comment necessary and how that determination appropriate), it should be necessary to on draft reports. It is appropriate to must be made. Some of the commenters use alternate assessments for a relatively leave the use of such procedures to the requested that the regulation specify small percentage of children with discretion of the States, and no that accommodations should address disabilities. Consistent with the additional procedures regarding the students’ specific needs and afford decision to not include notes in these reports are needed. maximum independence, while others final regulations, the note is deleted. In demonstrating eligibility under Part said that a student’s needs should be Section 300.138 requires the State or B, States are required to submit accommodated by tools or assistive LEAs, as appropriate, to develop information to the Department technology that he or she uses on a daily alternate assessments and guidelines for demonstrating that they meet the basis or with which he or she is most the participation of children with requirements of this section of the familiar. disabilities in alternate assessments for regulations. Before submitting that Other commenters asked that a note those children who cannot participate information to the Department, the be added to reaffirm the State’s in State and district-wide assessment States’ proposal will be subjected to responsibility to ensure that children programs. Alternate assessments need to public comment and involvement are provided the accommodations they be aligned with the general curriculum consistent with the public participation need so that they can participate in standards set for all students and should

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00160 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12565 not be assumed appropriate only for required to aggregate data regarding Some commenters recommended that those student with significant cognitive children who take alternate assessments § 300.142(a)(4) be amended to impairments. with results for students who take the incorporate Senate language about use Section 300.347(a)(5) requires that the general assessment. Other commenters of Medicaid funds to finance the cost of IEP team have the responsibility and the requested that the regulations require or services provided in a school setting in authority to determine what, if any, suggest that States disaggregate accordance with a child’s IEP to ensure individual modifications in the assessment results by disability category that Medicaid-funded services are administration of State or district-wide in reporting results to the public. A few provided in the LRE and not in assessments are needed in order for a commenters requested that ‘‘public accordance with a medical model. particular child with a disability to agency’’ be replaced with ‘‘SEA’’ in the However, some commenters were participate in the assessment. Section note following § 300.139. concerned that Medicaid funding would 300.138(a) should be revised to reflect Discussion: In order to ensure that only be available for services for the requirement that modifications in students with disabilities are fully children with disabilities in school administration of State or district-wide included in the accountability benefits settings, and that reimbursement for assessments must be provided if of State and district-wide assessments, it services for children in other settings, necessary to ensure the participation of is important that the State include such as the home, in accordance with children with disabilities in those results for children with disabilities their IEPs, would be denied. assessments. As part of each State’s whenever the State reports results for Although many commenters general supervision responsibility under other children. When a State reports acknowledged that Medicaid has been § 300.600, it must ensure the data about State or district-wide an effective funding source for services appropriate use of modifications in the assessments at the district or school in children’s IEPs, clarification was administration of State and district-wide level for nondisabled children, it also requested to ensure that there was not assessments. must do the same for children with a delay in or denial of services or Test validity is an important variable disabilities. Section 300.139 requires alteration in types of services provided and the Department has invested that each State aggregate the results of to children with disabilities under these discretionary funds in providing children who participate in alternate regulations, based on the rules of some assistance to States regarding assessments with results for children other provider or contractor. appropriate modifications. The who participate in the general Many commenters noted that some determination of what level of an assessment, unless it would be LEAs will delay initiating a service until assessment is appropriate for a inappropriate to aggregate such scores. Medicaid payments are made, and particular child is to be made by the IEP requested that § 300.142(d) be amended team. It should be noted, however, that Section 300.139 and the Act neither to specify (1) a timeline to ensure that out of level testing will be considered a require nor prohibit States from services are not delayed until payment modified administration of a test rather disaggregating assessment results by is received from another agency; (2) a than an alternative test and as such disability category in reporting results to requirement that the LEA must provide should be reported as performance at the public; this is a matter that should the service and seek reimbursement the grade level at which the child is be left to the discretion of each State. from the entity that is ultimately found placed unless such reporting would be The text of § 300.139 tracks the statute, to be financially responsible; (3) a statistically inappropriate. which addresses reporting requirements Although SEAs and LEAs are not of the SEA. timeline for entering into interagency required by § 300.138 to conduct The proposed note clarified that agreements; and (4) a timeline for the alternate assessments until July 1, 2000, § 300.139(b) requires a public agency to prompt provision of noneducational each SEA and LEA is required to ensure, report aggregated data that include services specified in a child’s IEP. Some beginning July 1, 1998, that, if a child children with disabilities, but that a commenters recommended that will not participate in the general public agency is not precluded from clarification be provided to specify that assessment, his or her IEP documents also analyzing and reporting data in State interagency agreements are how the child will be assessed. other ways (such as, maintaining a binding on contractors and managed Changes: Paragraph (a) has been trendline that was established prior to care organizations. revised to acknowledge that, for some including children with disabilities in Other commenters recommended a children with disabilities, participation those assessments). specific enforcement mechanism to in State and district-wide assessments Changes: Consistent with the decision make State IDEA grants contingent upon may require appropriate modifications to not include notes in the final the existence and effective operation of in administration of the assessments as regulations, the note following § 300.139 an interagency agreement that complies well as appropriate accommodations. of the NPRM has been removed. with IDEA. Alternatively, the The note has been removed. commenters’ recommendation was that Methods of ensuring services (§ 300.142) the regulations be amended to provide Reports Relating to Assessments Comment: Commenters emphasized a mechanism for school districts to seek (§ 300.139) that a child’s right to FAPE should not legal redress through the Department of Comment: Several commenters noted be adversely affected because the child Education or the judiciary against any that the requirement in § 300.139(b)(1) is eligible for services under Title XIX State agency which fails to act in that each State’s reports to the public of the Social Security Act (Medicaid). accordance with an existing legally- include ‘‘aggregated data that include For example, commenters appropriate interagency agreement. the performance of children with recommended adding clarification While many commenters found the disabilities together with all other prohibiting a State Medicaid agency or explanation in Note 1 to this section of children’’ exceeds the requirements of a Medicaid managed care organization the NPRM useful in understanding the the Act at section 612(a)(17)(B), and from refusing to pay for or provide a intent of these requirements and should be deleted from the regulations. service for which it would otherwise be therefore recommended that the note Other commenters requested responsible under Medicaid because the either be retained or incorporated into clarification as to whether States are service is part of FAPE for a child. the regulation, other commenters

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00161 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12566 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations recommended that Note 1 be removed the Senate and House Committee interagency agreements between because it exceeded the statute. Reports on Pub. L. 105–17 which had educational and noneducational public Discussion: While the concerns been incorporated into Note 1 to this agencies, including ensuring the prompt expressed by these commenters are very section of the NPRM, should be added resolution of interagency disputes. significant, most of them either already to paragraph (b)(1) of these regulations Effective interagency coordination are addressed in this section or to emphasize that health services should facilitate the timely delivery of elsewhere in these regulations. provided to children with disabilities special educational services as well as However, in light of the general decision who are Medicaid-eligible and meet the minimize any undue delays in the to remove notes from these final standards applicable to Medicaid, may delivery of such services financed by regulations, Note 1 should be removed not be disqualified from Medicaid noneducational public agencies. as a note, but pertinent portions are reimbursement because they are Despite suggestions of commenters, incorporated in this discussion. services provided in a school context in no provision has been added regarding Regarding the concern that a child’s accordance with a child’s IEP. However, the responsibilities of contractors, since entitlement to FAPE not be construed as if a public agency is billing a State the noneducational public agency, not relieving a Medicaid provider or other Medicaid agency or other public the contractor, is the party to the public insurer of its responsibility to insurance program for services provided agreement. pay for required services under these under this part, the public agency must No enforcement mechanism has been regulations, § 300.601 implements the ensure that the services and the specified in these regulations. Under statutory provision at section 612(e) of personnel providing those services meet paragraph (a) of this section, the SEA the Act, which provides that Part B does applicable requirements under statute, must develop a mechanism for resolving not permit a State to reduce medical or regulation or policy applying to that disputes between respective agencies other assistance or to alter eligibility other program. regarding financial responsibility for under Titles V and XIX of the Social Similarly, if the IEP team determines required services, and must ensure that Security Act with respect to the that a child needs to receive a particular all services needed to ensure the provision of FAPE for children with service at home in order to receive provision of FAPE are provided, disabilities in the State. Section FAPE, that service would not be including during the pendency of any 612(a)(12) of the Act, which is disqualified from Medicaid interagency dispute. implemented by § 300.142, reinforces reimbursement under the terms of these Because a mechanism for interagency this important principle. This new regulations, and States must address coordination is a condition of eligibility statutory provision emphasizes the such concerns in the context of their for assistance under Part B, a State that obligation for interagency coordination interagency agreements under the terms fails to develop an effective mechanism between educational and of paragraph (a) of this section. for resolving interagency disputes and noneducational public agencies to In response to numerous comments ensuring the provision of required ensure that all services necessary to requesting clarification on the issue of services during the pendency of such ensure FAPE are provided to children timely delivery of services paid for by disputes could jeopardize its continued with disabilities, and that the financial noneducational public agencies, it is eligibility for IDEA funding. responsibility of the State Medicaid particularly important to ensure that agency or other public insurer shall there are no undue delays in the Further, under section 613(a)(1) of the precede that of the LEA or State agency provision of required services due to the Act, in order for an LEA to be eligible responsible for developing the child’s failure of a noneducational public for Part B funds from the State for any IEP. agency to reimburse the educational fiscal year, the LEA must have in effect However, there is nothing in this public agency for required services for policies, procedures, and programs that provision that alters who is eligible for, which the noneducational public are consistent with the State policies or covered services under Medicaid or agency is responsible. Such delays and procedures established under other public insurance programs. could effectively nullify the section 612 of the Act. This would Therefore, the regulations should make requirements for interagency include the requirement in section clear that the coverage of or service coordination in section 612(a)(12) of the 612(a)(12) relating to methods of requirements for Title XIX or Title XXI Act. ensuring services. of the Social Security Act as defined in Although paragraph (a)(4) of this Changes: Section 300.142 has been Federal statute, regulation or policy or section already includes a requirement amended by adding language to the coverage of or service requirements that agencies have procedures that paragraph (b)(1) to specify that a for any other public insurance program promote the coordination, timely, and noneducational public agency may not are not affected by the IDEA regulation. appropriate delivery of services under disqualify an eligible service for With regard to the concern that these regulations, in response to Medicaid reimbursement because that services paid for with Medicaid funds concerns of commenters, the concept service is provided in an educational must be provided in the LRE, and, if from the language in the Senate and context. Paragraph (b)(2) has been appropriate, at home, payment for House Committee Reports on Pub. L. amended to indicate that services must services cannot be conditioned solely on 105–17, which is restated in Note 1 to be provided in a timely manner, by the the setting in which necessary services this section of the NPRM, is important LEA (or State agency responsible for are provided. Regardless of whether to clarify understanding of these final developing the child’s IEP). Note 1 to services are paid for with Part B or with regulations. Paragraph (b)(2) of this this section of the NPRM has been Medicaid funds, all special educational section should be revised to clarify that removed. A new paragraph (i) has been services for children with disabilities the provision of services under this added to this section to clarify that under Part B must be individually- section must be provided in a timely nothing in this part should be construed determined and provided in the least manner. to alter the requirements imposed on a restrictive setting in which the disabled No specific timelines have been State Medicaid agency, or any other child’s IEP can be implemented. included in these regulations. However, agency administering a public insurance In response to the suggestions of States are required to take the necessary program under Federal statute, commenters, the concept explained in steps to enter into appropriate regulations or policy for Title XIX or

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00162 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12567

Title XXI of the Social Security Act, or that apply to that program, in addition incur a financial cost, must be voluntary any other public insurance program. to conforming with the requirements of on the part of the parent. Comment: Commenters recommended this part. Once determinations about In light of the concerns of numerous that a statement be added to personnel qualifications have been commenters that the use of private § 300.142(a)(4) to specify that services made, Part B does not govern the insurance always involves a current or financed as a result of interagency manner in which necessary personnel future financial cost to the parents, and coordination are to supplement, not are selected to meet instructional needs the Department’s experience in supplant, services provided by the LEA. under these regulations. administering Part B, the regulations Other commenters asked that Changes: None. regarding use of private insurance § 300.142(a)(4) be amended to specify Comment: Commenters recommended should be revised. As numerous that school-employed personnel must be clarification to specify that all services commenters have indicated, parents the first resource for providing related must be free from direct and indirect who permit use of their private services. In addition, commenters also costs to parents. A principal concern of insurance often experience recommended that clarification be commenters was that even in unanticipated financial consequences. added to specify that the use of contract circumstances where it is highly These parents often act without full personnel or other arrangements should probable that future financial costs will knowledge of the future impact of their not supersede or supplant the use of result, parents feel constrained to permit decision. Public agencies should be school based personnel, with very public agencies to access their insurance permitted to access a parent’s private limited exceptions. because of the fear of losing necessary insurance proceeds only if the parent Discussion: The requirement in services for their disabled children. provides informed consent to use. section 612(a)(12)(A) of the Act, also Many commenters believe that there Consistent with the definition of reflected in paragraph (a)(1) of this is always a cost associated with using ‘‘consent’’ in these regulations, such section (which specifies that the private insurance, i.e., exhaustion of consent must fully inform parents that financial responsibility of the State lifetime caps, decreased benefits, they could incur financial consequences Medicaid agency or other public insurer increased co-pays and costs, risk of from the use of their private insurance of children with disabilities must future uninsurability with another to pay for services that the school precede that of the LEA or State agency insurance carrier, and possible district is required to provide under the responsible for the provision of FAPE) termination of health insurance. These IDEA, such as surpassing a cap on should not be construed to mean that commenters recommended that a new benefits, which could leave them Medicaid-funded services are paragraph be added to this section, uninsured for subsequent services, and supplemental to the basic services which would require public agencies to that the parents should check with their provided under these regulations. inform parents that voluntary use of private insurance provider so that they Regardless of the source of payment, the their private insurance could entail understand the foreseeable future public agency responsible for educating these risks, that parents have no financial costs to themselves before they the disabled child still must ensure that obligation to permit access to their give consent. This consent should be the child receives all required services insurance payments, and have the right obtained each time a public agency at no cost to the parents. Therefore, if to say no. These commenters also attempts to access private insurance, Medicaid funds only a portion of recommended that Note 2 to this section and be voluntary on the part of the required services based on service caps, of the NPRM be deleted. parents. the public agency responsible for the Some commenters also objected that In addition, parents need to be provision of FAPE must ensure that any § 300.142(e) does not support the informed that their refusal to permit a remaining necessary services are concept of obtaining parental public agency to access their private provided at no cost to the parents. permission for use of public insurance, insurance does not relieve the public However, a public agency may not make and recommended that the regulation agency of its responsibility to ensure decisions regarding the provision of specify that parents must give informed that all required services are provided at required services to children with consent to use of their public or private no cost to the parents. However, the disabilities under these regulations insurance which (1) must be voluntary suggestion of commenters that parents based solely on availability of Medicaid on the part of parents, (2) renewed at be informed that they have the right to funding. To the contrary, if a public least annually, (3) can be revoked at any refuse use of their private insurance agency determines that particular time, and (4) must include a written because of future risks of financial services are necessary to ensure the description of ‘‘potential financial consequences has not been adopted provision of FAPE to children with costs’’ associated with using their because it is unnecessary, in light of the disabilities, those services must be insurance. Other commenters agreed new requirement that public agencies provided at no cost to the parents, with proposed paragraph (e)(1) and Note obtain parental consent to use a parent’s regardless of whether Medicaid funds 2 and urged that they be retained in the private insurance. the service. final regulations. Changes: A new paragraph (f) has No clarification has been provided Discussion: Proposed paragraph (e)(1) been added to clarify the circumstances regarding selection of personnel to of this section of the NPRM under which public agencies may access provide required services under these incorporated the interpretation of the parent’s private insurance to pay for regulations. In ensuring the provision of requirements of Part B and Section 504 required services under these FAPE, public agencies may use any contained in the Notice of Interpretation regulations. Note 2 to this section of the personnel that meet applicable State (Notice) on use of parents’ insurance NPRM has been removed. standards in accordance with §§ 300.136 proceeds, published on December 30, Comment: The majority of and 300.23 of these regulations. 1980 (45 FR 86390). Under the commenters urged regulations on the However, as noted above, if a public interpretation in the Notice, public use of public insurance that would insurance program is billed for services agencies may not access private parallel those governing use of private provided under this part, those services insurance if parents would incur a insurance. Commenters recommended must meet the requirements of that financial cost, and use of parent’s that regulations clarify that the same program, including personnel standards insurance proceeds, if parents would protections available to parents when

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00163 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12568 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations public agencies access private insurance applies to children with disabilities who these regulations do not affect the are available to parents when public have public insurance. In both instances requirement under Medicaid that the agencies access public insurance. These services under Part B must be at no cost State Medicaid agency pursue liable commenters also disagreed with the to parents. In view of the comments third party payers such as private statement on page 55036 of the received, it appears that the statement insurance providers, for the reportedly preamble to the NPRM that suggested contained on page 55036 of the relatively small number of children and that regulation on this issue was not preamble to the NPRM, which indicates families who are covered by both necessary because there is no financial that there is no risk of financial cost to private and public insurance, under loss to parents under current public parents if public agencies use Medicaid IDEA parents may not be required to assistance programs such as Medicaid. or other Federal, State or local public assume costs incurred through use of Examples of financial costs cited by insurance programs, is not entirely private insurance so that the school can commenters resulting from Medicaid accurate. get reimbursement from the public use were (1) limitation or decrease in While it is essential that public insurer for services in the child’s IEP. public insurance benefits available to agencies have the ability to access all Under IDEA, if a Medicaid-enrolled children with disabilities and their available public sources of support to child also is covered by private families for non-school needs; (2) a pay for required services under these insurance, the public agency must requirement that private insurance regulations, services must be provided choose one of two options—either initially be used before Medicaid funds at no cost to parents. However, in the obtain the parent’s consent to use the are made available; (3) limitations on majority of cases, use of Federal, State private insurance, or not use Medicaid amounts of services that can be or local public insurance programs by a to provide the service. One way a public reimbursed with Medicaid funds; and public educational agency to provide or agency might be able to obtain that (4) premiums or co-pays resulting from pay for a service to a child will not consent would be to offer to cover the use of Medicaid funding. result in a current or foreseeable future costs that would normally, under Commenters also requested that the cost to the family or child. For example, Medicaid, be assessed against the definition of ‘‘financial cost’’ be under the Early Periodic Screening, private insurer. Similarly, if under expanded to include costs such as a risk Diagnosis and Treatment (EPSDT) Medicaid a parent or family normally of losing eligibility for home and program of Medicaid, potentially would incur an out-of-pocket expense community-based waivers based upon available benefits are only limited based such as a co-pay or deductible, a public aggregate health-related expenditure, on what the Medicaid agency agency may not require parents to incur and costs associated with Medicaid buy- determines to be medically necessary that cost in order for their child to ins. These commenters also for the child and are not otherwise receive services required under the recommended that the regulations limited or capped. Currently, IDEA. In such a case, again, the public clarify that parental consent must be approximately 90 percent of the school- agency must choose one of two obtained before a public agency can aged children who are eligible for public options—either cover the out-of-pocket access Medicaid or other public insurance programs are eligible for expense so that the parent does not insurance benefits available to the services under the EPSDT program. incur a cost, or not use Medicaid to parent. Where there is no cost to the family or provide the service. The regulations Some commenters urged the the child, public educational agencies elimination of definitions or terms not should make clear that a public agency are encouraged to use the public is able to use Part B funds to pay the included in the statute, such as the insurance benefits to the extent cost that under Medicaid requirements definition of financial cost. Other possible. It also should be noted that a would otherwise be covered by a third commenters recommended that changes public educational agency is required to party payer. not be made and agreed with the provide a service that is needed by a statement in the preamble to the NPRM child and has been included on his or Public insurance limits of the that there is no financial cost to parents her IEP but that is not considered amounts of services that will be covered who access Medicaid or other public medically necessary under EPSDT or based on the public insurer’s insurance benefits. These commenters other public insurance program. As is determination of what is medically believed that the regulation should state the case for any other service required necessary for the child are not that parental permission need not be by a child’s IEP, if a service on a child’s prohibited by Part B. However, a public obtained before accessing public IEP is provided by a public insurance educational agency’s use of a child’s insurance. Some of these commenters program at a site that is separate from benefits under a public insurance also recommended further observation the child’s school, the public program should not result in the family and study of current State practices to educational agency is responsible for having to pay for services that are ensure that the regulations do not have ensuring that the transportation is at no required for the child outside of the an adverse impact on currently existing cost to the child or family. school day and that could be covered by and effective financial systems. These There are some situations, however, the public insurance program. For commenters also recommended that should be addressed by the example, if a public insurer were to additional guidance to allow States regulation to ensure that use of public determine that eight hours of nursing maximum flexibility to utilize all insurance does not result to a cost to the services were medically necessary for a available resources. child or family. In some public child whose medical devices needed Some commenters recommended that insurance programs, families are constant trained supervision, a school Note 3 be retained as a note or that required to pay premiums or co-pay district’s use of six of those hours pertinent portions be incorporated into amounts in order to be covered by or during the school day would mean that the regulation, while others requested use the public insurance. Parents of family would have to assume the that Note 3 be deleted. children with disabilities under Part B financial responsibility for those Discussion: As numerous commenters should not be required to assume those services throughout the night. In such a pointed out, the statutory basis of the costs so that a school district can use the case, the family would be incurring a 1980 Notice of Interpretation governing child’s public insurance to cover cost due to the school district’s use of use of private insurance proceeds also services required under Part B. While the public insurance benefit. Risk of loss

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00164 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12569 of eligibility for home and community- unlike the rule related to private public agency is not required to return based waivers, based in aggregate insurance, Part B would not require the those funds to the Department or to health-related expenditures could also public agency to obtain parent consent dedicate those funds for use in the Part constitute a cost to a family for those each time it uses the public insurance. B program, which is how program few children with very extensive health Under the terms of the public insurance income must be used, although a public related needs. program, consent may be required agency retains the option of using those A public agency may not require a before a public educational agency may funds in this program if it chooses to do parent to sign up for Medicaid or other use a child or family’s public insurance so. Reimbursements are similar to public insurance benefits as a condition benefits. refunds, credits, and discounts which for the child’s receipt of FAPE under In light of the importance of the issues are specifically excluded from program Part B. A child’s entitlement to FAPE addressed in Note 3 to this section of income in 34 CFR 80.25(a). under Part B exists whether or not a the NPRM, Note 3 should be removed as In addition, the regulations should parent refuses to consent to the use of a note, and a new paragraph (g), clarify that funds expended by a public their Medicaid or public insurance regarding use of Part B funds, should be agency from reimbursements of Federal benefits or is unwilling to sign up for added to this regulation. This paragraph funds will not be considered State or Medicaid or other public insurance would permit use of Part B funds for (1) local funds for purposes of §§ 300.154 benefits. Children with disabilities are the cost of those required services under and 300.231. If Federal reimbursements entitled to services under Part B, these regulations, if parents refuse were considered State and local funds regardless of parents’ personal choices consent to use public or private for purposes of the maintenance of effort to access Medicaid or other public insurance; and (2) the costs of accessing provisions in §§ 300.154 and 300.231 of insurance benefits. parent’s insurance, such as paying these regulations, SEAs and LEAs Although section 612(a)(12) of the Act deductible or co-pay amounts. would experience an artificial increase makes clear States’ obligations to ensure Changes: Paragraph (e) has been in their base year amounts and would that available public sources of support amended to address circumstances then be required to maintain a higher, precede responsibilities of public under which a public agency can access overstated level of fiscal effort in the agencies under these regulations, a parent’s Medicaid or other public succeeding fiscal year. Medicaid or other public insurance insurance benefits to pay for required Changes: Section 300.142(f) has been benefits cannot be considered available services under these regulations. The redesignated as § 300.142(h) and revised public sources of support when parents definition of financial costs in the to clarify that (1) A public agency that decline to access those public benefits. NPRM has been deleted. Note 3 to this receives proceeds from public or private However, there is nothing in these section of the NPRM has been removed, insurance for services under these regulations that would prohibit a public and the substance of Note 3 has been regulations is not required to return agency from requesting that a parent incorporated into a new paragraph (g) of those funds to the Department or to sign up for Medicaid or other public this section. dedicate those funds to this program insurance benefits. Furthermore, a Comment: Several commenters were because they will not be treated as public agency would not be precluded concerned that § 300.142(f) of the NPRM program income under 34 CFR 80.25; from using a child’s public insurance, makes it permissible for public agencies and (2) funds expended by a public even if parents incur a financial cost, so not to use funds reimbursed from agency from reimbursements of Federal long as the public agency’s use of a another agency to provide special funds will not be considered State or child’s public insurance is voluntary on education and related services to local funds for purposes of §§ 300.154 the part of the parent. children with disabilities. Suggestions and 300.231 of these regulations. Note 4 In order to ensure that children with made by commenters were that this to this section of the NPRM has been disabilities are afforded a free paragraph either be deleted or changed removed. appropriate public education at no cost to require that these reimbursed funds to their parents, the regulation should must be used in this program. Recovery of Funds for Misclassified be amended to address children with Commenters recommended that Note Children (§ 300.145) disabilities who are covered by public 4 be deleted since it gives public Comment: Some commenters insurance by specifying that a public agencies the option of dedicating these requested that the regulation be revised agency may use Medicaid or other funds to the Part B program only if they to provide a State the opportunity for a public insurance benefits programs in choose to do so. These commenters hearing before a student is declared which a child participates with certain believe that this change is necessary for ineligible for Part B funding. exceptions. Those exceptions would be this regulation to be consistent with the Discussion: Section 300.145 requires that a public agency may not require purpose of section 612(a)(12) of the Act, that each State have on file with the parents to sign up for public insurance which places financial responsibility for Secretary policies and procedures that in order for their child to receive FAPE the provision of special education and ensure that the State seeks to recover under Part B of the Act; require parents related services on agencies other than any funds it provided to a public agency to incur out-of-pocket expenses related schools. Other commenters under Part B of the Act for services to to filing a public insurance claim for recommended that Note 4 be deleted a child who is determined to be Part B services; and may not use the because it is redundant of § 300.3, erroneously classified as eligible to be public insurance if the use would which provides that the regulations in counted under section 611(a) or (d) of decrease coverage or benefits, increase 34 CFR part 80 apply to this program. the Act. There is no need to revise the premiums, lead to discontinuation of Discussion: In response to concerns of regulation to provide for administrative insurance, result in the family paying commenters, Note 4 should be removed, review of a decision by this Department for services that otherwise would be but pertinent portions of Note 4 should that Part B funds should be recovered covered by the public insurance and be incorporated into the text of the final from a State because of an erroneous that are required by the child outside of regulations. This section should clarify child count. The Department uses the the time the child is in school, or risk that, if a public agency receives funds administrative appeal procedures set loss of eligibility for home and from public or private insurance for out at 34 CFR Part 81 in recovering community-based waivers. However, services under these regulations, the funds because of an erroneous child

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00165 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12570 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations count for cases where the Department is (§ 300.382(f)). Further guidance is not and referred the reader to 34 CFR attempting to recover grant funds, needed. § 76.702 in EDGAR, regarding Fiscal including Part B funds. Changes: None. control and fund accounting Changes: None. Public Participation (§ 300.148) procedures. Because this information provides useful guidance to States, it Suspension and Expulsion Rates Comment: None. should be incorporated into the (§ 300.146) Discussion: Section 300.148 requires regulations. Comment: Some commenters each State to ensure that, prior to the Changes: The substance of the note is requested the regulation be revised to adoption of any policies and procedures incorporated into the text of the permit States to use sampling needed to comply with this part, there regulation. procedures to obtain the data that they are public hearings, adequate notice of the hearings, and an opportunity for Maintenance of State Financial Support will examine pursuant to § 300.146(a). (§ 300.154) Discussion: Obtaining complete and comment available to the general public, accurate data on suspension and including individuals with disabilities Comment: None. expulsion is too critical to be collected and parents of children with disabilities Discussion: States should be able to on a sampling basis. consistent with §§ 300.280–300.284. demonstrate that they have not reduced In the past, a number of States have Changes: None. the amount of State financial support for indicated that certain State special Comment: Some commenters special education and related services education policies that are also required requested that § 300.146(b) be revised to for children with disabilities, whether under this part had previously been require that a State review and if made directly available for those subjected to public review and comment appropriate revise its comprehensive services or otherwise made available in under the State’s own public system of personnel development, if the recognition of the excess costs of participation process, and the States State finds that significant discrepancies educating children with disabilities on have expressed concern about having to are occurring in the rate of long-term either a total or per child basis. A repeat the process for those policies suspensions and expulsions of children number of States, for example, have under §§ 300.280–300.284. State funding formulas that are based on with disabilities among LEAs in the The need for an effective public State or compared to the rates for enrollment which could result in a participation process is critical to the decrease in the total amount of State nondisabled children within LEAs. adoption and implementation of Discussion: Section 300.146(b) financial support if enrollment declines. policies and procedures that comply Changes: Paragraph (a) of this section requires that, if an SEA finds that with the requirements under this part. has been revised to clarify that either a significant discrepancies are occurring However, if a State, in adopting State total or per child level of State financial in the rate of long-term suspensions and special education policies had support is acceptable. expulsions of children with disabilities previously submitted those policies among LEAs in the State or compared to through a public participation process Annual Description of Use of Part B the rates for nondisabled children that is comparable to and consistent Funds (§ 300.156) within LEAs, the SEA must, if with the requirements of §§ 300.280– Comment: Some commenters appropriate, revise (or require the 300.284, it would be unnecessary and requested that the regulation be made affected State agency or LEA to revise) burdensome to require the State to consistent with the statutory provision its policies, procedures, and practices repeat the process. at section 611(f)(5) of the Act by relating to the development and Therefore, a provision would be deleting § 300.156(b). implementation of IEPs, the use of added to § 300.148 to clarify that a State Discussion: It is reasonable and behavioral interventions, and will be considered to be in compliance appropriate to permit a State, if the procedural safeguards, to ensure that with this provision if the State has information which it would submit these policies, procedures, and practices subjected the policy or procedure to a pursuant to § 300.156(a) for a given comply with the Act. public review and comment process that fiscal year is the same as the Among the policies that a State would is required by the State for other information that it submitted for the review and if necessary revise are its purposes and that State public prior fiscal year, to submit a letter to CSPD policies and procedures related to participation process with respect to that effect rather than resubmitting ensuring that personnel are adequately factors such as the number of public information that it has previously prepared to meet their responsibilities hearings, content of the notice of submitted. under the Act. Further, § 300.382 hearings, and length of the comment Changes: None. specifically requires each State to period, is comparable to and consistent Excess Cost Requirement (§ 300.184) develop strategies to ensure that all with the requirements of §§ 300.280– personnel who work with children with 300.284. Comment: Some commenters asked disabilities (including both professional Changes: Section 300.148 has been that the regulation be revised to require and paraprofessional personnel who amended to include the provision regular financial audits to ensure provide special education, general described in the above discussion. compliance with the excess cost education, related services, or early requirements. intervention services) have the skills Prohibition Against Commingling Discussion: Each SEA, as part of its and knowledge necessary to meet the (§ 300.152) general supervision responsibility under needs of children with disabilities; and Comment: None. § 300.600, must ensure that LEAs these strategies must include how the Discussion: The proposed note comply with all requirements of Part B, State will ‘‘* * * enhance the ability of clarified that the assurance required by including the requirements of § 300.184 teachers and others to use strategies, § 300.152 is satisfied by the use of a regarding excess cost. Each SEA may such as behavioral interventions, to separate accounting system that meet this requirement through a variety address the conduct of children with includes an audit trail of the of methods, including monitoring and disabilities that impedes the learning of expenditure of the Part B funds and that financial audits. children with disabilities and others’’ separate bank accounts are not required, Changes: None.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00166 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12571

Meeting the Excess Cost Requirement make findings regarding the extent to Discussion: The statutory LEA-level (§ 300.185) which the agency is in compliance. maintenance of effort provision requires Comment: None. Other commenters requested that that LEAs do not use the funds they are Discussion: The proposed note § 300.197(a) be revised to reduce or awarded under the IDEA to reduce the clarified the Department’s longstanding cease to provide further payments under level of expenditures that they make from local funds below the level of position that: (1) The excess cost Part B to an LEA or State agency if SEA those expenditures for the preceding requirement means that the LEA must finds that the agency is engaging in a year (except as provided in §§ 300.232 spend a certain minimum amount for pattern of noncompliance or has failed and 300.233). The statutory provision the education of its children with promptly to remedy any individual replaces a prior regulatory provision disabilities before Part B funds are used, instance of noncompliance. that had required LEAs to maintain the ensuring that children served with Part Section 300.197(c) requires that an same total or per capita expenditures B funds have at least the same average SEA consider any decision resulting from State and local funds as in prior amount spent on them, from sources from a hearing under §§ 300.507– years, which was viewed as financially other than Part B, as do the children in 300.528 that is adverse to the LEA or burdensome by LEAs when they were the school district in elementary or State agency involved in the decision in carrying out its functions under required, because of this prior secondary school as the case may be; (2) regulatory provision, to replace out of excess costs are those costs of special § 300.197. Some commenters requested that the regulation be revised to require local funds any amount by which a education and related services that State reduced the amount of State funds exceed the minimum amount; (3) if an that the SEA also consider adverse decisions on complaints filed under going to an LEA. LEA can show that it has (on the Therefore, in recognition of this average) spent the minimum amount for §§ 300.660–300.662. Discussion: Each SEA, as part of its change, the regulation would allow a the education of each of its children comparison of local funding in the grant with disabilities, it has met the excess general supervision responsibility under § 300.600, must ensure that all public year to local funding in a prior year. If cost requirement, and all additional a State assumes more responsibility for costs are excess costs; and (4) Part B agencies meet the educational standards of the SEA, including the requirements funding these services, such as when a funds can then be used to pay for these State increases the State share of of Part B; and the General Education additional costs. However, several funding for special education to reduce Provisions Act requires that each SEA commenters requested that the the fiscal burden on local government, use effective monitoring methods to substance of all Notes be incorporated an LEA may not need to continue to put identify and correct noncompliance into the text of the regulations or the the same amount of local funds toward with Part B requirements. In Notes deleted. expenditures for special education and implementing this requirement, each Changes: The note has been deleted. related services in order to demonstrate SEA must determine: (1) the frequency that it is not using IDEA funds to Requirements for Establishing Eligibility with which it must monitor each of the replace prior expenditures from local (§ 300.192) public agencies in the State in order to funds. Comment: Section 300.192(c) requires ensure compliance; and (2) whether a On the other hand, an LEA should not that, ‘‘Notwithstanding any other single act or pattern of noncompliance be able to replace local funds with State provision of §§ 300.190–300.192, an demonstrates substantial funds when the combination of local educational service agency shall provide noncompliance necessitating the SEA to and State funding is not at least equal for the education of children with pursue financial sanctions. to a base amount from the same sources, disabilities in the least restrictive Unlike hearings that are resolved by as this would result in reductions in environment, as required by § 300.130.’’ impartial due process hearing officers expenditures not contemplated by the Some commenters requested that the who are not SEA employees, all statute. Since those Federal funds for regulation be revised to emphasize the complaints under the State complaint which accountability is not required to appropriateness of children’s procedures alleging a violation of Part B a Federal or State agency are expended educational programs as strongly as are resolved directly by the SEA, which at the discretion of an LEA, they may be placement in the least restrictive must also ensure correction of any included in computations of local funds environment. violations it identifies in response to budgeted and expended for special Discussion: Section 300.192(c) such complaints. Therefore, the SEA education and related services for clarifies that notwithstanding whether will, as part of its general supervision children with disabilities. an LEA establishes Part B eligibility as responsibilities, consider any adverse In determining whether an LEA could a single LEA or jointly with other LEAs, complaint decisions in meeting its receive a subgrant in any year, an SEA it must ensure compliance with the LRE responsibilities under § 300.197, and the should compare the amount of funds requirements of the Act. This provision requested revision is not necessary. from appropriate sources budgeted for does not in any way diminish an LEA’s Changes: None. the grant year to the amount actually expended from those sources in the responsibility to ensure that FAPE is Maintenance of Effort (§ 300.231) made available to all eligible children most recent fiscal year for which data with disabilities. Comment: Some commenters are available. Reductions in the amount Changes: None. expressed concern that the provision on budgeted would be permissible for the local maintenance of effort (MOE) conditions described in §§ 300.232 and LEA and State Agency Compliance would mean that even in years when 300.233, if applicable. An LEA that did (§ 300.197) State legislatures increased State not expend in a grant year from those Comment: Some commenters appropriations to offset financial sources at least as much as it had in the requested that the regulations be revised expenditures of LEAs, those funds could year on which the maintenance of effort to require that each SEA conduct not be included in making comparison for that year is based, would sufficient monitoring activities in each determinations as to whether the be liable in an audit for repayment of LEA and State agency, at least once maintenance of effort provision had the amount by which it failed to expend every three years, to enable the SEA to been met. to equal the prior year’s expenditures,

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00167 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12572 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations up to the total amount of the LEA’s to specify that an LEA may reduce its related services in accordance with grant. expenditures from one year to the next properly developed IEPs and must still Changes: A new paragraph has been if the reduction is attributable to the be afforded all the rights and services added to clarify the maintenance of termination of the LEA’s obligation to guaranteed under the IDEA. effort provision. provide a program of special education The use of IDEA funds in a school- wide program does not change the Exception to Maintenance of effort to a child with a disability that is an LEA’s obligation to meet the (§ 300.232) exceptionally costly program, as determined by the SEA, because the maintenance of effort requirement in Comment: Some commenters child no longer needs the program of § 300.231. requested that the regulation be revised special education, as determined in Consistent with the general decision to specifically require that lower- accordance with the IEP requirements at regarding the disposition of notes, the salaried staff who replace special §§ 300.346 and 300.347. note following § 300.234 would be education and related services Discussion: Because any change in the removed. However, the note includes personnel, who depart voluntarily or for special education and related services important guidance related to ensuring just cause, meet entry-level academic provided to a child with a disability that children with disabilities in degree requirements that are based on must be made in accordance with the schoolwide program schools still the highest requirements in the State for IEP requirements, the requested revision receive services in accordance with a the relevant profession or discipline. is not necessary. The circumstances properly developed IEP, and still be Other commenters requested retention under which an LEA may reduce effort afforded all of the rights and services of the provision in § 300.233(a) that an because it no longer needs to provide an guaranteed to children with disabilities LEA may reduce its expenditures from exceptionally costly program are under the IDEA. Therefore, this one year to the next if the reduction is addressed by the regulations at guidance should be added to the text of attributable to the voluntary departure, § 300.232(c). the regulation as a specific provision. by retirement or otherwise, or departure Changes: None. It should be pointed out that the use for just cause, of special education or Comment: Some commenters of funds under Part B of the Act in related services personnel, but that the requested that the regulation be revised accordance with § 300.234 is beneficial language specifying that these personnel to require an LEA to submit to the SEA to children with disabilities, and, must be replaced by qualified, lower- an assurance that all students with contrary to informal concerns that have salaried staff and the note following this disabilities in the LEA are receiving a been raised, the use of the Part B funds regulation be deleted. free appropriate public education, in schoolwide programs does not Discussion: The requirements of before the LEA would be permitted to deplete resources for children with § 300.136 regarding personnel standards reduce its expenditures. disabilities. Rather, it helps to ensure apply to personnel who replace special Discussion: As part of its general effective inclusion of those children into education and related services supervision responsibility under the regular education environment with personnel, who depart voluntarily or for § 300.600, each SEA is required to nondisabled children. just cause. It is important to make clear ensure that all public agencies in the Changes: Paragraphs (b), (c), and (d) in the regulation that all staff providing State are complying with the have been reorganized as paragraph (b) special education and related services requirement that they make FAPE and (c) and revised to include the must be qualified. available to all eligible children in their substance of the note. The note has been The Senate and House committee respective jurisdictions. Therefore, the deleted. reports on Pub. L. 105–17, with respect requested revision is not necessary. Permissive Use of Funds (§ 300.235) to the voluntary departure of special Changes: None. education personnel described in Comment: Some commenters § 300.232(a), clarify that the intended Schoolwide Programs Under Title 1 of requested clarification as to whether focus of this exception is on special the ESEA (§ 300.234) LEAs are still required to maintain education personnel who are paid at or Comment: A commenter requested ‘‘time and effort’’ or other records to near the top of the salary schedule, and that, in § 300.234(b), the reference to document that Part B funds have been sets out guidelines under which this § 300.230(a) be changed to also include expended only on allowable costs. exception may be invoked by an LEA. § 300.230(b) or § 300.231(a). Another Other commenters expressed their These guidelines (which provide that commenter asked if an LEA can use its concern that, with no limitation on the the agency must ensure that such State and local special education funds number of children who do not have voluntary retirement or resignation and in a schoolwide program without disabilities who may benefit from replacement are in full conformity with accounting for expenditures of those special education and related services, existing school board policies in the funds for special education and related the needs of children with disabilities agency, with the applicable collective services, and added that if such use is will not be met. Some commenters bargaining agreement in effect at that allowable, could the State and local asked that the regulation be revised to time, and with applicable State statutes) funds be considered in the LEA’s require regular financial audits to are important in the implementation of maintenance of effort calculation. ensure compliance with the excess cost this section and, therefore, should be Discussion: The reference in § 300.234 requirements. added to the regulation. (S. Rep. No. to § 300.230(a) in the NPRM should be Discussion: Section § 300.235 sets 105–17, p. 16, H. R. Rep. No. 105–95, p. changed to § 300.230(b). If Part B funds forth circumstances under which an 96 (1997)). are used in accordance with § 300.234, LEA may use Part B funds to pay for the Changes: Paragraph (a) has been the funds would not be limited to the costs of special education and related amended to include the substance of the provision of special education and services and supplementary aids and note, consistent with the above related services. They could also be services provided in a regular class or discussion, and the note has been used for other school-wide program other education-related setting to a child removed. activities. However, children with with a disability and to develop and Comment: Some commenters disabilities in school-wide programs implement a fully integrated and requested that § 300.232(c)(3) be revised must still receive special education and coordinated services system; this

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00168 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12573 section does not impact the Subpart C § 300.301(a) related to using whatever documentation requirements where an State, local, or private sources of Provision of FAPE (§ 300.300) LEA uses a particular individual to support be replaced by providing that a provide special education or related Comment: Some commenters State may use all of its State funds to services during one portion of the day expressed support for a seamless system ensure FAPE. Some commenters or week and to perform other functions of services for disabled children from requested that a new paragraph (c) be at other times for which the LEA cannot birth through age 21, and recommended added to clarify that there can be no pay using Part B funds. that Note 3 under § 300.300 be added to delay in the provision of FAPE while Although § 300.235 makes clear that the regulation to highlight the need for the SEA determines the payment source Part B does not prohibit benefit to States to plan their child find and other for IEP services. nondisabled children, it does not permit activities to meet the age range for Discussion: Section 300.301 is a long- Part B funds to be expended in a regular FAPE. A few commenters stated their standing provision that was included, class except for special education and understanding that the exemption to the without change, in the NPRM. The related services and supplementary aids ‘‘50% rule’’ in § 300.300 (related to section merely clarifies that each State and services to a child with a disability FAPE for disabled children aged 3 may use other sources of support for in accordance with the child’s IEP. If through 5 in States receiving a meeting the requirements of this part, in special education and related services Preschool grant) was temporary, and addition to State education funds or Part are being provided to meet the asked if the exemption would continue B funds. in effect. requirements of the IEP for a child with It would be appropriate to add a new Discussion: In light of the previous a disability, this provision permits other paragraph to § 300.301 to clarify that children to benefit, and in such discussion regarding the disposition of notes under this part (see ‘‘General there can be no delay in implementing circumstances no time and effort a child’s IEP in any case in which the records are required under Federal law, Comments’’), Note 3, which provides only clarifying information to explain payment source for providing or paying thus reducing unnecessary paperwork. for special education and related This provision does not in any way why the age range for child find (birth through age 21) is greater than the age services to the child is being diminish an SEA or other public determined. Section 300.142 also agency’s responsibilities under Part B to range for providing FAPE, should be deleted and not moved into the addresses the role of the public agency ensure that FAPE is made available to in ensuring that special education and each eligible child with a disability. regulation. Further, Note 1 (FAPE applies to children in school and those related services are provided if a Each SEA must, as part of its general noneducational agency fails to meet its supervision responsibility under with less severe disabilities) is no longer relevant as the statute now is commonly responsibility and specifies that services § 300.600, ensure compliance with the must be provided in a timely manner, requirements of § 300.235; the methods understood to apply to all children with disabilities, not just those out of school while the payment source for services is that the SEA uses to ensure compliance being determined. Further, because may include monitoring and financial or with severe disabilities, and should be deleted. The substance of Note 2 §§ 300.342 and 300.343 also address the audits of LEAs. Under the Single State timely development and Audit Act, SEAs are required to ensure (importance of child find to the FAPE requirement) should be incorporated implementation of a child’s IEP, it is that periodic audits are conducted, and appropriate to include a reference to the General Education Provisions Act into the text of the regulation at § 300.300(a)(2) because of the crucial those sections in § 300.301. requires periodic monitoring. Changes: A new paragraph (c) has Changes: None. role that an effective child find system plays as part of a State’s obligation of been added to ensure, consistent with Treatment of Charter Schools and Their ensuring that FAPE is available all the above discussion, that there is no Students (§ 300.241) children with disabilities. delay in providing services while the payment source is being determined. Comment: None. The provision in § 300.300(b)(4) Discussion: The proposed note clarifies that if a State receives a Residential Placement (§ 300.302) clarified that the provisions of this part Preschool Grant under section 619 of the Act, the ‘‘50% rule’’ does not apply Comment: A few commenters that apply to other public schools also requested that the regulations clarify apply to public charter schools, and, with respect to disabled children aged 3 through 5 years, because the State must that costs for residential placements therefore, children with disabilities who include the expenses incurred by attend public charter schools and their ensure that FAPE is available to ‘‘all’’ disabled children in that age range parents’ travel to and from the program parents retain all rights under this part. and the cost of telephone calls to the The Senate and House Committee within the State—as a condition of receiving such a grant. (See §§ 301.10 placement. One commenter stated that Reports on Pub. L. 105–17, which, in the LEA should be responsible for the reference to this provision states: and 301.12) Therefore, this provision should be included, without change, in educational costs if the system cannot The Committee expects that charter these final regulations. meet the needs of the student, and that schools will be in full compliance with Part Changes: The substance of Note 2 has other appropriate related service B. (S. Rep. No. 105–17, p 17, H. R. Rep. No. agencies should assume the cost of care 105–95, p. 97 (1997)) been added as a new paragraph (a)(2). Notes 1—3 have been removed. and treatment. Thus, to ensure the protections of the Discussion: Section 300.302 is a long- rights of children with disabilities and FAPE—Methods and Payment standing provision that applies to their parents, this concept should be (§ 300.301) placements that are made by public incorporated into the regulations. Comment: One commenter stated that agencies in public and private Changes: The substance of the note there is no authority in Federal law to institutions for educational purposes. has been incorporated into the permit a State to use unlimited local The note following this section should discussion under § 300.18, and in the resources to meet the State’s be deleted in light of the general regulations under § 300.312. The note requirement for FAPE, and decision to remove all notes from these has been deleted. recommended that the statement in final regulations.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00169 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12574 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

A statement clarifying that costs for analysis of comments on the definitions term ‘‘include’’ in § 300.13 makes it residential placements include the of assistive technology devices and clear that the list of programs and expenses incurred by parents’ travel to services (see §§ 300.5 and 300.6). services is not exhaustive. Therefore, and from the program and the cost of the note following § 300.305 is Changes: The note following § 300.303 telephone calls to the placement is unnecessary. has been deleted. included in the analysis of comments on Changes: The note following the definition of ‘‘special education’’ Full Educational Opportunity Goal § 300.305 has been deleted. (see § 300.26). The regulations already (§ 300.304) Nonacademic Services (§ 300.306) address the respective responsibilities of Comment: Some commenters the SEA, LEAs, and noneducational expressed support for § 300.304. One Comment: One commenter stated that agencies under this part (see, for commenter stated that SEAs and LEAs this section will require documenting an example, §§ 300.121, 300.142, and should be required to improve the array of non-academic and 300.220). general quality of education in ways extracurricular services and activities, Changes: The note has been deleted. that will benefit the disabled, including and that it should be rephrased so that Proper Functioning of Hearing Aids submitting plans and timetables relating it will not lead to more unnecessary (§ 300.303) to such improvements. Another paperwork. Another commenter commenter recommended updating the requested that the section be amended Comment: Comments received on to clarify that participation in § 300.303 included requests to: (1) note to use ‘‘people first’’ language consistent with the IDEA, as amended extracurricular activities is not a clarify that LEAs cannot ensure proper component of a disabled child’s functioning of hearing aids unless in 1990, and to make reference to program. students report non-working devices, quality education programs. Other Discussion: Section 300.306, as well especially students who are in private or commenters recommended that the note as § 300.553 (‘‘Nonacademic settings’’) out-of-school placements (because it is be deleted. beyond the LEAs’ capability to monitor Discussion: The requirement that are long-standing provisions that were whether devices are working); (2) there be a goal of ensuring full included, without change, in the NPRM. provide that LEAs are not responsible educational opportunity to all children There is no basis for assuming that the for hearing aids damaged by misuse with disabilities predates the FAPE provisions in these sections will result within non-school environments; (3) requirement in Pub L. 94–142. The in any unnecessary or increased revise the section to address other AT IDEA Amendments of 1997 are paperwork. devices; (4) ensure the provision is sufficiently clear to not require an Changes: None. consistently met, using qualified elaboration of the full educational Physical Education (§ 300.307) persons who check aids on a regular opportunity goal. Further, in light of the basis, and (5) delete the note because it general tenor of comments received on Comment: Several commenters reflects 20 year-old appropriations this section, and the comments and requested that the regulations clarify committee report language, and, discussion relating to the disposition of that each public agency is responsible therefore, is no longer relevant. Other notes (see analysis of general for making sure that special physical comments expressed concern that the comments), it is clear that there would education (PE) (including adapted PE) is section adds unnecessary paperwork not be sufficient benefit gained to justify provided by qualified personnel, and and an unfair financial burden. updating or retaining the note. not by classroom teachers, aides, related Discussion: Section 300.303 has been Changes: The note following services personnel, or other unqualified included in the Part B regulations since § 300.304 has been deleted. personnel. One commenter stated that § 300.307(b) should replace ‘‘available they were initially published in 1977. Program Options (§ 300.305) The note following § 300.303, which to nondisabled children’’ with the incorporated language from a House Comment: Some commenters phrase ‘‘to the extent available to all Committee Report on the 1978 expressed support for this section, children.’’ appropriation bill, served as the basis stating that disabled children must have Discussion: Section 300.307(b), which for the requirement in § 300.303. That the same opportunities as their provides that each child with a report referred to a study done at that nondisabled peers. One commenter disability has the opportunity to time that showed that up to one-third of stated that §§ 300.305 and 300.306 go participate in the regular PE program the hearing aids for public school beyond the new statute and are made available to nondisabled children, is children were malfunctioning; and the moot by the provisions about including clear as written, and there is no basis for report stated that the [Department] must students in the regular curriculum as making the change recommended by the ensure that hearing impaired school much as possible. Another commenter commenters. It is not necessary to children are receiving adequate requested that the section be amended amend § 300.307 to state that specially professional assessment, follow-up, and to make it clear that the list of items is designed PE must be provided by services. not exhaustive. qualified personnel because SEAs are Section 300.303 was added to address Discussion: The provisions of already required under § 300.136 to that Congressional directive, and has §§ 300.305 and 300.306 do not go determine what standards must be met been implemented since 1977. The beyond the requirements of Part B of the for all special education and related Department has routinely monitored Act. These are long-standing regulatory services personnel within the State. The § 300.303; and when a violation has provisions that were included, note following § 300.307, which been identified, appropriate corrective unchanged, in the NPRM, and have provided important guidance in the action has been taken. Although it is been reinforced by the IDEA original regulations under this part, is important that § 300.303 be retained in Amendments of 1997, through no longer necessary, in light of the the final regulations, the note is no provisions requiring that children with comments relating to the disposition of longer relevant, and should be deleted. disabilities be included in the general notes. Questions relating to damage of curriculum, and enabling them to meet Changes: The note following hearing aids are addressed in the State standards. The definition of the § 300.307 has been deleted.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00170 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12575

Assistive Technology (300.308) children regardless of what the child’s curriculum or in other areas pertinent to Comment: Some commenters IEP indicates is appropriate for the child’s disability-related needs). Several comments recommended expressed support for § 300.308, stating child. One comment noted that other specific changes to § 300.309, such that disabled students must have the responsibility for providing ESY as the following: (1) Section tools they need to succeed. A few services will be extremely costly and 300.309(a)(2) should be revised to state commenters requested that a note be likely will require large expenditures of that the determination of whether a added to describe what assistive local dollars. Several commenters requested that child needs ESY services, including the technology (AT) devices would be both notes be deleted because Note 1 is type and amount of services, must be available for children with hearing ambiguous and unnecessary since the made by the IEP team and should be impairments, including deafness. One of regulation is sufficiently clear, and Note specified in the child’s IEP; (2) the the commenters requested listing 2 is not appropriate because all children regulation should specify a timeline for specific devices (e.g., captioning, regress in the summer. determining eligibility for ESY services computer software, FM systems, and Numerous comments were received to enable the parents to take appropriate hearing aids). regarding the standards referenced in steps to challenge the denial of services; Discussion: The AT devices for Note 2 that States can establish for use (3) the regulation should clarify whether children with hearing impairments in determining a child’s eligibility for ESY services are limited only to summer identified by the commenters are ESY services. One comment urged the programming or to other breaks in the appropriate AT devices under this part. adoption of a Federal standard and school calendar; and (4) no one factor However, it is not necessary to list such formula for determining unacceptable can be the sole criterion for determining devices in these regulations. Moreover, rates of recoupment. One whether a child receives ESY services. it would be inappropriate to list AT recommendation was that while Note 2 Another comment requested that devices for one disability category should be added to the regulation, it clarification be added to specify that without listing such devices for other should be changed to clarify that the list ESY services must be provided in the disability categories. This position is of factors is not exhaustive. least restrictive environment, and that to consistent with the previously stated Another comment stated that ensure that this occurs, students with position related to including examples ‘‘regression/recoupment’’ is a minimum disabilities may have to receive ESY of AT devices in these regulations (see standard that should be used in services in noneducational settings. analysis of comments under §§ 300.5 determining a child’s eligibility for ESY One comment requested that a note be and 300.6). Some examples of AT services. Other commenters indicated added to clarify that the process for devices include word prediction that regression/recoupment is too determining the length of a preschool software, adapted keyboards, voice narrow a standard, and recommended child’s school year must be recognition and synthesis software, adding to the regulations additional individualized and described in the head pointers, and enlarged print. criteria that courts have used to child’s IEP/IFSP, and added that the Under Section 504 of the determine eligibility (e.g., whether the decision is not necessarily based on Rehabilitation Act of 1973, 34 CFR Part child has emerging skills, the nature or school-aged ESY practices or formulas, 104, and the Title II of the Americans severity of the disability, and special which may be inappropriate for younger with Disabilities Act of 1990, 28 CFR circumstances, such as prolonged children, and that if a child turns three Part 35, local educational agencies are absence or other serious blocks to during the summer, the child should responsible for providing a free learning progress, which in the view of receive ESY services if specified in the appropriate public education to the IEP team could be addressed by ESY IEP or IFSP. qualified students with disabilities who services). Other comments requested that the are within their jurisdiction. To the Another comment recommended that regulations: add a new paragraph (c) to extent that assistive technology devices the list of factors be revised to specify address the needs of disabled children are required to meet the obligation to ‘‘evidence or likely indication of enrolled in private facilities and include provide FAPE for an individual student, significant regression and recoupment.’’ additional guidance relating to an LEA’s the devices must be provided at no cost One comment recommended that the obligation to conduct necessary to the student or his or her parents or reference to ‘‘predictive data’’ be evaluations during the summer when a guardians. expanded to ‘‘predictive data and other child arrives in an LEA in the summer Changes: No change has been made to information based on the opinion of with an IEP from another LEA that this section in response to these parents and professionals.’’ requires ESY services. comments. See discussion under § 300.6 Another comment stated that, Discussion: The regulation and notes regarding a change to § 300.308. although the regulation should related to ESY services were not incorporate Note 2 and permit States to intended to create new legal standards, Extended School Year Services establish standards for determining ESY but to codify well-established case law (§ 300.309) eligibility, public agencies also should in this area (and, thus, ensure that the Comment: A number of commenters be required to make these standards requirements are all in one place). Since expressed support for this regulation. available to parents either at IEP the requirement to provide ESY services Because Notes 1 and 2 following meetings or on request. to children with disabilities under this § 300.309 provide important One comment recommended deleting part who require such services in order clarification regarding criteria for Note 2 because it is too narrow and to receive FAPE is not a new providing extended school year (ESY) inconsistent with case law. According to requirement, but merely reflects the services, some commenters the comment, the ESY standard should longstanding interpretation of the IDEA recommended that these notes be added be flexible and permit consideration of by the courts and the Department, to the regulations. a variety of factors (e.g., whether the including it in these regulations will not Other commenters requested that child’s current level of performance impose any additional financial burden § 300.309 be deleted because it has no indicates that the child will not make on school districts. statutory base, and could be interpreted ‘‘meaningful progress’’ during the On reflection and in view of the to require ESY services for all disabled regular school year in the general comments, it has been determined that

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00171 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12576 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations this regulation should be retained, and Rather, the examples of standards that basis by the IEP team in accordance that Note 1 following § 300.309, with were included in Note 2 (e.g., likelihood with §§ 300.340–300.350. These IEP some modifications, should be of regression, slow recoupment, and requirements include specifying the incorporated into the text of the predictive data based on the opinion of types and amounts of services regulation. Section 300.309 and professionals) are derived from well- consistent with the individual disabled accompanying notes clarify the established judicial precedents and have child’s right to FAPE. obligations of public agencies to ensure formed the basis for many standards The determination of whether an that students with disabilities who that States have used in making these individual disabled child needs ESY require ESY services in order to receive determinations. See, e.g., Johnson v. services must be made by the FAPE have necessary services available Bixby ISD 4, 921 F.2d 1022 (10th Cir. participants on the child’s IEP team. In to them, and that individualized 1990); Crawford v. Pittman, 708 F.2d most cases, a multi-factored determinations about each disabled 1028 (5th Cir. 1983); GARC v. McDaniel, determination would be appropriate, child’s need for ESY services are made 716 F.2d 1565 (11th Cir. 1983). It also but for some children, it may be through the IEP process. The right of an should be pointed out that nothing in appropriate to make the determination individual disabled child to ESY this part is intended to limit the ability of whether the child is eligible for ESY services is based on that child’s of States to use variations of any or all services based only on one criterion or entitlement to FAPE. Some disabled of the standards listed in Note 2. factor. In all instances, the child’s IEP children may not receive FAPE unless Whatever standard a State uses must be team must decide the appropriate they receive necessary services during consistent with the individually- manner for determining whether a child time periods when other children, both oriented focus of the Act and may not is eligible for ESY services in disabled and nondisabled, normally constitute a limitation on eligibility for accordance with applicable State would not be served. Both parents and ESY services to children in particular standards and Part B requirements. educators have raised issues for many disability categories. Therefore, no requirements have been years about how determinations about To ensure that children with added to the regulation regarding this ESY services can be made consistent disabilities who require ESY services issue. with the requirements of Part B. receive the services that they need, a There is no need to specify a timeline The clarification provided in Note 1 high priority is being placed on for determining whether a child should in the NPRM is essential to ensuring monitoring States’ implementation of receive ESY services. Public agencies that public agencies do not limit this regulation in the next several years are expected to ensure that these eligibility for ESY services to children to ensure that State standards are not determinations are made in a timely in particular disability categories, or the being applied in a manner that denies manner so that children with duration of these necessary services. children with disabilities who require disabilities who require ESY services in Since these issues are key to ensuring ESY services in order to receive FAPE order to receive FAPE can receive the that each disabled child who requires access to necessary services. However, necessary services. ESY services receives necessary services to give States needed flexibility in this No further clarification has been in order to receive FAPE, this concept area, the regulations should clarify that provided regarding the times when ESY from Note 1 should be incorporated into States may establish their own services can be offered. Section this regulation. standards for determining eligibility for 300.309(b)(1)(i) specifies that ESY In the past, the Department has ESY services consistent with the services are provided to a child with a declined to establish standards for requirements of this part. disability ‘‘[b]eyond the normal school States to use in determining whether To respond to a concern expressed in year of the public agency.’’ For most disabled children should receive ESY the comments that this regulation could public agencies, the normal school year services. Instead, the Department has require the provision of ESY services to is 180 school days. Typically, ESY said that States may establish State every disabled child, regardless of services would be provided during the standards for use in making these individual need, paragraph (a)(2) has summer months. However, there is determinations so long as the State’s been revised to make clear that ESY nothing in the definition of ESY services standards ensure that FAPE is provided services must be provided only if a in § 300.309(b) that would limit the consistent with the individually- child’s IEP team determines, on an ability of a public agency to provide oriented focus of the Act and the other individual basis, in accordance with ESY services to a student with a requirements of Part B and do not limit §§ 300.340–300.350, that the services disability during times other than the eligibility for ESY services to children are necessary for the provision of FAPE summer, when school is not in session, in particular disability categories. These to the child. if the IEP team determines that the child regulations continue this approach. Although it is important that States requires ESY services during these time Within the broad constraints of inform parents about standards for periods in order to receive FAPE. ensuring FAPE, States should have determining eligibility for ESY services, There is no need to provide flexibility in determining eligibility for a regulatory change is not necessary. clarification regarding the comment that ESY services, and a Federal standard for Since this matter is relevant to the public agencies may wish to use determining eligibility for ESY services provision of FAPE, it already would be different standards in determining is not needed. As is true for other included in the information contained eligibility of preschool-aged children decisions regarding types and amounts in the written prior notice to parents with disabilities for ESY services from of services to be provided to disabled provided under this part for children for those used for school-aged children. children under Part B, individual whom ESY services are an issue. Since Part B does not prescribe determinations must be made in There is no need to incorporate the standards for determining eligibility for accordance with the IEP and placement IEP team’s responsibility to specify the ESY services, regardless of the child’s requirements in Part B. types and amount of ESY services. age, the issue of whether a State should Regarding State standards for Section 300.309(a)(2) already specifies establish a different standard for school- determining eligibility for ESY services, that the determination of whether a aged and preschool-aged children is a Note 2 was not intended to provide an child with a disability needs ESY matter for State and local educational exhaustive list of such standards. services must be made on an individual authorities to decide.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00172 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12577

The IEP or IFSP will specify whether Changes: Consistent with the above requirement ensures that a team of services must be initiated on the child’s discussion, paragraph (a)(2) of § 300.309 professionals with knowledge about the third birthday for children with has been revised, and a new paragraph student will be able to weigh the request disabilities who transition from the Part (a)(3) has been added to this section to of the State and make an individualized C to the Part B program, if the child specify that (1) ESY services must be determination as to whether the State turns three during the summer. This provided only if a child’s IEP team has demonstrated a bona fide security or means that ESY services would be determines the services are necessary compelling penological interest. In provided in the summer if the IEP or for the provision of FAPE to the child; addition, the IEP team would need to IFSP of a child with a disability and (2) Public agencies may not limit consider possible accommodations of specifies that the child must receive eligibility for ESY services based on these interests and only decide to ESY services during the summer. In any category of disability, and may not modify the IEP or placement in case, the IEP or IFSP must be developed unilaterally limit types and amounts of situations where accommodations are and implemented in accordance with ESY services. Notes 1 and 2 have been not possible. This provision also allows the terms of those documents by the removed. the State to address any issues specific child’s third birthday. These FAPE Requirements for Students With to persons alleged of committing responsibilities are clarified elsewhere Disabilities in Adult Prisons (§ 300.311) heinous crimes. in these regulations. This provision does not impact an Comment: Several commenters No additional clarification is being individual’s eligibility for services, requested that the regulation include a provided in this portion of the rather it allows the IEP team to make definition of ‘‘bona fide security or regulations as to whether parentally- compelling penological interest that temporary modifications to the IEP or placed disabled students can receive cannot otherwise be accommodated.’’ placement. These modifications are to ESY services. As is true for Several commenters requested a be reviewed whenever there is a change determinations regarding services for definition that would clarify that this in the State’s bona fide security or children with disabilities placed in exception is to be used only in unique compelling penological interest and at private schools by their parents, situations. These commenters requested least on a yearly basis when the IEP is determinations regarding the services to that the definition specifically exclude reviewed. be provided, including the types and routine issues of prison administration A definition of the terms ‘‘bona fide amounts of such services and which and convenience, cost-reduction security or compelling penological children will be served, are made measures, and policies to promote interest’’ is not appropriate, given the through a process of consultation discipline or rehabilitation through individualized nature of the between representatives of public systematic withholding of educational determination and the countless agencies and representatives of students services which are otherwise required. variables that may impact on the enrolled by their parents in private Another commenter requested that the determination. Further, a State’s interest schools. Through consultation, if a terms be defined to include prudent in not spending any funds on the determination is made that ESY services correctional administration, and provision of special education and are one of the services that a public physical or mental health related services or in administrative agency will offer one or more of its determinations by prison health convenience will not rise to the level of parentally-placed disabled children, officials. a compelling penological interest that Part B funds could be used for this One commenter stated that the cannot otherwise be accommodated, purpose. regulation should include guidance as because States must accommodate the No regulatory change has been made to when an IEP or placement can be costs and administrative requirements regarding the application of LRE modified under the stated exception for of educating all eligible individuals requirements to ESY services. While modifications. Another commenter with disabilities. ESY services must be provided in the requested that the regulations clarify Further, since a modification to the LRE, public agencies are not required to that modifications to IEP or placement IEP or placement is a change in the create new programs as a means of may only be made by the IEP team and placement or in the provision of a free providing ESY services to students with these changes are covered by the notice appropriate public education, the notice disabilities in integrated settings if the requirements of the Act. requirements under the Act would public agency does not provide services Another commenter opposed services clearly be invoked. at that time for its nondisabled children. to students alleged to have committed There is no need to define the term However, consistent with its obligation heinous crimes and requested that a free to ensure that each disabled child ‘‘last educational placement’’ because appropriate public education be limited the term is sufficiently clear. receives necessary ESY services in order to those students who would otherwise Finally, there is no need to further to receive FAPE, nothing in this part be denied access to education services clarify eligibility for transition services. would prohibit a public agency from by virtue of their incarceration. providing ESY services to an individual One commenter requested a definition Since consideration for transition disabled student in a noneducational of the term ‘‘last educational services is also part of the IEP process, setting if the student’s IEP team placement’’ to clarify that this means a eligibility determinations should be determines that the student could public or private school placement. addressed by the IEP team based upon receive necessary ESY services in that Another commenter requested that a the State’s sentencing and parole setting. No further clarification is student’s ‘‘potential’’ eligibility for early policies, which may include potential needed regarding the comment about release be considered in determining eligibility for early release. requirements for evaluating students eligibility for transition services. Changes: None. who move into LEAs during the summer Discussion: The requirement that the Children With Disabilities in Public to determine eligibility for ESY services. student’s IEP team make an Charter Schools (§ 300.312) Requirements for child find are individualized determination regarding addressed elsewhere in these modifications to IEP or placement are See comments, discussion, and regulations. clearly stated in the regulations. This changes under § 300.18.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00173 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12578 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

Children Experiencing Developmental include ‘‘all areas related to the 300.536 be revised; and that other Delays (§ 300.313) suspected disability.’’ technical and conforming changes be If public agencies are in full made. See comments, discussion, and compliance with these evaluation Discussion: Technical and conforming changes under § 300.7. requirements, the initial evaluations changes as recommended by the Initial Evaluations (§ 300.320) will be sufficiently comprehensive to commenter should be reflected in these identify any disability that an final regulations, if relevant. Comment: A few commenters individual child may have, including Changes: Paragraph (a) of § 300.321 requested that the regulation be any disability that was not initially has been amended to delete amended to require that initial suspected. Further, the failure to ‘‘§§ 300.530–300.536’’ from the list of evaluations be comprehensive so that provide such an evaluation is an applicable sections and replace it with each child is tested in all areas of implementation issue and not a ‘‘§ 300.536.’’ Paragraph (b) has been possible disability, not just areas of regulatory issue. Therefore, no change is revised to replace the term ‘‘used’’ with suspected disability (e.g., a child who is needed in this provision. ‘‘addressed.’’ having behavior problems may be acting Section 300.320(a) of the NPRM states out of frustration over unrecognized that each public agency ‘‘shall ensure Definitions Related to IEPs (§ 300.340) learning disabilities). Another that’’ a full and individual evaluation is Comment: None. commenter expressed concern that conducted for each child with a Discussion: To clarify that IEPs are terms such as ‘‘in all areas of suspected disability. It is not necessary to developed, reviewed, and revised at IEP disability’’ and the requirement to substitute ‘‘shall conduct’’ for the meetings, a change would be made to conduct evaluations in the native language in the NPRM. The term used paragraph (a) of this section. However, language do not appear in the NPRM, in the NPRM and in these final as the Committee reports to the Act although they were in prior regulation regulations places the burden squarely noted: and in Appendix A. Another commenter on the public agency to implement the Specific day to day adjustments in recommended that at least three evaluation requirements either directly, instructional methods and approaches diagnosticians from different disciplines by using public agency staff to conduct that are made by either a regular or actually evaluate a child, and added that the evaluations, or by contracting with special education teacher to assist a this helps ensure that the evaluation is other agencies or individuals to do so. disabled child to achieve his or her broad-based, nondiscriminatory, and Technical and conforming changes annual goals would not normally relies on more than one method to that have been recommended should be require action by the child’s IEP team. determine eligibility. reflected in these final regulations to the However, if changes are contemplated in the child’s measurable annual goals, One commenter recommended that extent that they are determined to be benchmarks, or short-term objectives, or § 300.320(a) repeat the language of the relevant. For example, contrary to the in any of the services or program statute (i.e., that the LEA ‘‘shall commenter’s recommendation, modifications, or other components conduct’’ initial evaluations, rather than § 300.533 (determination of needed described in the child’s IEP, the LEA ‘‘shall ensure that initial evaluations are evaluation data) may be germane to must ensure that the child’s IEP team is conducted’’); that the reference to initial evaluations as well as reconvened in a timely manner to applicable sections under §§ 300.530– reevaluations, and, therefore should be address those changes. (S. Rep. No. 105– 300.536 be revised; and that other included in the listed sections under 17, p. 5 (1997); H. Rep. No. 105–95, pp. technical and conforming changes be § 300.320(b)(ii). To the extent feasible, the results of 100–101 (1997)) made. A few commenters recommended evaluations conducted under this part amending § 300.320(b)(2) to add a SEA Responsibility for IEPs(§ 300.341) should be provided to parents and provision requiring the IEP team to appropriate school personnel before any Comment: A few commenters stated provide copies of all evaluations to the meeting to discuss the identification, that the manner in which the term ‘‘that parents and all team members evaluation, or educational placement of agency’’ is used in § 300.341 is sufficiently in advance of the meeting at the child, or the provision of FAPE to confusing because it is not always clear which they will be reviewed so that all the child. However, this is an whether the term is applying to the SEA have time to review the results prior to implementation matter that should be or to other agencies described in the the meeting. left to the discretion of individual section and in Note 1, and requested Discussion: The general requirement public agencies. In administering the that appropriate changes be made. One to conduct evaluations and Part B program over the past 22 years, commenter stated that additional reevaluations was added to Subpart C concerns about evaluation teams not language is needed in the section to (§§ 300.320–300.321) in the NPRM to having timely access to evaluation expand on the State’s ultimate sequentially place evaluations as a results have seldom been raised with obligation to ensure district compliance preliminary step in determining a the Department. with all IDEA requirements. child’s eligibility before convening an Changes: The authority citation for Several comments were received IEP team to develop the child’s IEP. the section has been revised to add a relating to § 300.341(b). One commenter However, the specific evaluation reference to section 614(c) of the Act. stated that ‘‘religiously-affiliated’’ may requirements are included in Subpart E be broader than parochial, but it (§§ 300.530–300.536). Those Reevaluations (§ 300.321) inadvertently excludes private schools requirements, especially the ones in Comment: Some commenters with a religious focus that are not § 300.532, are long-standing provisions expressed support for § 300.321, and affiliated but rather are freestanding, that require the evaluations to be stated that the importance of sharing the and recommended using ‘‘religiously- multifactored and administered in the evaluation information with the IEP oriented’’ instead. Another commenter child’s native language or other mode of team is vital. One commenter recommended using only ‘‘private communication, unless it is clearly not recommended that a wording change be school,’’ and deleting ‘‘religiously feasible to do so. Section 300.532(g) made in § 300.321(b); that the reference affiliated,’’ stating that there is no basis makes clear that the evaluation must to applicable sections under §§ 300.530– for using that term.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00174 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12579

Some commenters stated that the term and (2) the private school provisions in be deleted. A few commenters indicated ‘‘IEP’’ has an explicit meaning in the IDEA Amendments of 1997 and that the statement in Note 1 (regarding IDEA—as an inherent component of § 300.454(a) make it clear that these services not being provided during the FAPE, and recommended that another children have no individual right to summer or a vacation period unless the term other than ‘‘IEP’’ be used with receive some or all special education child requires such services) does not respect to children in private schools, and related services that they would be adequately identify LEAs’ obligations. who are not entitled to FAPE. Another entitled to if enrolled in a public school. Discussion: It would not be commenter recommended that the Therefore, if it is determined, in appropriate to add an outside timeline statement requiring that an IEP is accordance with § 300.454(b) under § 300.342(b) for implementing developed and implemented be revised (Consultation with representatives of IEPs, especially when there is not a to include a reference to the private school children with specific statutory basis to do so. proportionate expenditure requirements disabilities), that a given child is to However, with very limited exceptions, in Subpart D. receive special education and related IEPs for most children with disabilities One commenter recommended that services under this part, the document should be implemented without undue the statement in § 300.341(b)(2)(ii) used to denote those services should delay following the IEP meetings regarding ‘‘special education or related have a different name. The term described in § 300.342(b)(2). services’’ be amended to replace ‘‘or’’ ‘‘services plan’’ has been adopted as an There may be exceptions in certain with ‘‘and’’ in order to avoid any appropriate term for use with these situations. It may be appropriate to have implication that a child may receive children. a short delay (e.g., (1) when the IEP only related services. Another Further, in light of the comments meetings occur at the end of the school commenter suggested deleting the entire related to this section, and the year or during the summer, and the IEP reference to related services. discussion in the preceding paragraph, team determines that the child does not One commenter recommended all provisions related to parentally- need special education and related requiring that (1) any nonpublic school placed children in religious or other services until the next school year that is licensed by the SEA or receives private schools (including the begins); or (2) when there are any other tax or benefit from the State provisions in proposed §§ 300.341(b)(2) circumstances that require a short delay must develop an IEP for each disabled and 300.350) should be incorporated, in in the provision of services (e.g., finding student, and (2) LEAs provide the revised form, under Subpart D (Children a qualified service provider, or making student with a supplemental IEP in Private Schools). transportation arrangements for the showing the additional services that the The statute does not require a private child). LEA will provide. school to unilaterally develop an IEP for If it is determined, through the Discussion: The language of this each disabled child enrolled in the monitoring efforts of the Department, section, and especially the note, should school, or to require a supplemental IEP that there is a pattern of practice within be modified to ensure that the term for additional services that the LEA will a given State of not making services ‘‘SEA’’ is used consistently, to avoid the provide. available within a reasonable period of confusion identified by the commenters. Changes: The name of § 300.341 has time (e.g., within a week or two This can best be accomplished, and the been changed to ‘‘Responsibility of SEA following the meetings described in section strengthened, by moving the and other public agencies for IEPs.’’ The § 300.343(b)), this could raise a question substance of the note into the text of the paragraph headings have been deleted, as to whether the State is in compliance regulation. The comment related to and § 300.341 has been revised with that provision, unless one of the ensuring compliance with all provisions consistent with provisions in Subpart D exceptions noted above applies. of IDEA is addressed by § 300.600, regarding parentally-placed children Changes: Paragraph (b) of this section which provides that the SEA is with disabilities in religious or other is amended (consistent with the responsible for ensuring such private schools. A new paragraph (b) discussion under § 300.344(a)(2) and (3) compliance. incorporates the substance of the note of this Analysis) to require that each In drafting the NPRM the term following § 300.341, to clarify that the public agency must ensure that (1) a ‘‘religiously-affiliated’’ was adopted provisions of the section (related to child’s IEP is accessible to each regular instead of the statutory term public agencies) also apply to the SEA, education teacher, special education ‘‘parochial,’’ based on the assumption if the SEA provides direct services teacher, related services provider and that Congress intended that all religious under § 300.370(a) and (b)(1). The note other service provider who is schools be included, not just those has been deleted. The section has been responsible for its implementation; and organized on a parish basis. The intent further revised by making other (2) each of the child’s teachers and was for the broadest possible coverage. technical and conforming changes. A providers is informed of his or her However, in light of the comment new paragraph has been added to specific responsibilities related to related to this matter, the term § 300.452(b) related to the SEA’s implementing the child’s IEP, and of the ‘‘religiously-affiliated’’ does not account responsibility for eligible children specific accommodations, for other religious schools that are not enrolled in religious schools. modifications, and supported that must affiliated. The term should be replaced be provided for the child in accordance with the more comprehensive term When IEPs Must Be in Effect (§ 300.342) with the IEP. Note 1 has been deleted. ‘‘religious schools.’’ That term will be Comment: Some commenters stated Note 2 (related to a 1997 date certain for used throughout these regulations to that, as used in § 300.342(b)(2) and Note certain requirements regarding students replace ‘‘religiously-affiliated.’’ 1, the terms ‘‘as soon as possible’’ and with disabilities incarcerated in adult Another term other than ‘‘IEP’’ should ‘‘undue delay’’ are not meaningful and prisons) also has been deleted. Subject be used with respect to disabled should be defined or clarified. The headings have been added to each children who are enrolled by their commenters recommended that an paragraph in the section. parents in private schools. As noted by outside timeline (e.g., 15 days following Comment: Several commenters the commenters, (1) ‘‘IEP’’ is an inherent the IEP meetings described in § 300.343) expressed concern about § 300.342(c) component of, and an explicit term used be established for implementing IEPs. and Note 3 (related to using an IFSP for in, the statutory definition of ‘‘FAPE’’, Other commenters requested that Note 1 a child aged 3 through 5), and some of

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00175 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12580 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations the commenters recommended deleting those who attend custodial day care are strongly encouraged to grant any paragraph (c)(2) and the reference to it without an educational component. In reasonable requests from parents for an in Note 3. The commenters stated (for addition, the provisions related to the IEP meeting to address the new IEP example) that (1) IFSPs should be used IFSP under Part C can generally be provisions. Public agencies are also for children under age 3, and IEPs for replicated under Part B. Because of the encouraged to inform parents of the older children, and parents should not definition of ‘‘FAPE,’’ services that are important changes resulting from the have a choice; (2) an IFSP may not be determined necessary for a child to new IEP requirements so that they may appropriate in the educational setting; benefit from special education must be be effective partners in the education of (3) the requirement is inconsistent with provided without fees and without cost their children. OSEP policy letters; (4) the use of an to the parents. Changes: Section 300.342(d) has been IFSP or IEP requires only the two factors Changes: Note 3 has been deleted. revised to state that all IEPs developed, in § 300.342(c)(1) (i.e., it is consistent Comment: Some commenters reviewed, or revised on or after July 1, with State policy, and agreed to by the expressed support for § 300.342(d) in 1998 must meet the requirements of parents and the agency); and (5) because the NPRM (i.e., that all IEPs in effect on §§ 300.340–300.350. July 1, 1998 must meet the new Note 3 and the preamble to the NPRM IEP Meetings (§ 300.343) indicate a clear preference for an IEP requirements in §§ 300.340–300.351), rather than IFSP, a specific rationale stating that public agencies have had Comment: One commenter stated that, should be given. since June 4, 1997 to prepare for as written, § 300.343(b)(1) implies that One commenter requested that Note 3, changes in the IEP requirements, many an LEA is required to make an offer of or Appendix A, be amended to of which have already been in use in services in accordance with an IEP underscore that special care must be some agencies. A few of the commenters whether or not the child qualifies (i.e., taken by LEAs in agreeing to continue requested that all IEPs developed during before the child is evaluated), and children’s IFSPs when they become the spring and summer of 1998 be in requested clarification of the provision. eligible for an IEP—especially if the full compliance with the new Other commenters stated that the IFSP does not have an educational requirements. requirement should begin with referral, component, because research has shown A large number of commenters not consent, and ‘‘services’’ should be a significant positive difference in expressed concern about § 300.342(d), referenced as ‘‘special education and school readiness for kindergarten when stating (for example) that it (1) is related services.’’ children whose (prekindergarten) inconsistent with section 201(a)(2)(A) of Some commenters expressed support program included an educational the Act; (2) will result in massive for the 30 day timeline in component, as compared to those who national noncompliance and public § 300.343(b)(2) (i.e., that an IEP meeting attend custodial day care without an financial liability; and (3) force pro is conducted within 30 days of educational component. Another forma IEPs that will result in frustration determining that a child needs special commenter requested that § 300.342(c) and resentment on the part of parents education). A few commenters be revised to allow use of IFSPs for and local providers. The commenters requested changing the provision to 30 children aged 3 and above without requested that the requirements be ‘‘school days.’’ One commenter meeting the requirements in paragraph changed to provide that IEPs written on recommended amending the provision (b)(2). or after July 1, 1998 must meet the new to recognize that regular education Discussion: It is important to retain in requirements. teachers are not available in the these final regulations the general thrust Discussion: It is appropriate to amend summer, because to the extent of § 300.342(c) from the NPRM (related § 300.342(d) to provide that IEPs participation of a regular education to requiring parental consent to using an developed, reviewed, or revised on or teacher is required at the IEP meeting, IFSP in lieu of an IEP for a child who after July 1, 1998 must comply with the the meeting would have to wait until moves from the Early Intervention requirements in section 614(d) of the teachers return. Program under Part C of the Act to Act and §§ 300.340–300.350 of these A number of comments were received preschool services under Part B of the final regulations. While we commend relating to § 300.343(c)(1) (Review and Act). As a result of the IDEA the many public agencies that began as revision of IEPs). One commenter Amendments of 1997, there have been soon as the IDEA Amendments of 1997 requested that paragraph (c)(1) be significant changes in the statute, was enacted to implement the new amended to clarify that a child’s IEP is including an increased emphasis on the statutory requirements and already have reviewed periodically if warranted, or participation of children with in place IEPs that meet these requested by the child’s parent or disabilities in the general curriculum, requirements, other public agencies teacher, and to include additional and on ensuring better results for argued compellingly that they simply language related to determining if the children with disabilities. Because of did not have the wherewithal to ensure child is making meaningful progress the importance of the IEP as the that, on July 1, 1998, all IEPs would toward attaining the goals and standards statutory vehicle for ensuring FAPE to a fully comply with the new IEP for all children as well as goals and child with a disability, paragraph (c)(2) requirements, and that a phase-in period short term objectives or benchmarks. of this section provides that the parents’ should be adopted in which the Other commenters recommended agreement to use an IFSP for the child anniversary date for each child’s IEP requiring that a review meeting be held instead of an IEP requires written meeting would be the basis for revising when requested by an IEP team member, informed consent by the parents that is the child’s IEP to comply with the new and that LEAs honor ‘‘reasonable’’ based on an explanation of the requirements. requests from parents for timely IEP differences between an IFSP and an IEP. Requiring IEPs developed on or after review meetings. As noted by at least one commenter, July 1, 1998 to meet the new One commenter requested amending research has shown a significant requirements should result in more paragraph (c)(2)(i) (related to revising a positive difference in school readiness meaningful IEPs that focus on effective child’s IEP to address any lack of for kindergarten if children’s implementation, consistent with the progress in the annual goals) by adding ‘‘prekindergarten’’ programs included purposes of the IDEA Amendments of benchmarks or short term objectives to an educational component, compared to 1997. At the same time, public agencies the statement related to annual goals. A

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00176 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12581 few commenters recommended deleting the frequency or nature of the parents’ completing evaluations, especially the reference to ‘‘Other matters’’ in requests for such reviews is during the summer, and delay providing § 300.343(c)(2)(v) as the language is unreasonable, the agency may FAPE for a very long time, and (2) if redundant and confusing. (consistent with the prior notice LEAs respond to requests for evaluation A few commenters requested that a requirements in § 300.503) refuse to in a timely manner, 60 days is new § 300.343(d) be added to conduct such a review, and inform the reasonable. Many of these commenters incorporate the statutory requirement in parents of their right to request a due recommended that the note be added to section 614(c)(4) (i.e., procedures to process hearing under § 300.507. It the regulation. follow when the IEP team determines should be noted, however, that as a Other commenters recommended that no additional data are needed to general matter, when a child is not deleting the 60 day timetable in the determine whether the child continues making meaningful progress toward note, stating that (1) the timeline is not to be a child with a disability). One attaining goals and standards applicable a reflection of the statute, and Federal commenter felt that an additional note to all children, it would be appropriate guidance is not necessary because most should be added to encourage to reconvene the IEP team to review the States have set reasonable, child- combining the eligibility meeting with progress. friendly timetables for the initial the initial IEP meeting. It is inappropriate and unnecessary to provision of services; (2) it is Discussion: There is potential for add ‘‘benchmarks or short-term unrealistic, unreasonable, and confusion with the language in objectives’’ to the statement on annual ambiguous (3) it would override time § 300.343(b)(1) of the NPRM regarding goals in § 300.343(c)(2)(i). The language frames set by States, (4) the Department whether a child must be evaluated in that paragraph, which incorporates could continue to monitor the issue of before the offer of services is made. It the language from the statute, refers to reasonableness in each State without the also would be more appropriate to refer ‘‘the annual goals described in timeline; and (5) while IEPs generally to ‘‘special education and related § 300.347(a).’’ Section 300.347(a) states can be implemented within 60 days, services’’ rather than referring simply to that each child’s IEP must include ‘‘A this non-statutory requirement should ‘‘services.’’ statement of measurable annual goals, not become the standard for all cases. While the basic position taken in the including benchmarks or short-term Some commenters recommended NPRM with respect to § 300.343(b)(1) objectives * * *’’. Therefore, changing the length of the timelines has been retained (i.e., an offer of benchmarks or short-term objectives are (e.g., to 75 days, 80 days, 90 days, or 120 services will be made to parents within inherent in § 300.343(c)(2)(i), and do not days), or using the designation of a reasonable period of time from the need to be repeated. ‘‘school days’’ or ‘‘operational days,’’ or public agency’s receipt of parent It is not necessary to include a note adding a caveat exempting school consent to initial evaluation), the encouraging public agencies to combine breaks and holidays from the 60 day concept of ‘‘making services available’’ the eligibility and initial IEP meetings. timeline. One commenter requested a to a child with a disability seems more This is an individual State option that clarification of timelines when the relevant to these final regulations than many States have unilaterally elected to initial evaluation occurs with less than ‘‘offer of services’’ in ensuring that follow in implementing Part B of the sixty days remaining in the school year. FAPE is available to a child with a Act over the past 22 years, while other Discussion: While it is critical that disability in a timely manner. States have determined that the better each public agency make FAPE Therefore, the regulations should be course is to hold separate meetings. available in accordance with an IEP amended to clarify that, within a Changes: The title of § 300.343(b) has within a reasonable period of time after reasonable period of time following been changed from ‘‘Timelines’’ to the agency’s receipt of parent consent to consent to an initial evaluation, the ‘‘Initial IEPs; provision of services.’’ an initial evaluation, imposing specific evaluation is conducted; and if the child Paragraph (b)(1) has been amended to timelines could result in the timelines is determined eligible under this part, (1) clarify that, within a reasonable being implemented only in a special education and related services period of time from the agency’s receipt compliance sense, without regard to are made available to the child, in of consent to an initial evaluation, ‘‘the meeting the spirit of the requirement, accordance with an IEP. evaluation is conducted’’, and (2) clarify and this may not always serve the best It would not be appropriate to change the timing issue by replacing ‘‘offer of interests of the children involved. the reference to § 300.343(b)(1) from services * * * is made to parents’’ with Moreover, as indicated by some of the ‘‘parent consent’’ to ‘‘referral’’ because ‘‘special education and related services commenters, most States are able to informed consent of the parents is a are made available to the child * * *’’. meet a timeline of 60 days. The necessary step in ensuring that the Paragraph (b)(2) has been changed by Department considers this to be evaluation will be conducted. replacing the phrase ‘‘In meeting the reasonable, and will not make a finding It also would not be appropriate to timeline in paragraph (b)(1)’’ with ‘‘In of noncompliance when monitoring a change the 30 day timeline in meeting the requirement in paragraph State that is meeting the 60 day timeline § 300.343(b)(2) to 30 ‘‘school days.’’ (b)(1).’’ In the title to § 300.343(c), the for most children. That timeline is a long-standing term ‘‘IEP’’ has been changed to ‘‘IEPs.’’ It is recognized, however, that it may, provision that has been appropriately Paragraph (c)(2)(ii) has been revised to for some children, take longer, and for implemented since the inception of the correctly cite § 300.536. The authority some, it could be done in a shorter regulations under this part, and there is cite has been changed from ‘‘1414(d)(3)’’ period of time. Therefore, the note no basis to make such a change. to ‘‘1414(d)(4)(A).’’ following § 300.343 should be deleted, A provision is not necessary to clarify Comment: A number of comments and no timelines should be added to the that public agencies will honor were received on the note following final regulations relating to the concept ‘‘reasonable’’ requests by parents for a proposed § 300.343 (regarding the offer of ‘‘within a reasonable period of time.’’ meeting to review their child’s IEP. of services within 60 days of parent Although no specific timeline is given, Public agencies are required under the consent to initial evaluation). Some implementation should be done with all statute and these final regulations to be commenters expressed support for the due haste. responsive to parental requests for such 60 day time frame, stating that (1) many Changes: The note following reviews. If a public agency believes that LEAs experience significant delays in § 300.343 has been removed.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00177 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12582 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

IEP Team (§ 300.344) parent support personnel can attend IEP child is, or may be, participating in the Comment: A wide variety of general meetings if requested by the parent, and regular educational environment. Some comments was received regarding this that if the district disagrees with the commenters were supportive of the section. Some commenters believe that attendance of a person invited by the participation of the regular education anyone expected to implement the IEP parent, they may file a complaint but teacher at an IEP meeting, agreeing that should attend the IEP meeting. must not prohibit that person from at least one regular education teacher of Numerous comments were received attending the meeting. the child should be an IEP team Commenters also requested regarding the note to this section of the member. Some commenters also pointed clarification regarding how the public NPRM. Some commenters believed that out that problems surrounding agency would document that it has placement of a child with a disability in the note should be deleted in its entirety ensured that the parent actually has the regular classroom cannot be because it went beyond the statute, been given the opportunity to addressed without adequate preparation while other commenters recommended participate meaningfully at their child’s or participation of teachers of those that only portions be deleted, or that the IEP meeting. classes in the IEP meeting. note be included in the regulations Discussion: As numerous commenters Those commenters opposed to the instead. Other commenters requested a emphasized, it is essential that parents requirement cited potential costs. Some limitation on the number of people that are given the opportunity to participate commenters also pointed out that, for could attend IEP meetings, with meaningfully as members of their children with disabilities taking a provision for an exception when child’s IEP team. In many situations, an number of subjects, it will be impossible necessary. IEP meeting can be a very intimidating to bring all teachers together, while a Other commenters suggested that experience for many parents, even if the single teacher will not have the requisite there should be a requirement that an LEA encourages their active expertise on a variety of subjects. appropriate member of the IEP team participation. Frequently, as Other commenters who were meet with every teacher that works with commenters have suggested, parents supportive of the regular education a student to explain goals and objectives would be assisted greatly at their child’s teacher’s participation in principle, and contained in the IEP and IEP meetings if another person could acknowledged the importance of accommodations and modifications accompany them. It is important to obtaining input from a regular education required by the teachers. point out that under IDEA and the teacher, recommended a more flexible Discussion: In response to original regulations for this program, approach. These commenters felt that a commenters’ recommendations and in parents always have been afforded the requirement that a regular education light of the general decision not to use opportunity to bring a friend or teacher be present at every IEP meeting notes in these final regulations, the note neighbor to accompany them at their would interfere with the ability of following this section of the NPRM child’s IEP meeting. Question 26 in the regular education teachers to provide should be removed as a note. However, Notice of Interpretation on IEP the necessary instruction to all children substantive portions should be requirements, published as Appendix A in their classrooms, both with and incorporated, as appropriate, into to 34 CFR part 300, in 1981, stated in without disabilities. Specific pertinent provisions of this section, a note that, in some instances, parents recommendations that commenters reflected in questions and answers on might elect to bring another participant made for regulatory changes were (1) the IEP requirements that are contained in to the meeting, e.g., a friend or neighbor, reference to regular educational Appendix A to these regulations, or someone outside of the agency who is environment in § 300.344(a)(2) should addressed in the discussion of familiar with applicable laws and with be replaced with language such as, if the comments regarding this section. the child’s needs, or a specialist who child is, or may be, participating in a No limitation on the number of conducted an independent evaluation of non-special education classroom; (2) the individuals who can attend IEP the child. reference to regular education teacher meetings should be imposed, as Many parents traditionally have should be replaced with general requested by commenters, since these brought other individuals to accompany education teacher or person determinations are left to parents and them to their child’s IEP meeting as a knowledgeable about the general public agencies, based on the way of ensuring their meaningful education curriculum at the child’s requirements of this section. These participation. Therefore, in response to grade level; (3) the participation of a requirements are sufficient to ensure commenters’ suggestions and to ensure regular education teacher is required that membership on the IEP team is that meaningful parent participation at only if issues arise regarding behavior or limited to individuals who have their child’s IEP meeting is preserved, a socialization, making the input particular knowledge or expertise to new paragraph (c) should be added to necessary; and (4) a regular education bring to the meeting. No clarification is this section. teacher must attend if the child with a needed here with regard to Changes: Section 300.344 has been disability is, or may be, receiving accommodations and modifications for amended by adding a new paragraph (c) instruction from a regular education all personnel who implement a child’s to clarify that ‘‘[T]he determination of teacher during the period of time IEP, since that requirement is addressed the knowledge or special expertise of covered by the proposed IEP. under § 300.346(d)(2) of these any individual described in paragraph Commenters made a number of other regulations. (a)(6) of this section shall be made by suggestions concerning which IEP Changes: The note following this the party (the parents or the public meetings the regular education teacher section of the NPRM has been removed. agency) who invited the individual to be needs to attend and how those Comment: Some commenters a member of the IEP team.’’ determinations could be made, such as, recommended that this regulation be Comment: Numerous commenters (1) the regular education teacher must amended to specify that parents can addressed the requirement in proposed attend only the annual IEP review bring ‘‘advocates of their choice’’ to § 300.344(a)(2) and the pertinent meeting, but that attendance at other their child’s IEP meetings. Other portions of the note regarding the role meetings should be on an as-needed commenters recommended that the of the regular education teacher as a basis; (2) there should be no regulation be clarified to state that member of the child’s IEP team if the requirement that the regular education

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00178 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12583 teacher be physically present at the IEP therefore prescribes that for any child teacher can participate in discussions meeting, but must be given the who is, or may be participating in the about how best to teach the child. opportunity to provide oral or written regular educational environment, that If the child has more than one regular input about the child and appropriate child’s regular education teacher must education teacher, the LEA may instructional strategies; (3) the regular be a member of the child’s IEP team. designate which teacher or teachers of education teacher must attend to the The child’s regular education teacher’s the child will participate on the IEP extent appropriate; (4) the IEP team membership on the IEP team is team. While all regular education must consult with the regular education particularly important to meeting the teachers of the child need not attend the teacher to the extent appropriate, and statutory requirement in section child’s IEP meeting, their input should determine whether it is necessary for 614(d)(1)(A)(ii)(I) of the Act that the IEP be sought, regardless of whether they the regular education teacher to attend explain how the child’s needs will be attend. In addition, each public agency all or part of the meeting; and (5) met so that the child can be involved in must ensure that (1) the child’s IEP is attendance is at the option of the regular and progress in the general curriculum. accessible to each regular education education teacher, who also can appoint In implementing the requirement for teacher (and to each special education an individual of his or her choice who membership of a regular education teacher, related services provider and has had experience with the child and/ teacher on the IEP team, the public other service provider) who is or has had adequate pre-planning time agency will determine which teacher or responsible for its implementation, and with special education personnel. teachers of the child will fulfill that (2) each of the child’s teachers and Other commenters asked whether function to ensure participation of at providers is informed of his or her other individuals could be substituted least one regular education teacher in specific responsibilities related to for the regular education teacher’s the development, review, and revision implementing the child’s IEP, and of the participation at IEP meetings, such as, of the child’s IEP, to the extent specific accommodations, (1) a special education teacher who is appropriate, in accordance with section modifications, and supports that must knowledgeable about the general 614(d)(3)(C) of the Act. (See discussion be provided to the child in accordance curriculum; (2) a school counselor, of § 300.346(d) of these regulations). with the IEP. This provision is particularly for high school students; (3) In addition, it would be highly necessary to ensure proper an individual certified as a regular beneficial to the education of children implementation of the child’s IEP and education teacher, regardless of whether with disabilities to ensure that those the provision of FAPE to the child. that individual is currently working regular education teachers and other However, the mechanism that the public with the child; and (4) for children who service providers of the child who are agency uses to inform each teacher or are receiving only speech-language not members of the child’s IEP team are provider of his or her responsibilities is services, a regular education teacher informed about the contents of a child’s left to the discretion of the agency. need not participate. Commenters also requested that the IEP to ensure that the IEP is It is expected that the circumstances regulations be clarified to state that appropriately implemented. will be rare in which a regular school officials will not be deemed to Whether the child’s regular education education teacher would not be required have predetermined placement solely teacher must be physically present at an to be a member of the child’s IEP team. because a regular education teacher is IEP meeting, and to what extent that However, there may be situations in not present at an IEP meeting. In the individual must participate in all phases which a child is placed in a separate event that a regular education teacher of the IEP process, are matters that must school and participates only in meals, does not attend, commenters asked if (1) be determined on a case-by-case recess periods, transportation, and that regular education teacher would be basis by the public agency, the parents, extracurricular activities with required to provide input regarding the and other members of the IEP team, and nondisabled children and is not regular curriculum, and, if so, how this (2) be based on a variety of factors. This otherwise participating in the regular would be accomplished and issue is discussed in more detail in a educational environment, and no documented. question and answer contained in change in that degree of participation is Numerous commenters expressed Appendix A to these final regulations. anticipated during the next twelve concerns regarding confidentiality of Since the statutory language is months. In these instances, since there IEPs if regular education teachers who incorporated into this regulation would be no current or anticipated did not attend the meeting are provided verbatim, no changes should be made regular education teacher for a child copies. Some commenters suggested regarding the use of the term ‘‘regular during the period of the IEP, it would that there be a central location for all education teacher,’’ or the statutory not be necessary for a regular education IEPs, and the regulation make explicit language regarding the regular teacher to be a member of the child’s that there are limitations on redisclosure educational environment. IEP team. of information in IEPs to others. It is important to point out that the No further clarification should be Discussion: Based on careful statute specifies that at least one regular provided in response to commenters’ consideration of comments as well as education teacher of the child is a concerns about the potential for applicable statutory requirements, member of the IEP team. Therefore, the violation of requirements regarding § 300.344(a)(2) should be retained in suggestions of commenters that other confidentiality of information if copies these final regulations, but additional individuals could participate in lieu of of a child’s IEP are distributed to regular clarification should be provided in the child’s regular education teacher as education teachers or other school Appendix A and in § 300.342(b) of these the regular education teacher member of personnel who did not attend the IEP regulations. the child’s IEP team should not be meeting. These regulations contain Section 614(d)(1)(B)(ii) of the Act adopted; however, as stated in the note confidentiality requirements at specifies that the IEP team must include to this section in the NPRM, the regular §§ 300.560–300.577 that are modeled ‘‘at least one regular education teacher education teacher participating in a after those in the Family Educational of such child (if the child is, or may be, child’s IEP meeting should be the Rights and Privacy Act of 1974 (FERPA), participating in the regular education teacher who is, or may be, responsible 20 U.S.C. § 1232(g), which also applies environment).’’ This statutory provision for implementing the IEP, so that the to this program.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00179 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12584 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

While FERPA does not protect the personally identifiable information To give LEAs flexibility in their confidentiality of information in without prior consent. representation, some commenters general, it prohibits the improper Changes: Section 300.342(b) has been suggested that the public agency disclosure of information from amended, consistent with the above representative should be an individual education records and generally protects discussion. who can interpret the instructional parents’ and students’ privacy interests Comment: Commenters requested that implications of evaluation results and in ‘‘education records.’’ Records ‘‘special education provider’’ be defined may be a member previously described. regarding an individual student’s and that clarification be provided to Other commenters emphasized that the disability maintained by an educational indicate when a special education requirement for participation of a public agency or institution or by a party acting provider could attend an IEP meeting in agency representative could be for the agency or institution are lieu of a special education teacher. burdensome for rural States, and education records under FERPA. Other commenters asked if a recommended that the regulations be Therefore, a child’s IEP is an ‘‘education paraprofessional could attend an IEP clarified to indicate that IEP team record’’ which is subject to FERPA. meeting in lieu of a special education members could fulfill dual functions so Under FERPA and Part B, the prior teacher or special education provider. that responsibility of the public agency written consent of the student’s parent Some commenters recommended that representative could be delegated to or of the eligible student must be the regulations clarify that it would not another team member. obtained for disclosure of personally be permissible for a paraprofessional to Some commenters requested that the identifiable information in education be substituted for a qualified special regulation be amended to provide that if records, unless one of the authorized education teacher or provider as an IEP particular services are not available in exceptions to the prior written consent team member. the district, lack of availability does not requirement is applicable. (34 CFR Commenters also recommended relieve the school district of its 99.30 and 300.571 (a)(2) and (b)). clarification that parents should be obligation either to provide needed Under 34 CFR 99.31(a)(1), educational informed about the qualifications of the services to a disabled child, or to agencies or institutions, under certain IEP team members and degree to which include those services on a child’s IEP. circumstances, may disclose personally the IEP is being implemented by what Discussion: The three criteria identifiable information in education commenters referred to as ‘‘non- enumerated in the statute at section records without prior written consent to qualified personnel.’’ 614(d)(1)(B)(iv) describing the school officials with legitimate Discussion: Section 300.344(a)(3) of representative of the public agency who educational interests. Each educational these final regulations implements is a member of the IEP team are agency or institution must provide section 614(d)(1)(B)(iii) of the Act, incorporated into § 300.344(a)(4) of annual notification regarding how it which gives the public agency the these final regulations. The statute meets the requirements of FERPA. This flexibility to determine whether the should not be read to prohibit the public annual notification under FERPA must child’s special education teacher or agency from designating another include a statement indicating that the special education provider should be a member of the IEP team to act as the parent or eligible student has a right to member of the child’s IEP team. The public agency representative, if that consent to disclosure of personally special education teacher or provider individual meets the specified criteria identifiable information, and the who is a member of the child’s IEP team for each role. Therefore, a new exception permitting nonconsensual should be the person who is, or will be, paragraph (d) should be added to disclosures to school officials with responsible for implementing the IEP. § 300.344 regarding a public agency’s legitimate educational interests must be For example, if the child’s disability is authority to designate another IEP team described. a speech impairment, the special member as the public agency The criteria for determining which education teacher or special education representative member of the IEP team, parties are school officials and what the provider could be the speech-language so long as the criteria in § 300.344(a)(4) agency or institution considers to be a pathologist. are satisfied. legitimate educational interest also must While there is no statutory Changes: Section 300.344 has been be specified in this annual notification. requirement that public agencies inform amended by adding a new paragraph (34 CFR 99.7(a)(3)). Accordingly, an parents of the qualifications of members (d), which authorizes a public agency to educational agency or institution may of the IEP team, there is nothing in these designate another IEP team member as disclose information from education regulations that would preclude public the public agency representative, records to teachers and other school agencies from providing parents with provided the criteria in § 300.344(a)(4) officials who meet the criteria set forth this type of information. Public agencies are satisfied. in the agency’s or institution’s notice are encouraged to grant reasonable Comment: Many commenters and must restrict access by other school requests from parents for such emphasized the need to link the IEP and employees who do not fall within an information. evaluation processes to ensure that exception, unless consent to the Changes: None. participants on the IEP team were disclosures is obtained. Although Comment: Numerous commenters knowledgeable about the deliberations regular education teachers who fall requested that language from Appendix during the evaluation process and within this exception also may disclose A about the public agency’s ability to eligibility determination. Some education records to other school commit agency resources be added to commenters believed that the language officials with legitimate educational the regulation. Commenters emphasized about interpretation of evaluation interests, those officials are subject to that it was especially important that the results needs to be modified to specify the restrictions on redisclosure in 34 individual attending an IEP meeting in that the individual in this capacity had CFR 99.33. the capacity of public agency contributed to the evaluation process. Public agencies also may find it representative must be an individual Many commenters requested that the practical to store education records in such as an LEA administrator who is regulation should specify that the initial one central location to limit access to qualified to develop specially designed IEP team must include a member of the those individuals to whom the agency instruction and have authority to make eligibility team who is qualified to or institution is permitted to disclose decisions regarding LEA resources. interpret the instructional implications

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00180 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12585 of the evaluation results. Some contribute to the quality of the final Several comments were received commenters favored having such an document. regarding an attorney’s participation at individual present at all IEP meetings. Many commenters recommended that IEP meetings, and a recommendation Discussion: Section 300.344(a)(5) the regulations specify which related was made that the discussion regarding essentially reflects the statutory services personnel must attend IEP the attorney’s role at IEP meetings in requirement at section 614(d)(1)(B)(v), meetings. Several commenters Appendix A should be incorporated which requires the participation of an recommended that IEP teams always into the regulations. Another individual who is knowledgeable about must include school psychologists who commenter recommended that the the instructional implications of are knowledgeable about clinical testing regulation should state that attorneys evaluation results, who may be another administration, particularly when should never be in attendance at IEP member of the IEP team. No further evaluation results are being used to meetings unless such a meeting is clarification should be provided since determine IEP goals, behavior impedes convened as a result of an the statute specifically affords public learning, reevaluations are required or administrative proceeding or judicial agencies the flexibility to select another are being determined, and functional review. Other commenters suggested member of the IEP team to fulfill the behavioral assessments and reviews of that adults with disabilities should be requirement of § 300.344(a)(5), provided behavioral interventions are necessary. required members of the IEP team. that individual is knowledgeable about A number of comments were received Discussion: Section 300.344(a)(6) the instructional implications of regarding making the school nurse or adopts verbatim the statutory language evaluation results. other qualified provider of school health at section 614(d)(1)(B)(vi) of the Act. Although commenters requested that services a required participant on the Under this section, parents and public the regulation be amended to require the IEP team. Some commenters limited this agencies have the discretion to bring to participation of a member of the recommendation to situations in which IEP meetings as IEP team members other eligibility team who is knowledgeable the child has medical concerns or individuals who have knowledge or specialized health needs, and urged the about evaluation results to fulfill the special expertise regarding the child, participation of these individuals to the requirement of § 300.344(a)(5), there is including related services personnel, as greatest extent practical, and when no statutory authority to impose such a appropriate. Under this statutory appropriate on the IEP team. provision, the parent’s and public requirement, either for initial or Many commenters were concerned subsequent IEP meetings. However, it is agency’s right to bring other individuals that paragraph (a)(6) of this section was to the IEP meeting at their discretion expected that public agencies will find too restrictive, because it (1) could it helpful to have members of the must be exercised in a manner that prevent parents from bringing support ensures that all members of the IEP team eligibility team as IEP team members for personnel, representatives of PTIs and have the knowledge or special expertise initial and subsequent meetings to other parent organizations, and other regarding the child to contribute develop a child’s IEP. advocates to their child’s IEP meetings, meaningfully to the IEP team. Changes: None. and (2) could place an unreasonable Individuals with knowledge about the Comment: Numerous comments were burden on the parent to prove the child could include neighbors or friends received regarding the participation of individual’s ‘‘special knowledge or of the parents, or advocates, who, in the related services personnel at IEP expertise’’ regarding their child. judgement of the parents, are able to meetings. Some commenters believed Several commenters requested that advise or assist them at the meeting. that any time a child is receiving a the regulations list the conditions under Individuals with special expertise could related service, or whenever a related which speech-language pathologists and include professionals in evaluation or service is reflected in the child’s goals audiologists will or may serve on the special education and related services and objectives, the relevant related IEP team. Some commenters who have been directly involved with services personnel must attend the IEP recommended that the regulations be the child, as well as those who do not meeting. Other commenters requested amended to make the participation of know the child personally, but who that the clarification in Appendix A the speech-language pathologist at the have expertise in (for example) an regarding related services personnel IEP meeting mandatory, while other instructional method or procedure, or in who have special knowledge and commenters suggested that the number the provision of a related service that expertise regarding the child be of individuals required to be on IEP the parents or agency believe can be of included in the regulations as well. teams for students for whom speech is assistance in developing an appropriate Many commenters requested a the only special education service was IEP for the child. regulatory change to specify that related excessive. There is no need to make the services personnel must attend IEP Some commenters recommended that participation of school nurses on the IEP meetings, if appropriate, and need not the regulations specify that a person team mandatory, as requested by be invited by the LEA. Other knowledgeable about the language and commenters. As providers of the related commenters recommended that to assist communication needs of deaf children service ‘‘school health services,’’ their parents, clarification should be must be present for their IEP meetings. participation would be subject to the provided that related services personnel Numerous commenters favored requirements of this section, and they and the parents always must be notified including in the regulation the portion could be members of the IEP team at the of the IEP meeting whenever the child’s of the note regarding the attendance of discretion of the parents or public need for a related service is being persons knowledgeable about positive agency, provided that they possess the discussed. Other commenters behavior interventions and strategies at requisite knowledge and special recommended that § 300.344(a)(6) be IEP meetings, if the student’s behavior expertise regarding the child. The same changed to other individuals with impedes the learning of the student or is true of providers of speech-language special knowledge and expertise others. Some of these commenters and audiology services and individuals regarding the child, the child’s recommended that the reference be knowledgeable about the disability and unique needs, and that changed to a person trained in the communication needs of students who criteria for attending the IEP meeting design and use of effective positive are deaf or hard of hearing. In the case should include persons who can behavior support strategies. of a child whose behavior impedes the

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00181 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12586 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations learning of the child or that of others, that the IEP provisions should be an advocate or staff member from an the public agency is encouraged to have amended to require that an advocate independent living center and a a person with special expertise in employed by the LEA must be present transition coordinator at an IEP meeting positive behavior interventions and at every consultation involving teachers whenever transition services are strategies on the IEP team at the IEP and students regarding IEP or discussed. Other commenters requested meeting. implementation. additional information about boundaries Individuals such as representatives of Discussion: Section 300.344(a)(7) of and parameters for enlisting the PTIs may, at the parent’s discretion, these regulations adopts verbatim the involvement of other agency personnel serve as members of the IEP team, statutory requirement at section in transition meetings. provided they possess the requisite 614(d)(1)(B)(vii) of the Act regarding the Some commenters suggested that not knowledge or expertise regarding the child’s participation as a member of his only the public agency should have the child. or her IEP team, as appropriate. ability to invite representatives of other Regarding attorneys participation at Consistent with this statutory agencies, but so should the parents. If a IEP meetings, it is important to note that requirement, public agencies must student is unable to attend an IEP a new statutory provision at section invite students to attend IEP meetings in meeting, other commenters asked what 615(i)(3)(D)(ii) provides that attorneys’ appropriate situations. steps will be taken to ensure that the fees may not be awarded for an IEP team No regulatory change deleting the student’s preferences and interests are meeting unless the meeting is convened reference to ‘‘if appropriate’’ should be being considered, especially if transition as the result of an administrative made, as requested by commenters, services are being discussed. proceeding or judicial action, or at the since to do so would alter the explicit Discussion: Section 300.344(b)(1) of discretion of the State, for a mediation statutory provision limiting the these regulations would require that a conducted prior to initiating a due student’s participation in IEP meetings student of any age be invited to an IEP process hearing under the Act. Issues to appropriate situations. However, if a meeting if a purpose of the meeting is raised related to attorneys’ fees purpose of the meeting will be the to meet a requirement of § 300.347(b)(1) regarding IEP meetings are also consideration of a student’s transition (transition services) of these regulations. addressed under § 300.513 of this services needs or needed transition If the student cannot attend, the public attachment and in Appendix A. services or both, § 300.344(b)(1) of these agency must take whatever steps are It is not necessary to require the regulations would provide that the necessary to ensure that the student’s participation of adults with disabilities student must be invited to attend, preferences and interests are being on the IEP team. As is true of other because it is important to afford considered. No further clarification related services personnel, as well as students an opportunity to participate should be provided since these steps other individuals selected as IEP team and have a voice in planning for their necessarily will vary based on a variety members at the parent’s or agency’s transition from school to post-school of factors, including the needs of the discretion, an adult with a disability activities, including postsecondary student. could be a member of an IEP team at the education and employment. There is no need for clarification parent’s or public agency’s discretion if The change requested by commenters regarding interagency agreements, since that individual possesses the requisite regarding the participation of a student § 300.142 of these regulations already knowledge and expertise regarding the over eighteen years of age as a member contains a requirement that agreements child. of their IEP team should not be made. be in place between educational and Changes: A new § 300.344(c) has been Even if, under section 615(m) of the Act, noneducational public agencies to added to clarify that ‘‘The determination all rights accorded parents under Part B govern the provision and financing of of the knowledge or special expertise of transfer to students who have reached all required services under these any individual described in paragraph the age of majority under State law, ages regulations, including transition (a)(6) of this section shall be made by of majority differ among States, and not services. There is no need to require the the parents or public agency who all States regard age eighteen as the age participation of advocates and transition invited the individual to be a member at which parental rights transfer to coordinators at IEP meetings at which of the IEP team.’’ children. In addition, under section transition services needs or the Comment: Commenters recommended 615(m) of the Act, there are statement of needed transition services that the word ‘‘appropriate’’ be deleted circumstances in which parental rights is being discussed. from § 300.344(a)(7), since a student accorded under Part B may not be Changes: None. always should be permitted to be at his transferred, even in a State that transfers Parent participation (§ 300.345) or her IEP meeting, and that students rights at the State age of majority. eighteen years of age and older always No change should be made regarding Comment: A number of comments should be considered members of the the commenters’ concerns that students were received on the notice requirement IEP team. would be coerced into accepting in § 300.345(a), including comments Commenters also recommended that instructional plans. It would be more requesting that (1) the regulations language be added to the regulation to appropriate to address these require that the notice be in a format clarify that students under age 14 be implementation issues at the State and and in language that is usable by included on the IEP team on an as- local levels. parents; (2) because of the prior written appropriate basis, and that students 14 Changes: None. notice requirement in the statute, public and older be included as members of the Comment: Commenters requested that agencies should not have the option to team. Other commenters recommended this section be revised to require SEAs provide verbal notice (i.e, by telephone); clarification that the decision as to and LEAs to enter into interagency (3) LEAs generally should not be when it is ‘‘appropriate’’ for a child to agreements with non-school agencies allowed to reject a parent’s proposal for attend his or her IEP meeting rests with that include participation by non-school a time and place of the meeting, and the child and his or her parents. agencies in transition meetings. Other meetings should be held at times that Other commenters expressed a suggestions made by commenters were accommodate parents’ work schedules; concern that students could be coerced that a statement be added to the (4) the term ‘‘early enough’’ in into accepting instructional plans and regulations to require the attendance of § 300.345(a)(1) be replaced with a

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00182 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12587 specific number of days; and (5) a draft meaningfully in those discussions and conduct an IEP meeting if neither parent IEP be given to parents not less than 10 decisions on an equal footing with other elects to attend, after repeated attempts days before the meeting. members of the IEP team. It is not by the public agency to ensure their Discussion: The ‘‘notice’’ requirement necessary to set out a specific timeline participation. In administering and in § 300.345(a) of these final regulations for this information to be provided. monitoring the provisions of this part implements provisions under prior Changes: None. over the past 22 years, few, if any, regulations that were not changed by the Comment: A number of comments questions or concerns have been IDEA Amendments of 1997, and, were received requesting that the first identified, or raised, with respect to the therefore, does not need to be revised sentence of the note following § 300.345 implementation of § 300.345(d), and with respect to the comments received. (related to informing parents of their there is no information to justify This requirement is a long-standing right to bring other people to the IEP amending the paragraph at this time, provision that is intended mainly to meeting) be added to the regulation, and either with respect to the word inform parents about the IEP meeting specifically to § 300.345(b) to ensure ‘‘convince’’ or the reference to and provide them with relevant that this would be a specific maintaining records of efforts to involve information about it (e.g., the purpose, requirement. Other commenters the parents. time, and place of the meeting, and who recommended deleting the note, stating The regulation makes it clear that will be in attendance). The requirement that it is misleading, and will confuse paragraphs (d)(1) through (d)(3) of this is not the same as the prior notice parents and school staff and lead to section are examples of what a public provision in § 300.503 (which requires unneeded difficulties. agency ‘‘may do’’ to maintain a record written notice to parents whenever the Discussion: It is important for parents of its attempts to arrange a mutually public agency proposes, or refuses, to of children with disabilities to be aware agreed on time and place for conducting initiate or change the identification, that, under the provisions of an IEP meeting. Public agencies are not evaluation, or educational placement of § 300.344(a)(6) and (c), other individuals required to go to the parent’s place of the child or the provision of FAPE to the may be included on their child’s IEP employment to attempt to seek the child). team, provided that the individuals parents’ involvement in their child’s In implementing § 300.345(a), some have knowledge or special expertise IEP; and it is expected that a public LEAs elect to contact parents by regarding the child (see discussion agency would pursue that option very telephone or to send less formal notes under § 300.344 of this analysis). To judiciously. However, there may be about IEP meeting arrangements than ensure that parents know about those situations in which the agency believes would be required under § 300.503. provisions, public agencies should be that it is important to do so because it These approaches are consistent with required to include information about is otherwise unable to contact the the long-standing regulatory the provisions in the notice of IEP parent. Implementation of this specific requirement. With respect to meetings specified under § 300.345(a)(1) provision is left to the discretion of each § 300.345(a)(1) (i.e., notifying parents and (b)(1)(ii). public agency. In any case in which the early enough of the meeting to ensure Changes: Section 300.345(b) has been agency is unable to contact the parents that they will have an opportunity to amended to provide that the notice or otherwise ensure their participation, attend), there is no information to justify required under § 300.345(b) must § 300.345(d) sets out options that the replacing the term ‘‘early enough’’ with ‘‘Inform the parents of the provisions in agency may elect to follow. a specified timeline. Because § 300.344(a)(6) and (c) (relating to the Changes: None. communicating with parents about IEP participation of other individuals on the Comment: Several commenters meeting arrangements is generally a less IEP team who have knowledge or recommended that § 300.345(f) be formal process than the procedures special expertise about the child).’’ amended to delete the term ‘‘on required by certain other provisions in Comment: A few comments were request’’ from the statement, so that this part, the use of timelines could received on § 300.345(d) (related to parents are given a copy of the IEP have a negative effect. holding an IEP meeting without the without having to ask for it. One The key factor in § 300.345(a) is that parents if the LEA is unable to convince commenter requested that the copy be public agencies effectively communicate them to participate). The commenters given within 5 days of the meeting. with parents about the up-coming IEP stated that the term ‘‘convince’’ should Discussion: The new statute has given meeting, and attempt to arrange a be replaced because it connotes an parents a more active voice in the mutually agreed upon time and place adversarial situation between the LEA education of their children with for the meeting. This process should and the parents, and suggested other disabilities than existed under prior accommodate the parents’ work terms. Some commenters requested that law. Because of the role parents play in schedules to ensure that one or both § 300.345(d)(3) (related to visits to a the development, review, and revision parents are afforded the opportunity to parent’s home or place of employment) of their child’s IEP, it is appropriate to participate. be deleted, stating (for example) that amend the regulation to require that The commenter’s request that the such a provision is overly intrusive, each public agency must give the public agency provide parents with a invasive, and could anger employers, parents a copy of their child’s IEP at no copy of the IEP 10 days before the and could cause some parents to be cost to the parents. meeting is inconsistent with the negatively impacted or insulted; and Changes: Section 300.345(f) has been requirements of this part, which that the remaining methods in amended consistent with the above requires that the IEP be developed at the § 300.345(d)(3) are sufficient. discussion. IEP meeting. However, to the extent that Another commenter suggested preliminary information is available in replacing the language in this paragraph Development, Review, and Revision of the agency that may affect discussions with language that would require LEAs IEP (§ 300.346) and decisions at the meeting related to to demonstrate what they have done in Comment: A few comments were their child’s IEP, it is expected that the attempting to involve parents. received on § 300.346(a)(1). Commenters information would be provided to the Discussion: Section 300.345(d) is a recommended that (1) examples be parents sufficiently in advance of the longstanding provision that is intended added related to the strengths of the meeting so that they can participate to enable a public agency to proceed to child and the concerns of the parents for

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00183 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12588 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations enhancing the child’s education; (2) the appropriate, through examination of required to specify what disciplinary IEP team also consider the child’s existing evaluation data. Therefore, the actions would occur if a child violated performance results on any State or commenters’ concern that separate or his or her behavioral intervention plan. district-wide assessments, in addition to expansive evaluation procedures would Discussion: Paragraph (a)(2) of this the results of the initial or most recent be required is not warranted. section (relating to consideration of evaluation of the child; and (3) the term The commenters’ suggestion regarding special factors) implements the new ‘‘consider’’ be replaced with ‘‘examine the IEP team’s consideration of the statutory requirement in section and address;’’ or with ‘‘incorporate,’’ to child’s performance results on any State 614(d)(3)(B) of the Act. It should be ensure that the IEP team incorporates and district-wide assessment programs emphasized that, under prior law, IEP the listed items into a child’s IEP, rather is consistent with the emphasis in the teams were required to consider these than simply considering them. Act on the importance of ensuring that special factors in situations where such While some commenters children with disabilities participate in consideration was necessary to ensure recommended that Note 1 be retained, the general curriculum and are expected the provision of FAPE to a particular other commenters recommended that to meet high achievement standards. child with a disability. Therefore, this the clarification in the note either be Effective IEP development is central to new statutory provision makes explicit included in the text of the regulation or helping these children meet these high what was inherent in each child’s deleted in its entirety. One of the standards. Section 612(a)(17) of the Act entitlement to FAPE under prior law. concerns expressed by commenters was and § 300.138 of these regulations Paragraph (a)(2)(i) of this section that in considering special factors, the require, as conditions for receipt of adopts the statutory requirement at statement in Note 1 concerning review IDEA funds, that States ensure that section 614(d)(3)(B)(i) of the Act, that, in of valid information data, as children with disabilities are included the case of a child whose behavior appropriate, sets up a demand of in general State and district-wide impedes his or her learning or that of separate or more expansive evaluation assessment programs, with appropriate others, the IEP team consider, if procedures for special consideration. accommodations where necessary, and appropriate, strategies, including Discussion: Section 300.346(a)(1) must report the performance results of positive behavioral interventions, adopts the statutory requirements these children on such assessments. strategies, and supports to address that related to considering the strengths of Therefore, § 300.346(a)(1) should be behavior. The commenters’ concern that the child and the concerns of the amended by adding paragraph (iii) to the retention of the words ‘‘if parents. No examples regarding this require that in considering the results of appropriate’’ would mean that the provision have been incorporated into the initial or most recent evaluation of provision would be applied only in these final regulations, since these the child, the IEP team also consider, as situations where a child exhibited determinations would differ for each appropriate, the results of the child’s dangerous behavior seems to ignore that student, based on a variety of unique performance on any general State or school officials have powerful factors in light of the abilities and needs district-wide assessment programs. incentives to implement positive of the parents and children involved. Changes: Section 300.346(a)(1) has behavioral interventions, strategies and Because the requirement to ‘‘consider’’ been amended by adding paragraph (iii) supports whenever behavior interferes the strengths of the child and the to provide that, in considering the with the important teaching and concerns of the parent, as well as the child’s initial or most recent evaluation, learning activities of school. Since the special factors, is statutory, a word other the IEP team also consider, as word ‘‘strategies’’ is used two times in than ‘‘consider’’ should not be appropriate, the results of the child’s the statutory provision, contrary to substituted. The requirements in performance on any general State or commenters’ suggestion, the word paragraph (a)(1) and (a)(2) of this section district-wide assessment programs. Note strategies should not be deleted the impose an affirmative obligation on the 1 to this section of the NPRM has been second time it appears in this section. IEP team to ensure that the child’s IEP removed. Although the commenters’ reflects those considerations. Comment: Numerous comments were suggestions that behavior may be Paragraph (c) of this section also received on § 300.346(a)(2) (i.e., exhibited that impedes learning due to makes clear that if the IEP team consideration of special factors). With a frustration over lack of services and determines, through consideration of respect to the factor under paragraph that the IEP team needs to examine in special factors, that a child requires a (a)(2)(i), in the case of a child whose and out-of-school behavior to develop particular service, intervention, or behavior impedes his or her learning or interventions to sustain learning are program modification, a statement to that of others, commenters requested extremely important, no clarification this effect must be included in the that (1) the term ‘‘if appropriate’’ be should be provided in these regulations, child’s IEP. Therefore, no further deleted because it will be used only for to avoid overregulation in this area. It clarification is necessary. Because the those children exhibiting dangerous would be more appropriate to provide requirements in § 300.346(a) are evident behavior; (2) a note be added to state technical assistance on § 300.346(a)(2)(i) from the text of this regulation, there is that consideration should be given to on an as needed basis, instead of no need to retain Note 1 to this section whether the behavior that impedes developing general rules to which of the NPRM in these final regulations. learning is due to frustration over a lack numerous exceptions would most likely Section 300.346(a)(1)(ii) also requires of services; (3) the IEP team also apply. The Department funds a number consideration of the results of the initial consider behavior exhibited both in and of research efforts in this area, as well or most recent evaluation of the child, outside the school, and behavior that as technical assistance providers. Of and this consideration must include, as must be addressed to sustain in-school course, in appropriate cases it might be appropriate, a review of valid evaluation learning; (4) aversive behavior helpful to all parties for the IEP to data and the observed needs of the child management strategies are banned identify the circumstances or behaviors resulting from the evaluation process. under these regulations; (5) a child not of others that may result in Because Pub. L. 105–17 strengthens be subjected to physical restraints or inappropriate behaviors by the child. collaboration between the IEP and interventions unless agreed to by the Regarding what behavioral evaluation processes, it is expected that child’s parent and teacher; and (6) a interventions and strategies can be used, this consideration will occur, as plan between the parent and teacher be and whether the use of aversive

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00184 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12589 behavioral management strategies is acquisition might take precedence over Comment: With respect to the special prohibited under these regulations, the the general curriculum. factor considered for a child who is needs of the individual child are of A few commenters expressed support blind or visually impaired, commenters paramount importance in determining for Note 3, stating (for example) that it requested that the regulation clarify that the behavioral management strategies is helpful in recognizing that special (1) Braille materials must be provided to that are appropriate for inclusion in the education services may need to be students who are blind or visually child’s IEP. In making these provided in a language other than impaired at the same time that their determinations, the primary focus must English. Other commenters requested sighted peers receive the materials; (2) be on ensuring that the behavioral that Note 3 be moved to the text of the a child may not be denied Braille management strategies in the child’s IEP regulation, or deleted in its entirety services on the basis that modified reflect the Act’s requirement for the use since it expands responsibilities under reading and writing media, other than of positive behavioral interventions and these regulations to requirements of Braille, are being provided; (3) when strategies to address the behavior that Federal laws other than Part B. there is a disagreement about the use of impedes the learning of the child or that Discussion: Section 300.346(a)(2)(ii) Braille, Braille instruction must be of other children. of these regulations adopts verbatim the provided until lawful procedures have It would not be appropriate for these statutory requirement at section culminated in a final decision; and (4) regulations to require a specific plan 614(d)(3)(B)(ii) of the Act, that in the any child who meets the legal definition between the teacher and parent, as case of a child with limited English of blindness should be taught Braille. described by commenters, that would proficiency, the IEP team consider the Commenters also stated that other specify consequences for a student’s language needs of the child as such options besides Braille may be needed failure to comply with a behavioral needs relate to the child’s IEP. for certain students, as described in the intervention plan. A child’s need for Modifications to this paragraph that ‘‘Policy Guidance on Educating Blind this type of plan, and the specific would involve changes to statutory and Visually Impaired Students’’ (OSEP elements of that plan, would vary language should not be made. 96–4, dated 11–3–95), and requested Issues such as the extent to which a depending on the child and the that a note be added that includes much LEP child with a disability receives behavior involved. Of course, in of the content of that document, or that instruction in English or the child’s appropriate circumstances, the IEP team a reference be made to that policy native language, the extent to which a which includes the child’s parents, guidance paralleling Note 2 relating to LEP child with a disability can students who are deaf or hard of might agree upon a behavioral participate in the general curriculum, or intervention plan that included specific hearing. whether English language tutoring is a Discussion: Section 300.346(a)(2)(iii) regular or alternative disciplinary service that must be included in a of these final regulations adopts measures that would result from child’s IEP, are determinations that verbatim the statutory language at particular infractions of school rules. must be made on an individual basis by section 614(d)(3)(B)(iii) of the Act. Parents who disagree with the the members of a child’s IEP team. Under this requirement, in the case of behavioral interventions and strategies In light of the general decision to a child who is blind or visually included in their child’s IEP can utilize remove all notes, Note 3 has been impaired, the IEP team must make the Act’s procedural safeguard removed. However, in developing an provision for instruction in Braille and requirements, which afford them the IEP for a LEP child with a disability, it the use of Braille, unless the IEP team right to request an impartial due process is particularly important that the IEP determines, after the evaluations hearing under § 300.507 and the option team consider how the child’s level of described in the statutory provision, to use mediation under § 300.506 of English language proficiency affects the that instruction in Braille or the use of these regulations. special education and related services Braille is not appropriate for the child. Changes: None. that the child needs in order to receive Changes to statutory language requested Comment: Numerous comments were FAPE, consistent with § 300.346(a)(2)(ii) by commenters should not be made. received on § 300.346(a)(2)(ii) and Note and (c). Under Title VI of the Civil Contrary to a suggestion of 3 (factors related to a child with limited Rights Act of 1964, school districts are commenters, a regulatory provision English proficiency (LEP). Commenters required to provide LEP children with making it mandatory for Braille to be recommended changes in the regulation, alternative language services to enable taught to every child who is legally such as: (1) replacing ‘‘IEP’’ with them to acquire proficiency in English blind would contravene the ‘‘disability’’ in § 300.346(a)(2)(ii); (2) and to provide them with meaningful individually-oriented focus of the Act, clarifying that the consideration include access to the content of the educational as well as the statutory requirement that how the child’s level of English curriculum that is available to all the IEP team must make individual language proficiency affects the students, including special education determinations for each child who is provision of special education and and related services. blind or visually impaired based on related services needed to receive FAPE, A LEP child with a disability may relevant evaluation data. As explained and how the child will be provided require special education and related in OSEP Memorandum 96–4, Policy meaningful and full participation in the services for those aspects of the Guidance on Educating Blind and general curriculum, including through educational program which address the Visually Impaired Students, the IEP the use of alternative language services; development of English language skills team’s determination as to whether a (3) clarifying that special education and and other aspects of the child’s child who is blind or visually impaired related services be provided in the educational program. For a LEP child receives instruction in Braille or the use language identified by the school with a disability, under paragraph (c) of of Braille cannot be based on factors district, with appropriate support this section, the IEP must address such as availability of alternative services; (4) clarifying whether English whether the special education and reading media, such as large print, language tutoring is a related service related services that the child needs will recorded materials, or computers with that must be included in a child’s IEP be provided in a language other than speech output. or part of the general curriculum; and English. Additionally, although these (5) recognizing that second language Changes: Note 3 has been removed. regulations do not specify that a child

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00185 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12590 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations for whom Braille instruction is applicable procedures in section 607(b) published policy guidance on Deaf determined appropriate must receive and (c) of the Act. Students Education Services, and that Braille materials at the same time they Commenters recommended adding to the full range of communication and are provided to their sighted peers, once the regulations proposed definitions of related needs of deaf and hard of the IEP team determines that a child the terms ‘‘direct communication,’’ ‘‘the hearing students are appropriately requires instruction in Braille, such child’s language,’’ and ‘‘full range of addressed in evaluation, IEP, and instruction, along with other aspects of needs,’’ or adding clarifying language placement decisions under these the child’s IEP, must be implemented as relating to those terms (e.g., that the regulations. soon as possible following the child’s child’s primary language could be The Senate and House Committee IEP meeting, and in any case, without American Sign Language, and that the Reports on Pub. L. 105–17 reinforce this undue delay. If there is disagreement full range of needs includes social, principle in their statements that ‘‘the between the parents and school district emotional, and cultural needs). IEP team should implement the [new over what constitutes an appropriate Commenters also recommended (1) statutory] provision in a manner program for a child who is blind or requiring that counselors of the deaf consistent with the policy guidance visually impaired, when the IEP team assess each deaf child’s language and entitled ‘‘Deaf Students Education has determined that instruction in speech communication in spontaneous Services’’ published in the Federal Braille would not be appropriate for the conversation at age 5, to determine Register (57 FR 49274, October 30, child, the parents of the child would whether the child has the skill to stay 1992) by the Department.’’ S. Rep. No. have the right to request a due process in an oral program or should be 105–17, p. 25., H.R. Rep. No. 105–95, p. hearing and mediation. In addition, transferred to a program that uses sign 104 (1997). The Department fully parents have available to them language; (2) that the regulations make expects LEAs to ensure that mediation and complaint resolution by it clear that the communication needs of § 300.346(a)(2)(iv) of these regulations is which they can file a complaint with the a deaf child are fundamental to the LRE implemented consistent with these SEA under the State complaint decision; (3) that many deaf children statements. need to be in an environment where procedures in these regulations. Changes: Note 2 has been removed. they can communicate directly through Although the LEA would not be Comment: With respect to considering a visual mode with those around them; required to provide instruction in whether a child needs assistive Braille while the dispute is being and (4) that the IEP team document that technology (AT), some commenters resolved, the LEA would be required, it considered the language and stated that if AT devices or services are both by Part B and Section 504, to communication needs of a hard of recommended and not provided, the IEP ensure that the child receives hearing child and how such needs will must include a statement to that effect instructional materials in an alternative be met in the proposed placement. and the basis on which the medium to enable the child to A few commenters requested that determination was made. Other participate in the LEA’s program. children with cochlear implants be The OSEP Policy Guidance on included with other deaf children in the commenters stated that having to Educating Blind and Visually Impaired structure of educational placements and document that such devices and students should not be included in language and communication needs, services were considered is an these final regulations since many of the and that the IEP state what will be done unnecessary paperwork burden. statutory and regulatory provisions cited to assist the child to best utilize the Commenters also recommended (1) in the policy guidance have been hearing acquired. requiring that decisions about the need replaced by the requirements of Pub. L. Some commenters requested adding for AT are made early enough so that 105–17. In some important respects, children with deafness and blindness they are in effect by the beginning of the particularly with regard to consideration because they also have communication school year; (2) clarifying that if an AT of instruction in Braille, Pub. L. 105–17 needs and require this consideration. device is needed, the child has the right substantially revised the requirements Discussion: Section 300.346(a)(2)(iv) to take it home; (3) adding clarification of prior law. It also should be pointed of these regulations adopts verbatim the of liability issues (e.g., where a child out that Note 2 to this section of the statutory requirement in section uses a family owned device at school NPRM, which contained a reference to 614(d)(3)(B)(iv) of the Act that the IEP and other waiver of liability issues); and corresponding policy guidance team consider the communication needs (4) adding a note that AT can have a regarding educating deaf students, is of the child, and, in the case of a child significantly positive effect on the being removed as a note, and pertinent who is deaf or hard of hearing, those attainment of annual goals and references to that policy guidance are additional special factors relating to the participation in the general curriculum. incorporated into the discussion of child’s language and communication Discussion: Section 300.346(a)(2)(v) of § 300.346(a)(2)(iv). needs. Additional guidance in the form these regulations adopts verbatim the Changes: None. of changes to the regulations requested new statutory requirement at section Comment: With respect to considering by commenters should not be provided. 614(d)(b)(3)(v) of the Act, making it the communication needs of the child In the interest of not using notes in mandatory for the IEP team to consider and factors related to a child who is deaf these final regulations, Note 2 to this each child’s AT needs. This statutory or hard of hearing, commenters section of the NPRM should be provision reinforces the requirement in expressed support for Note 2 (related to removed. It is important to emphasize § 300.308 of these regulations that if an policy guidance on Deaf Students that this policy guidance on Deaf IEP team determines that a disabled Education Services that was published Students Educational Services merely child requires an AT device or service in the Federal Register in 1992), and interprets existing statutory and in order to receive FAPE, the required requested that the entire statement be regulatory requirements, and does not AT must be provided at no cost to the published as an attachment to these impose new requirements on the public. parents. In all instances, the IEP team regulations. Some commenters favored Nevertheless, LEAs are not relieved of must determine whether an individual deleting Note 2 because they objected to their responsibilities to ensure that disabled child should receive AT, and if citation of policy guidance documents paragraph (a)(2)(iv) of this section is so, the nature and extent of AT provided in the regulations without following implemented consistent with the to the child.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00186 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12591

Because in many situations, parents paragraph be added to § 300.346 to school personnel is to ensure the were reporting that LEAs were not ensure that all children with disabilities provision of FAPE to children with properly considering their children’s AT receive the services in their IEPs and disabilities under Part B, their needs on an individual basis, this new retain the rights and privileges included integration with nondisabled peers and provision should ensure that each under the Act. their participation and involvement in child’s IEP team considers the child’s Discussion: While the concerns the general curriculum, as appropriate. need for AT. Since IEP teams must expressed by these commenters are Consistent with the Act’s emphasis on consider each child’s need for AT on an extremely important, no regulatory ensuring the provision of FAPE to individual basis, determinations changes should be made. Consideration children with disabilities, and, to the regarding the provision of AT must be of the five specific factors outlined in maximum extent appropriate, educating made when the child’s IEP for the the statute and these regulations, of those children in regular classes with upcoming school year is finalized so necessity, will require consideration of nondisabled children with appropriate that the AT can be implemented with information from a variety of sources, supplementary aids and services, it is that IEP at the beginning of the next and § 300.346(c) of these regulations critical that at least one regular school year. also requires that such consideration be education teacher of the child be a In the interest of not adding reflected in the contents of a child’s IEP. member of the IEP team and provide paperwork burdens to these regulations, In addition, it is not necessary to add a input on appropriate supplementary there is no additional requirement that provision to clarify that all children aids and services, including program LEAs document that the IEP team with disabilities must receive services modifications and supports for school considered a child’s AT needs, or listed in their IEPs. This requirement is personnel. It also is essential that the considered a child’s AT needs and already reflected in § 300.350 of these child’s teachers and other service determined that AT not be provided to regulations, which provides that each providers who are not members of the the child. It is not necessary to add the child with a disability must receive IEP team are informed about the clarification regarding the importance of special education and related services in contents of the child’s IEP, in whatever reflecting a child’s AT needs in IEP accordance with an IEP. manner deemed appropriate by the goals and objectives or in issues relating Changes: None. public agency, so that the IEP is Comment: A few comments were to the child’s participation in the properly implemented by all school received on § 300.346(d)(2) (relating to general curriculum. personnel. All of needs identified through the determination of supplementary Changes: None. consideration of the special factors aids and services, program contained in paragraph (a)(2) of this modifications, and supports for school Content of IEP (§ 300.347) section must be reflected in the contents personnel, consistent with of the child’s IEP, including, as § 300.347(a)(3)). The commenters stated Comment: A number of general appropriate, the instructional program that (1) the term ‘‘supports for school comments were received relating to and services provided to the child, the personnel’’ focuses the need from the § 300.347. Some commenters expressed annual goals, and the child’s student to the staff, and recommended concerns that the IEP requirements were involvement in and progress in the adding a note to narrow this provision, burdensome. A commenter requested general curriculum. In addition, because it could be interpreted broadly that a sample IEP be provided in order individual consideration of a child’s AT by staff and have a negative effect on to cut down on paperwork and keep the needs is essential to ensuring that the resources that are needed to directly IEP to the essentials of Federal and State child’s unique needs arising from his or meet student needs; (2) the provision law. Commenters also (1) requested that her disability are appropriately may be used by teachers to block a provision addressing assistive addressed so that the child can be admission of children with disabilities technology be added, as it is often not involved in and progress in the general to their class by demanding provided, and (2) stated that § 300.347 curriculum. unreasonable supports; (3) additional should contain a requirement that the Issues regarding whether AT devices guidance be provided, since this is the IEP document be in a user-friendly or services can be used at home, and first time that the IEP has addressed format and written in language that can issues regarding liability for family- needs not specific to the child; and (4) be understood by parents, and that the owned AT devices used at school are language be added indicating that the mandatory contents of IEPs include ESY addressed either in discussions of LEA and not the teacher should be the services, if a child is eligible for such §§ 300.5–300.6 or 300.308 of the focus of responsibility in the provision services, and necessary services that attachment, and, as appropriate, are of such supports. will be provided by another agency and reflected in changes to those Discussion: With respect to the name of the provider. regulations. § 300.346(d)(2), including the statement Other commenters requested (1) Changes: None. relating to supports for school documenting how special factors were Comment: Commenters stated that, in personnel, it is critical that those considered; (2) clarifying the role of the light of the fact that IEP teams must determinations are ‘‘consistent with regular education teacher in IEPs of consider special factors in five specific § 300.347(a)(3).’’ Section 300.347(a)(3) children who are in self-contained, instances, and are responsible for makes clear that the focus of the restrictive placement settings, or private significant decisions as a result of supports is to assist the child to advance placements; (3) providing the necessary changes made by Pub. L. 105–17, a new appropriately toward (for example) flexibility to change how and where paragraph (a)(3) should be added to attaining the annual goals, and to be services are delivered to meet the § 300.346 to provide specific guidance involved in and progress in the general child’s changing needs; and (4) to IEP teams (e.g., requiring that the education curriculum. Therefore, while forbidding the practice of LEAs teams draw upon information from a certain supports for school staff may be providing interim plans which promise variety of sources, including teacher provided (such as specific training in that a full IEP will be developed at a observation, input from parents, and the effective integration of children with later date—a device used by LEAs to other specified information). Other disabilities in regular classes), the avoid specifying what they will do for commenters requested that a new ultimate focus of those supports to a child, so that the IEP can be discussed

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00187 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12592 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations and litigated (if necessary) well before for an individual child with a disability curriculum, and justify use of the the start of a school year. if there is some question about the resource room instead of supports in the Discussion: In developing these final child’s special education or related regular classroom, and (2) clarify what regulations, efforts have been made to services needs. However, it would not the expectations are for children with ensure that the regulatory requirements be consistent with the requirements of significant cognitive disorders. related to the content of IEPs are this part for an LEA to adopt an across- Discussion: It is important that the consistent with the IDEA Amendments the-board policy of developing interim statement of a child’s present levels of of 1997, and that no additional burden IEPs for all children with disabilities. educational performance be based on is added. The Department will explore Clearly, in any case in which the IEP for current, relevant information about the the extent to which a sample IEP a child with a disability does not seem child, that is obtained from a variety of addressing the Federal requirements as to effectively address the needs of the sources, including (1) the most recent part of a technical assistance effort, child, the IEP team should be reevaluation of the child under would be useful to parents and State reconvened (at the request of the child’s § 300.536, (2) assessment results from and local administrators in developing parent or teacher(s)) to reconsider the State and district-wide assessments, (3) IEPs that meet Federal, State, and local nature and scope of the IEP. inputs from the child’s special and rules. Changes: None. regular education teachers, and (4) With respect to concerns about added Comment: A few comments were information from the child’s parents. burden, the provisions of § 300.347 are received related to the statement of the (§ 300.346(a)(1)). If an independent drawn directly from the statute. While present levels of educational educational evaluation has been the statute did add some new performance in the IEP (§ 300.347(a)(1)), conducted, the results of that evaluation requirements regarding content, it also including requesting that (1) the also must be considered if it meets gave the flexibility to use benchmarks of statement include the results of any agency criteria for such evaluations. progress as opposed to short term independent assessment that has been (§ 300.502(c)(1)). objectives, and to determine how to done, and any reasons the LEA has for Consideration of all of the information regularly report on a child’s progress not accepting the assessment; and (2) described above is inherent in the instead of the more burdensome the provision requiring a description of requirement that the IEP include ‘‘a objective criteria, evaluation procedures how the child’s disability affects the statement of the present levels of and schedules required under prior law. child’s involvement in the general educational performance.’’ Therefore, it Except for including, essentially curriculum be deleted. One commenter is not necessary to amend the regulation verbatim, the statutory content recommended that this requirement and to address this requirement. requirements in the regulations, the the provision on goals and objectives in The provision in § 300.347(a)(1)(i) format and specific language used in § 300.347(a)(2) be revised to address the that requires a description of how a developing IEPs are matters left to the concept of ‘‘meaningful’’ participation child’s disability affects the child’s discretion of individual States, and, to in the general curriculum. Commenters involvement in the general curriculum the extent consistent with State also requested that, in the requirements (i.e., the same curriculum as for requirements, individual LEAs within for a description of how a preschool nondisabled children) is a statutory the States. In providing such discretion, child’s disability affects the child’s requirement and cannot be deleted. The the assumption is that each State and participation in appropriate activities, requirement is important because it LEA would attempt to make the format the term ‘‘appropriate activities’’ be provides the basis for determining what and language of the IEP as clarified or examples given. accommodations the child needs in understandable and meaningful for A number of comments were received order to participate in the general parents as possible. Within this general regarding the ‘‘statement of measurable curriculum to the maximum extent framework, IEP teams develop the annual goals, including benchmarks or appropriate. specific detail that is necessary to short-term objectives’’ (§ 300.347(a)(2)). A basic assumption made in both the address each child’s individual needs. Several commenters requested that the statute and these final regulations is that The importance of assistive term ‘‘benchmarks’’ be defined or the programming and services for each technology devices and services in clarified or that a note be added to ‘‘individual’’ child would be tailored to meeting the special educational needs of include examples, and that the term be address the child’s unique needs that children with disabilities is addressed distinguished from ‘‘short-term impede the child’s ability to make in several sections of these regulations objectives.’’ Other commenters meaningful progress in the general (e.g., §§ 300.5, 300.6, 300.308, and requested that (1) the term curriculum. (As explained elsewhere in 300.346). The importance of ESY ‘‘measurable’’ apply to short-term this attachment, the reference to the services and the requirements related to objectives and not to annual goals, (2) general curriculum in § 300.347(a)(2) addressing the need for those services is the regulation clarify if ‘‘measurable’’ has been modified to clarify that the included under § 300.309. Therefore, no means statements of the amount of general curriculum is the same additional provisions are warranted in progress expected; (3) a child’s report curriculum for nondisabled children.) this section. card be used to report annual goals; and With respect to preschool-aged With respect to the comment (4) a provision be added requiring the children, the term ‘‘appropriate regarding the role of the regular IEP team to be reconvened if the activities,’’ as used in § 300.347(a)(1)(ii), education teacher, the IDEA benchmarks indicate that the child is includes activities that children of that Amendments of 1997 require that at not making satisfactory progress. chronological age engage in as part of a least one regular education teacher of Comments were received on formal preschool program or in informal the child be a member of the child’s IEP § 300.347(a)(2)(i) (regarding enabling a activities (e.g., coloring, pre-reading team if the child is or may be child to be involved in and progress in activities, sharing-time, play time, and participating in the regular education the general curriculum), as follows: (1) listening to stories told or read by the environment. make the provision clearer, including parent or pre-school teacher). In order to The development of an interim IEP (or requiring that the LEA list, for each goal recognize that for some preschool-aged the use of a diagnostic placement, on a and objective, each obstacle to full, children appropriate goals will be case-by-case basis) may be appropriate effective participation in the general related to participation in appropriate

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00188 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12593 activities, as these children are not of an that such participation is subject to the environment if it is determined that age for which there is not a general same rules as other children. they cannot be appropriately served in curriculum for nondisabled children, a With respect to § 300.347(a)(4) (an the regular education environment, even change should be made to explanation of the extent to which the with the use of supplementary aids and § 300.347(a)(2). child will not participate with services. A delineation and description of the nondisabled children), a few This new provision is designed to difference between ‘‘benchmarks’’ and commenters recommended that the ensure that each IEP team carefully ‘‘short term objectives’’ is included in provision be deleted, or that it be stated considers the extent to which a child Appendix A. in positive terms (extent to which the can be educated with his or her Regarding the commenter’s request child ‘‘will’’ participate with nondisabled peers; and if the team that the LEA (1) list obstacles to the nondisabled children). Commenters also determines that the child cannot child’s full, effective participation in the stated that documenting what will not participate full time with nondisabled general curriculum, and (2) justify the happen is burdensome paperwork. children in the regular classroom and in use of a resource room instead of Discussion: As used in § 300.347(a)(3), the other activities described in supports in the regular classroom, no the term ‘‘on behalf of the child’’ § 300.347(a)(3)(ii), the IEP must include further regulation will be provided. includes, among other things, services a statement that explains why full Parents are equal members of their that are provided to the parents or participation is not possible. child’s IEP team, and can participate in teachers of a child with a disability to If (for example) a child needs speech- the discussion about whether there are help them to more effectively work with language pathology services in a any obstacles to ensuring the child’s full the child. For example, as used in the separate setting two to three times a and effective participation in the general definition of ‘‘related services’’ under week, but will otherwise spend full time curriculum. In any case in which the § 300.24, the term ‘‘ ‘parent counseling with nondisabled children in the parents are not satisfied with the and training’ means (i) Assisting parents activities described in § 300.347(a)(4), in understanding the special needs of the ‘‘explanation’’ would require only outcome of the IEP meeting, they have their child * * * and (iii) Helping the statement described in the preceding avenues available to them under both [them] to acquire the necessary skills sentence. A similar explanation would the Act and regulations for redressing that will allow them to support the be required for any other child with a their concerns. implementation of their child’s IEP or disability who, in the judgement of the See comments and discussion in IFSP.’’ IEP team, will not participate on a full § 300.550 related to children with Supports for school personnel could time basis with nondisabled children in significant cognitive disorders. also include special training for a the regular class. Thus, while the IEP Changes: Section 300.347(a)(2)(i) has child’s teacher. However, in order for needs to clearly address this situation, been revised to clarify that ‘‘general the training to meet the requirements of the required explanation does not have curriculum’’ is the same curriculum as § 300.347(a)(3), it would normally be to be burdensome. for nondisabled children and to targeted directly on assisting the teacher Changes: None. recognize that a general curriculum is to meet a unique and specific need of Comment: A few comments were not available for all preschool-aged the child, and not simply to participate received on § 300.347(a)(5) (related to children. in an inservice training program that is State or district-wide assessments), Comment: With respect to the generally available within a public including requesting that: (1) the provision in § 300.347(a)(3) (related to agency. regulations clarify that if the individual describing services to be provided to a In order to ensure full access to the modifications necessary for a child to child, or on behalf of the child * * *), general curriculum, it is not necessary participate in the assessment are not a few commenters requested to amend § 300.347(a)(3)(ii) to clarify known at the time of the IEP meeting, clarification of the term ‘‘on behalf of that a child’s involvement and progress a subsequent meeting be required to the child.’’ Commenters also in the general curriculum must be ‘‘to make this determination, as long as the recommended that, in the ‘‘statement of the maximum extent appropriate to decision is made before the assessment program modifications or supports for needs of the child.’’ The is conducted; and (2) an alternate school personnel,’’ the regulation clarify individualization of the IEP process, assessment not be construed as an that ‘‘staff training’’ is one form of together with the new requirements exemption and a separate assessment program support, and added that a related to the general curriculum, system, but, rather, that the provision in necessary support service for staff can should ensure that such involvement § 300.347(a)(5)(ii)(B) be amended to often be obtained more easily if it is and progress is ‘‘to the maximum extent require a statement of how the child identified as an IEP service. appropriate to the needs of the child.’’ will be included in the State or district- A few commenters recommended The provision in § 300.347(a)(3)(ii) wide assessment program with an that, in order to ensure full access to the related to participation in alternative assessment. general curriculum, § 300.347(a)(3)(ii) ‘‘extracurricular and other nonacademic Discussion: If the individual be amended to state that a child’s activities’’ is statutory. modifications necessary for a child to involvement and progress in the general The provision in § 300.347(a)(4) (that participate in the assessment are not curriculum be ‘‘to the maximum extent requires a statement of the extent to known at the time of the IEP meeting, appropriate to the needs of the child.’’ which a child with disabilities will not it would be necessary for a subsequent Other commenters requested that the participate with nondisabled children) meeting to be conducted early enough to provision in § 300.347(a)(3)(ii) (related is also a statutory requirement and ensure that any necessary modifications to a child’s participation in cannot be deleted. The basic principle are in place at the time the assessment extracurricular activities) be deleted underlying this requirement is that is administered. It is not necessary, because it is inconsistent with Part B. children with disabilities will be however, to add a regulation to address Commenters also requested that the educated in the regular education this matter. regulations clarify that participation in environment along with their The IDEA Amendments of 1997 extracurricular activities is not a part of nondisabled peers, and that these require that all children with disabilities the child’s educational program, and children are only removed from that be included in general State and

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00189 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12594 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations district-wide assessment programs, with gives no indication of what is right or curriculum, the expected impact on the appropriate accommodations, where wrong; and (4) include a provision length and scope of the IEP from such necessary. (§ 300.138). In some cases, requiring action to be taken if participation and from discussing alternate assessments may be necessary, satisfactory progress in not being made. teaching methodologies, and reporting depending on the needs of the child, Discussion: It is not appropriate or to parents) are addressed in the and not the category or severity of the necessary to include a definition of following sections of this analysis. Some child’s disability. ‘‘progress report’’ because that term is commenters requested that all notes be Changes: None. not used in either the statute or these deleted. Other commenters requested Comment: Several comments were final regulations. The provision in that Notes 2, 3, and 4 be incorporated received on § 300.347(a)(6) (related to § 300.347(a)(7)(ii) is incorporated into the regulations. A few commenters the projected date for beginning services verbatim from the statute. No additional recommended that for Notes 2 and 3, and modifications and their anticipated burden was added by the NPRM or the regulations define the terms frequency, location, and duration). A these final regulations. ‘‘adaptations,’’ ‘‘modifications,’’ few commenters requested that the term Under the statute and regulations, the ‘‘accommodations,’’ and ‘‘adjustments.’’ ‘‘anticipated’’ be defined so that it does manner in which that requirement is Regarding Note 3, some of the not diminish an LEA’s obligation to implemented is left to the discretion of commenters recommended deleting the provide services. Some commenters each State. Therefore, a State could elect idea that the general curriculum is not requested that the term ‘‘location’’ be to ensure that report cards used for intended to significantly increase the defined as the placement on the children with disabilities contain size of the IEP. One commenter continuum and not the exact building information about each child’s progress recommended replacing the word where the IEP service is to be provided, toward meeting the child’s IEP goals, as ‘‘accessing’’ with ‘‘fully participating especially if the service is not available suggested by commenters, but would in’’ the general curriculum. The in the LEA and must be provided via not be required to do so. commenter stated that the language in contract. Other commenters similarly With respect to the frequency of the note (from the House Committee stated that a note be added clarifying reporting, the statute and regulations are Report) could be used by LEAs as a that ‘‘location’’ means the general both clear that the parents of a child basis for limiting the use of the IEP as setting in which the services will be with a disability must be regularly a tool for enabling children with provided and not a particular school or informed of their child’s progress at disabilities to participate fully in the facility. least as often as parents are informed of general curriculum. Other commenters Discussion: Use of the term their nondisabled children’s progress. recommended that Note 3 be deleted. ‘‘anticipated’’ to diminish the agency’s Requiring a ‘‘detailed written Discussion: The IDEA Amendments of obligation to provide services would be narrative’’ of how a child is progressing 1997 emphasize providing greater inconsistent with the requirements of toward meeting the IEP objectives, as access by children with disabilities to this part. Moreover, a public agency suggested by a commenter, could add an the general curriculum and to could not alter the basic nature and unnecessary burden. However, the educational reforms, as an effective scope of the child’s IEP without commenter’s concern about using a means of ensuring better results for reconvening the child’s IEP team. grade to designate a child’s progress in these children. Both the Senate and The ‘‘location’’ of services in the meeting the IEP objectives in some cases House Committee Reports on Pub. L. context of an IEP generally refers to the may be valid because a grade does not 105–17 state that: type of environment that is the always lend itself to sufficiently appropriate place for provision of the describing progress toward the annual The Committee wishes to emphasize that, service. For example, is the related once a child has been identified as being goals. The statute and regulations make eligible for special education, the connection service to be provided in the child’s clear that a written report is sufficient, between special education and related regular classroom or in a resource room? although in some instances, an agency services and the child’s opportunity to Changes: None. may decide that a meeting with the experience and benefit from the general Comment: With respect to parents (which does not have to be an education curriculum should be § 300.347(a)(7) (related to a statement of IEP meeting) would be a more effective strengthened. The majority of children how a child’s progress toward annual means of communication. identified as eligible for special education goals will be measured and reported), The agency must ensure that whatever and related services are capable of commenters requested that a definition participating in the general education method, or combination of methods, is curriculum to varying degrees with some of ‘‘progress report’’ be added; and adopted provides sufficient information adaptations and modifications. This stated that the provision is burdensome, to enable parents to be informed of (1) provision is intended to ensure that and should be changed to require that their child’s progress toward the annual children’s special education and related report cards for children with goals, and (2) the extent to which that services are in addition to and are affected by disabilities contain information about progress is sufficient to enable the child the general education curriculum, not the child’s progress in meeting annual to achieve the goals by the end of the separate from it. (S. Rep. No. 105–17, p. 20; H.R. Rep. No. 105–95, p. 99 (1997)) goals. year. Commenters also requested that the Generally, reports to parents are not These are important principles to regulations (1) clarify the manner and expected to be lengthy or burdensome. keep in mind when implementing the frequency in which parents are kept The statement of the annual goals and new IEP requirements. However, in light informed of their child’s progress; (2) short term objectives or benchmarks in of the general decision to remove notes clarify the extent to which this the child’s current IEP could serve as from the final regulation, Note 2 would requirement can be met in writing as the base document for briefly describing be removed. opposed to conducting an IEP meeting; the child’s progress. The concepts in the committee reports (3) require a detailed written narrative Changes: None. cited in Note 3 also are valid. The new report of how a child is progressing Comment: A number of comments focus of the IEP is intended to address toward meeting IEP objectives instead of were received on Notes 2 through 5 the accommodations and adjustments using a grade, because a grade is related (which focus on matters related to the necessary to enable children with to the system and not the child, and child’s participation in the general disabilities to be able to participate in

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00190 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12595 the general curriculum to the maximum Comment: Several comments were provision in § 300.347(b)(1), including extent appropriate. Although the annual received on Note 4 (related to teaching requests that the regulations: (1) clarify goals and short term objectives (and the and related services methodologies). A what is meant by transition services for service accommodations described few commenters expressed support for 14 year-old students; (2) add ‘‘daily above) would be basic components of Note 4, and stated that the note should living’’ and independent living’’ to the the IEP, it would not be appropriate for be added to the regulations. Other example in paragraph (b)(1)(i) because the IEP to include specific details commenters requested that the note be transition is much broader than related to the general curriculum itself deleted. Some of these commenters employment; and (3) require that (and to daily lesson plans). stated that, in some instances, it may be transition plans analyze and report the Generally, the overall length of the appropriate to include teaching methods prospect of a student benefiting from IEP should not be greatly affected by and approaches in the IEP, and added higher education and if so what kind; including relevant information about that when methodologies differ and if vocational education is the accommodations and adjustments significantly, one approach may be recommended and not general higher needed by the child, along with the appropriate while others are education, the transition plans specify other required information. But the IEP inappropriate, based on the unique the reason why general higher education should provide sufficient information needs of each individual child. Other is not a meaningful alternative. necessary to enable parents, regular commenters pointed out that A few commenters recommended that education teachers, and all service methodologies are an inherent part of language be added to more clearly providers to understand what is the definition of special education, and distinguish between ‘‘a statement of the required to effectively implement its it would be inconsistent with the transition service needs’’ of a student at provisions. However, consistent with definition to not include them in the age 14, and ‘‘a statement of needed the general decision made with respect IEP. transition services’’ at age 16. The to notes, Notes 2 and 3 would be With respect to Note 5 (i.e., that the commenters included a proposed deleted. reporting provision in definition that requires the Because Note 3 has been deleted, it is § 300.347(a)(7)(ii), related to the child’s identification of targeted post-school not necessary to replace the word progress on the annual goals, is activities. ‘‘accessing’’ with ‘‘fully participating intended to be in addition to regular Discussion: The terms ‘‘a statement of in’’ the general curriculum. Clearly, the reporting for all children), a few the transition service needs’’ and ‘‘a intent of the IDEA is full participation commenters expressed appreciation for statement of needed transition services’’ of each child with a disability in the the provision. Some commenters stated are incorporated verbatim from the that the note be deleted. Other general curriculum to the maximum statute. The purpose of ‘‘a statement of commenters recommended that the note extent appropriate to the needs of child; the transition service needs’’ is to focus either be deleted, or changed to state and the IDEA Amendments of 1997, as on the planning of a student’s courses that the provision in § 300.347(a)(7)(ii) reflected in these final regulations, have of study during the student’s secondary may be incorporated as part of the given greater emphasis to that intent. school experience (e.g., whether the regular reporting to all parents. It is not necessary to include a Discussion: In some cases, it may be student will participate in advanced regulatory definition of the terms appropriate to include teaching methods placement or vocational education ‘‘adaptations,’’ ‘‘modifications,’’ and approaches in a child’s IEP. As used courses). ‘‘accommodations,’’ and ‘‘adjustments.’’ in the definition of ‘‘special education’’ With respect to a statement of needed The terms are essentially self- under § 300.26, the term ‘‘specially- transition services, the focus is on the explanatory, and may overlap to some designed instruction’’ means ‘‘adapting, student’s need for such services as he or extent. as appropriate to each eligible child she moves from school to postschool Certain changes may need to be made under this part, the content, experiences, and any linkages that may in a regular education classroom to methodology, or delivery of services be needed. These statements, as with make it possible for a child with a ** * (i) to meet the unique needs of an the other components of the IEP, must disability to participate more fully and eligible child under this part that result be individualized in accordance with effectively in general curricular from the child’s disability * * *’’ the needs of the student. activities that take place in that room. In general, however, specific day-to- The Department has invested These changes could involve (for day adjustments in instructional considerable resources in providing example) providing a special seating methods and approaches that are made technical assistance in the area of arrangement for a child; using by either a regular or special education transition services, and has a number of professional or student ‘‘tutors’’ to help teacher to assist a disabled child to technical assistance resources available the child; raising the level of a child’s achieve his or her annual goals would to public agencies in implementing desk; allowing the child more time to not normally require action by the these statutory provisions. complete a given assignment; working child’s IEP team. Changes: None. with the parents to help the child at With respect to Note 5 (that the Comment: A number of comments home; and providing extra help to the reporting provision in § 300.347(a)(7)(ii) were received related to the provision in child before or after the beginning of the is intended to be in addition to regular § 300.347(b)(2), that requires that if the school day. reporting for all children), as addressed IEP team determines that services are ‘‘Modifications’’ or earlier in this attachment, the report not needed in one or more of the areas ‘‘accommodations’’ could involve described in § 300.347(a)(7)(ii) may be specified in the definition of transition providing a particular assistive incorporated in the regular reporting to services, the IEP must include a technology device for the child, or all parents. Therefore, Note 5 is not statement to that effect and the basis modifying the child’s desk in some needed. upon which the determination was manner that facilitates the child’s ability Changes: Notes 4 and 5 have been made. These commenters recommended to write or hold books, etc. deleted. that the provision be deleted because it Changes: Notes 2 and 3 have been Comment: Several comments were is not statutory, not needed, and adds removed. received on the transition services unnecessary and excessive paperwork.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00191 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12596 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

Discussion: It is appropriate to remove does the LEA still have to notify the Another recommendation made by the provision in § 300.347(b)(2) because, parents. commenters was that private school as stated by the commenters, the Another commenter requested that staff should not be required to attend provision is not statutory and adds the regulations allow a student to the IEP meeting required under unnecessary paperwork. authorize the continued participation of § 300.349(a)(2), but that the IEP team That provision was based on the the student’s parent or guardian after should be allowed to confer with private definition of ‘‘transition services’’ that the age of majority to develop, review, school staff after the meeting. One was in effect prior to June 4, 1997, and or revise an IEP, and added that if the commenter asked whether if the private did not account for the change in the student authorizes parent participation, school initiates an IEP meeting, all of definition of ‘‘transition services’’ that the parent should be considered a the individuals identified in § 300.344 was made by the IDEA Amendments of member of the IEP team. must participate. 1997. Discussion: The provision at Another commenter was concerned The ‘‘prior law’’ definition mandated § 300.347(c) is statutory. Whether or not that this section implies that the team the inclusion of specific components rights transfer at the age of majority has predetermined placement, and under the coordinated set of activities depends on State law, and, consistent recommended requiring that a second described in the definition. In with § 300.517, whether or not the meeting should be held with private recognition that all students with student has been determined school staff to determine if they could disabilities may not require services in incompetent under State law. State law provide the services. all of the mandated areas, the final also determines what constitutes the age One commenter also indicated that regulations implementing that provision of majority in that jurisdiction. The § 300.349(b)(2)(ii) is confusing, because (published in 1992) included a discussion concerning § 300.517 in this it suggests that if either the parent or public agency disagrees with the statement that ‘‘If the IEP team attachment provides a fuller explanation changes proposed by the private school, determines that services are not needed of the provision concerning the transfer those changes will not be implemented. in one or more of the areas specified in of rights at the age of majority. This commenter also questioned why [the definition of transition services], Generally, a public agency will satisfy either party should have veto authority, the IEP must include a statement to that § 300.347(c) if, at least one year before and requested clarification regarding the effect, and the basis upon which the the student reaches the age of majority responsibility to request a hearing. determination was made.’’ However, under State law, the agency informs the However, another commenter objected while the new definition of ‘‘transition student of the rights that transfer at the that this section gives a private school services’’ added by Pub L. 105–17 age of majority (and includes a veto authority over a decision of the IEP includes the same components as in statement to that effect in the IEP). If the team. prior law, the provision requiring the public agency receives notice of the One commenter also objected to the inclusion of all components in a student’s legal incompetency, so that no use of ‘‘must ensure’’ in § 300.349(a) student’s IEP was removed. rights transfer to the student at the age and (b), and recommended that more Changes: § 300.347(b)(2) has been of majority, the IEP need not include qualified language be substituted. deleted. this statement. Another commenter requested Comment: Comments were received The composition of the IEP team is clarification that parents have the right related to Notes 1, 6, and 7 following discussed in § 300.344. There is nothing to be reimbursed for costs incurred as a § 300.347 of the NPRM, all of which in the regulation that would prevent a result of their participation at IEP focus on the transition services student to whom rights have been meetings associated with their requirements. Some commenters transferred at the age of majority from children’s public placements at private recommended that all three notes be exercising his or her discretion under schools or facilities. deleted. Other commenters § 300.344(a)(6) to include in the IEP Discussion: Section 612(a)(10)(B) of recommended that Note 7 be modified team a parent as an individual with the Act makes clear that, as a condition to encourage public agencies to begin knowledge regarding the child. of eligibility for receipt of Part B funds, transition services before age 14. A few Changes: None. States must ensure that children with commenters stated that Note 7 is not disabilities placed in or referred to needed because the regulations are Private School Placements by Public Agencies (§ 300.349) private schools or facilities by public already clear. agencies receive special education and Discussion: Consistent with the Comment: Some commenters related services, in accordance with an Department’s decision to not include suggested that § 300.349(a) be amended IEP, at no cost to their parents. This notes in the final regulations, the notes to require a public agency to conduct a statutory requirement substantially should be deleted. subsequent IEP meeting before or reflects prior law in this area. Section Changes: Notes 1, 6, and 7 have been shortly after actual enrollment with the 300.401 also provides that IEPs for deleted. participation of a representative of the children with disabilities who are Comment: With respect to the transfer private school. publicly placed at or referred to private of rights at the age of majority A few commenters objected to the schools must meet the requirements of (§ 300.347(c)), one commenter stated requirement in § 300.349(a)(2) that the §§ 300.340–300.350. that the provision should be deleted. public agency ensure that a Because these disabled children are Another commenter stated that there is representative of a private school or publicly-placed or referred to private general confusion about this provision, facility at which a disabled student is schools or facilities as a means of especially when parents are unable publicly-placed or referred must attend ensuring that they are provided FAPE, financially or unwilling to seek legal the initial IEP meeting initiated by the it would not be appropriate to change guardianship for their child, and added public agency. These commenters the regulatory language in the manner that schools need guidance. A recommended that a private school suggested by these commenters. The commenter asked, how do LEAs representative be invited but not be regulation gives public agencies and determine which students get transfer forced to attend, since distance could private schools and facilities some rights at age 18; and once transferred, prevent that individual from attending. flexibility in the manner in which IEP

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00192 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12597 meetings are conducted; however, there whether the public agency initiates IEPs for all children with disabilities in is no need to require additional meetings for the purpose of reviewing the LEA’s jurisdiction who are placed meetings, since these meetings can be and revising IEPs of children with by their parents at private schools, initiated by the public agency or disabilities publicly-placed at private regardless of whether these children requested by the private school or schools or facilities, the public agency receive services from the public agency. facility at any time. must ensure that the child’s IEP is Another commenter requested that the Regarding concerns about reviewed at least once every twelve requirement for IEPs for children with participation of representatives of months, and that the child’s placement disabilities who are publicly-placed at private schools at meetings to develop at the private school or facility is in private schools be removed, and that the child’s IEP, § 300.349(a)(2) provides accordance with that child’s IEP. requirements regarding service plans for that before a child with a disability is If the public agency disagrees with children with disabilities placed by placed or referred to a private school or changes proposed by the private school, their parents at private schools be facility, a representative of that private the public agency nevertheless remains substituted and moved to Subpart D. school must be invited to the meeting to responsible for ensuring that the student Discussion: There is no statutory develop the student’s IEP. However, if receives an appropriate program. If the authority to require public agencies to the private school representative is private school or facility is unwilling to develop IEPs for every child with a unable to attend in person, the public provide such a program, the public disability in their jurisdiction placed by agency must use other methods to agency either must ensure that the their parents at a private school, ensure that individual’s participation at student’s IEP can be implemented at regardless of whether that child receives the meeting, including individual or that or another private school or facility, services from the LEA. Section conference telephone calls. Therefore, or must develop an appropriate public 612(a)(10)(A) of the Act requires States this regulation does not require placement for the child to address that to make provision for the participation participation of a private school child’s needs. In all instances, the of private school children with representative if that individual is child’s placement at the private school disabilities in programs assisted or unable to attend the IEP meeting or facility must be based on the child’s carried out under this part, through the initiated by the public agency. IEP, and that placement must be the provision of special education and If a public agency initiates an IEP LRE placement for the child. related services, to the extent consistent meeting in connection with a disabled The commenter’s assumption that with their number and location in the child’s placement at or referral to a normal due process rights would apply State. private school or facility, the is correct. The due process rights of Part Because private school children with requirements of § 300.344 regarding B are available to parents and public disabilities do not have an individual participants at meetings apply. educational agencies to resolve issues entitlement to services under Part B, it However, after the disabled child enters such as the appropriateness of the would be inconsistent with the statute the private school or facility, child’s program at the private school, to require public agencies to develop § 300.349(b)(1) provides that the private but representatives of private schools or service plans for those private school school or facility, at the public agency’s facilities at which children with children with disabilities who do not discretion, may initiate and conduct disabilities are publicly placed or receive services from the public agency. meetings for purposes of reviewing or referred do not have due process rights. However, the commenter’s suggestion revising the child’s IEP. Section 300.344 Regarding a parent’s right to that proposed § 300.350 should be applies to all IEP meetings for which a reimbursement for costs associated with deleted and that a requirement for public agency is responsible, including their child’s private school placement, service plans for children with those conducted by a private school or § 300.401 reflects the statutory disabilities parentally-placed at private facility for a publicly-placed child with requirements of section 612(a)(10)(B) schools should be substituted and a disability. and requires that a disabled student’s moved to Subpart D is reasonable. If a public agency exercises its placement at a private school by a Since private school children with discretion under § 300.349(b)(1) to public agency must be at no cost to the disabilities are not entitled to receive permit the private school or facility to child’s parents, and public agencies FAPE in connection with their private initiate and conduct certain IEP must ensure that all of the rights school placements (See § 300.403(a)), it meetings, § 300.349(b)(2) specifies that guaranteed by Part B are afforded to is misleading to use the term IEP to refer the public agency is still responsible for publicly-placed children with to the plans that are developed to serve ensuring that the parents and a public disabilities and their parents. The ‘‘at no them. IEPs must contain, among other agency representative are involved in cost’’ requirements of the Act also elements, the full range of special those IEP decisions and agree to any would require public agencies to education and related services provided changes in the child’s program before reimburse parents for transportation and to children with disabilities under these they are implemented. other costs associated with their regulations. Section 300.349(b) does not afford participation at IEP meetings conducted By contrast, § 300.455(b) makes clear veto authority either to the parents and in a geographic area outside of the that a private school child with a the public agency, or to the private jurisdiction of the LEA, and such disability receives only those services school, if there is a disagreement about expenditures traditionally have been that an LEA determines it will provide the IEP for the child to be implemented considered the responsibility of the that child, in light of the services that at the private school. This is equally public agency. See discussion under the LEA has determined, through the true for IEPs developed for public § 300.24 of this attachment. requirements of §§ 300.453–300.454, it placements of children with disabilities Changes: None. will make available to private school at private schools. children with disabilities. Further, § 300.349(c) makes clear that Children With Disabilities in Therefore, proposed § 300.350 should the public agency is ultimately Religiously-Affiliated or Other Private be deleted and its content incorporated responsible for ensuring that the Schools in § 300.454 with appropriate revisions, publicly-placed disabled student Comment: One commenter suggested and § 300.455(b) should be revised to receives FAPE. Therefore, regardless of that this section be amended to require reflect a new requirement for service

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00193 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12598 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations plans for those private school children and their responsibility regarding its either is unable or unwilling to establish with disabilities in the LEA’s implementation. Because the and maintain programs of FAPE for jurisdiction that the LEA has elected to clarification of this issue that was children with disabilities. This serve in light of the services it makes previously included in the note to this regulatory provision implemented available to its private school children section is essential to the proper section 614(d)(1) of prior law which with disabilities in accordance with the implementation of the Act’s IEP contained the reference to LEAs that requirements of §§ 300.453–300.454. requirements, a statement regarding the were unwilling to establish and Changes: Proposed § 300.350 has been responsibilities of public agencies and maintain programs of FAPE. However, deleted, and a new § 300.454(c) has teachers to make good faith efforts to since these words have not been been added to specify LEA ensure that a child achieves the growth retained in section 613(h)(1) with regard responsibilities regarding development projected in his or her IEP has been to an LEA’s or State agency’s failure to of service plans for private school included at the conclusion of this establish and maintain programs of children. Section 300.455(b) has been section. FAPE, yet remain in the statute with changed to reflect the new provision In order to meet the new emphasis in regard to an LEA’s failure to consolidate regarding service plans for private the Act that children with disabilities be with other LEA’s in applying for Part B school children with disabilities. involved in and progress in the general funds, it is not appropriate to make the curriculum and be held to high IEP—Accountability (§ 300.350) achievement standards, the IEP change requested by this comment. Comment: Some commenters agreed provisions must be effectively utilized Consistent with the general decision with this regulation, while other to ensure that appropriate adjustments to not include notes in these final commenters recommended that the note can be made to address performance regulations, the note following § 300.360 either be revised or deleted. Some issues as early as possible in the should be deleted. However, the commenters believe that both the process. substance of the note related to the section and note are inconsistent with This section does not limit a parent’s SEA’s responsibility to ensure the Congressional findings on low right to complain and ask for revisions provision of FAPE if an LEA elects not achievement and new performance of the child’s IEP or to invoke due to apply for its Part B funds, or the standards. process procedures if the parent feels amount of Part B funds is not sufficient Commenters also recommended that that these efforts are not being made. to provide FAPE should be added to the the regulation be strengthened to clarify Further, this section does not prohibit a text of the regulations because of its (1) the district’s obligation to monitor, state or public agency from establishing importance in ensuring that the review and revise the IEP if it is not its own accountability systems purposes of this part are appropriately having the desired impact on the regarding teacher, school or agency implemented. student’s progress; (2) the parent’s performance if children do not achieve responsibility to request an IEP meeting the growth projected in their IEPs. A new paragraph also should be when progress reports indicate that the Changes: The note to this section has added to clarify, by referencing child’s IEP is not effective; (3) the extent been removed. Section 300.351 is § 300.301, that the SEA may use of the teacher’s responsibility compared redesignated as § 300.350 of these final whatever funding sources are available with that of the parent and child; and regulations, and the substance of the in the State to carry out its (4) that public agencies and personnel note has been added to this section. responsibilities under § 300.360. will not be held accountable if a child Use of LEA Allocation for Direct Regarding the note following does not achieve the growth projected in Services (§ 300.360) § 300.360, it is important to point out annual goals and benchmarks or that the language that uses objectives if they were implementing an Comment: Very few comments were ‘‘handicapped’’ instead of disabled was IEP that provided the child appropriate received regarding this section. One taken verbatim from the original instruction, services and modifications. comment recommended that the words regulations for this program issued in Other commenters were concerned ‘‘or unwilling’’ be added to 1977. Included in this note were direct about the potential negative effect of § 300.360(a)(2) to correspond to the quotations from the Department’s this section on the effective language of § 300.360(a)(3) of the regulation implementing Section 504 of implementation of transition services. current regulations. Another comment the Rehabilitation Act of 1973 at 34 CFR Discussion: Section 300.351 has been asked that the language in the second Part 104, which has not yet been included in the IEP provisions of the paragraph in the note following updated to substitute the term Part B regulations since those § 300.360 be updated to substitute the ‘‘disabled’’ or ‘‘disability’’ for the term regulations first were issued in 1977. It word ‘‘disabled’’ for the word ‘‘handicapped’’ or ‘‘handicap.’’ While continues to be necessary to make clear ‘‘handicapped.’’ This comment also the term ‘‘handicapped’’ is not that the IEP is not a performance requested that a similar change be made consistent with current statutory contract and does not constitute a to the note following § 300.552. language, it is not appropriate to modify guarantee by the public agency and the Discussion: Section 300.360(a) the quoted language in the notes until teacher that a child will progress at a essentially incorporates the text of the the terminology in the Section 504 specified rate. Despite this, public current regulatory provision verbatim, regulation is updated. agencies and teachers have continuing except with the minor modifications obligations to make good faith efforts to contained in section 613(h)(1) of Pub. L. Changes: The substance of the note assist the child in achieving the goals 105–17. The legislative history makes relating to SEA’s responsibilities to and objectives or benchmarks listed in clear that § 613(h)(1) has been ‘‘retained ensure FAPE when the LEA elects not the IEP, including those related to without substantive alteration’’ from to receive its Part B funds, or there are transition services. prior law. (S. Rep. No. 105–17 at 15). It not sufficient funds to ensure the In addition, it should be noted that is true that under § 300.360(a)(3) of the provision of FAPE has been added to teachers and other personnel who must regulations, an SEA may use funds that the text of the regulation. The note has carry out portions of a child’s IEP must would have gone to an LEA for direct been deleted. A reference is made to be informed about the content of the IEP services if the SEA finds that the LEA other funding sources under § 300.301.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00194 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12599

Use of SEA Allocations (§ 300.370) evaluation, and continuing education of established and implemented includes Comment: Several favorable hearing officers and mediators’’ and to the responsibility to ensure that comments were received regarding this ensure that they receive pre-service impartial due process hearing officers section. One comment supported training and at least annual in-service are appropriately trained. In addition, paragraph (a)(4), which permits the use training on special education law and § 300.370 makes clear that one of the of State agency allocations to assist promising practices, materials and support services for which the Part B LEAs with personnel shortages. One technology. funds reserved for State level activities A number of commenters indicated may be expended is the training of comment requested that a new that, in order for personnel to be hearing officers and mediators. paragraph (c) be added to reflect the ‘‘qualified’’ under this part or a State’s The comments regarding ensuring statutory requirement ‘‘that LEAs CSPD, ‘‘the personnel must meet the that personnel meet State licensing or participate in the priority setting for the State’s legal licensing or certification certification requirements or are allocation of these funds.’’ One requirements’’ and ‘‘must have the skills otherwise qualified under this part are comment requested that a note be added and knowledge necessary to ensure that addressed elsewhere in this attachment following this section to clarify that personnel are qualified to work with in the discussions of qualified personnel direct services ‘‘can include using the children with disabilities.’’ Another and personnel standards. With regard to State allocation of Part B funds to help comment sought clarification regarding the training of regular education LEAs cover unexpected and use of Part B funds for the training of personnel, consistent with a State’s extraordinary costs of providing FAPE regular education personnel. CSPD responsibilities, the State must to a child with a disability in any setting Consistent with the emphasis on ensure an adequate supply of special along the continuum.’’ implementation, one comment education, regular education, and Discussion: There is no statutory recommended that § 300.380(a)(4) be related services personnel. Further, the requirement that would require a State amended to require that a State’s CSPD training of regular education personnel to obtain input from LEAs in setting be updated at least every two years, is necessary to the proper priorities for how the State agency instead of at least every five years, as administration of the Act and allocation should be spent. So long as stated in the NPRM, ‘‘and as often as the regulations, including carrying out the the expenditures are consistent with the quality of education for children with Act’s LRE provisions, and personnel requirements of this part, States have disabilities within the State may development is an appropriate discretion to determine the manner in require.’’ The comment also objected expenditure of funds under this part which the funds are allocated. that the regulation provides that States and is one of the support services for Regarding the suggestion that a note that have a State Improvement Plan which the State level allocation under be added following § 300.370, consistent under section 653 of the Act have met § 300.370 may be expended. with the decision to not include notes their CSPD requirements. Therefore, the Finally, there is nothing in this part in these regulations, a note will not be comment recommended that that would prevent a State from added. However, the State agency § 300.380(b) be deleted, and instead be updating its CSPD more frequently than allocation may be used for direct and replaced with the last paragraph of the at least every five years if the State support services, including the note following § 300.135, which gives a chooses to do so. Therefore, there is no expenditure described in this comment. State that has a State Improvement Plan reason to incorporate the language from Nothing in this part would preclude an the option of using it to meet its CSPD, the second paragraph of the note SEA from using its State allocation to if it chooses to do so. following § 300.135 in place of assist an LEA in defraying the expenses Discussion: States must ensure that § 300.380(b), since § 300.380(b) gives a of a costly placement for a student with mediators and hearing officers are State that has a State Improvement plan a disability if it is determined that such appropriately trained and have the under section 653 the option of using it a placement is necessary to ensure the requisite knowledge and expertise to satisfy its CSPD obligations, if the provision of FAPE to that disabled regarding the requirements of this part. State chooses to do so. student. Otherwise, the due process rights of Changes: The section has been retitled Changes: No change has been made in children with disabilities and their ‘‘General CSPD requirements.’’ response to these comments. See parents may not be adequately discussion of comments received under safeguarded under this part. Adequate Supply of Qualified Personnel § 300.712 regarding a change to With respect to mediators, section (§ 300.381) § 300.370. 615(e)(2)(A)(iii) requires that SEA or Comment: Only a few comments were LEA procedures for mediation ensure received regarding this section. Some General CSPD Requirements (§ 300.380) that the mediation is conducted by a commenters requested that a provision Comment: A number of comments qualified and impartial mediator who is be added to § 300.381(b) ‘‘requiring the were received regarding the recruitment trained in effective mediation State to describe the strategies it will and training of hearing officers included techniques. Section 615(e)(2)(C) requires use to address personnel vacancies and as part of CSPD. One comment the State to maintain a list of shortages’’ identified under that section. recommended that § 300.380(a)(2) individuals who are qualified mediators Another comment recommended that regarding an adequate supply of and knowledgeable in laws and this section highlight shortages of qualified special education, regular regulations relating to the provision of personnel to do behavioral assessments education, and related services special education and related services to and programming. Another comment personnel be expanded to include children with disabilities. recommended that additional language hearing officers and mediators. Under current regulations, public be included in § 300.381 requiring Some commenters recommended that agencies must maintain a list of additional recruitment strategies and § 300.381 include a provision requiring impartial hearing officers and their fiscal arrangements to ensure an each state ‘‘to establish a council of qualifications. Further, the SEA’s adequate supply of qualified personnel. parents, educators, attorneys, hearing responsibility under section 615 of the Discussion: It is acknowledged that it officers, and mediators to develop and Act to ensure that the procedural is very important to ensure that oversee the recruitment, training, safeguard requirements of the Act are appropriately-trained and

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00195 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12600 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations knowledgeable individuals conduct training of parents, special education appropriate’’ in this regulation ensures behavioral assessments of children with and related services providers, and States have flexibility in this area. disabilities under this part. However, general education personnel. Another The discussion of the role of hearing the obligation under § 300.381 is a comment recommended that this officers and mediators in response to general obligation to analyze State and section be expanded to include joint comments on § 300.380 also applies to local needs for professional training of hearing officers and the suggestion on joint training of development, including areas in which mediators with parents and education parents and special education and there are shortages, to ensure an personnel. related services and general education adequate supply of qualified special One comment recommended that this personnel required by § 300.382(j) of education, regular education, and section be amended ‘‘to require reports these regulations. It is important to related services personnel under this to the Department by the SEA bi- point out that there is nothing in this part. Therefore, the regulation does not annually, including a survey of parents part that would preclude a State from identify specific categories of personnel. of students with IEPs regarding the including hearing officers and mediators In addition, States already have the effectiveness of the strategies and other in the joint training activities if it ability to develop additional tools being taught to teachers,’’ and that chooses to do so. recruitment strategies and fiscal parents ‘‘should also be given the The comment’s suggestion for arrangements if they determine that they chance to state what tools they think additional reporting requirements has are needed to address their particular ought to be taught’’ to teachers. One not been accepted. While input from personnel needs. comment recommended that a note be parents regarding the effectiveness of added following this section to clarify personnel development strategies would Changes: None. that the assurance that regular education be useful, the Department is committed Improvement Strategies (§ 300.382) and special education personnel be to reducing paperwork burdens rather prepared means that ‘‘they must be than increasing them. Comment: One comment required to be prepared rather than recommended that the name of this Finally, with regard to training of simply ‘offered the opportunity.’ ’’ general education personnel, section be changed to ‘‘Comprehensive Discussion: There is no need to system strategies’’ to avoid confusion § 300.382(j) already requires the change the name of this section since it participation of these individuals in with Part D. Another comment is unlikely that, even if it were changed, recommended that the words ‘‘content joint training activities. it would reduce the potential for Changes: None. knowledge and collaborative skills’’ to confusion between CSPD meet the needs of infants and toddlers responsibilities under Part B and those Subpart D and children with disabilities be under Part D. While the delineation of Responsibility of SEA (§ 300.401) expanded to specify which skills are content and skills for personnel serving involved, and suggested that skills such infants and toddlers and children with Comment: Several commenters asked as instruction, behavioral management, disabilities is important, inherent in that § 300.401(a)(3) specify whether the communication, and collaboration be CSPD is the obligation of each State to standards that apply to private schools included. identify its particular personnel are limited to those necessary for the One comment expressed concern that development needs in light of factors comparable provision of special the section in the NPRM was not that are specific to each individual education and related services to those sufficiently strong to ensure that States State. The same is true with respect to provided in public agencies (for design their CSPD to ensure that core strategies and needs. The CSPD is one example, do private schools have to instructional and related needs of of several mechanisms that States have comply with SEA personnel standards children with disabilities are to ensure that children with disabilities beyond the qualifications needed to appropriately addressed. One comment receive appropriate instruction and provide special education and related requested clarification regarding which services consistent with the purposes of services). entity in the State is responsible for this part; therefore, the regulations do Discussion: Children with disabilities ensuring that the requirements of not specify which needs must be who are placed by public agencies in § 300.382 are met. One comment addressed through CSPD. private schools are entitled to receive suggested that the reference to References throughout this part to FAPE to the same extent as they would behavioral interventions in § 300.382(f) State mean the SEA, unless the State has if they were placed in a public school. should be changed to positive designated an entity other than the SEA FAPE includes not just the special behavioral supports to be more to carry out the functions of this part. education and related services that a consistent with other provisions of these Regarding § 300.380(f), that section is child with a disability receives, but also regulations. directed at the State’s enhancement of includes an appropriate preschool, Several comments were receive the ability of teachers and others to use elementary and secondary school regarding § 300.382(g), particularly strategies, including behavioral education in the State involved and regarding the use of the phrase, ‘‘if interventions. The regulatory language must be provided in conformity with appropriate.’’ One comment requested about behavioral interventions parallels the child’s IEP. clarification on how ‘‘appropriate’’ the language in section 614(d)(3)(B)(i) of The IDEA Amendments of 1997 made would be defined, as well as guiding the Act. a number of changes to reinforce the principles ‘‘for directing the adoption of It also should be pointed out that the importance of the participation of promising practices.’’ Another comment term behavioral interventions is a broad children with disabilities in the regular recommended that the phrase, ‘‘if term that includes positive behavioral education curricula and the need for appropriate’’ be eliminated when supports. Regarding the use of children with disabilities to have the referring to the State’s adoption of ‘‘appropriate’’ in § 300.382(g), a State’s opportunity to receive the same promising practices and materials and obligation to adopt promising substantive content as nondisabled technology. educational practices, materials, and students. These include provisions that One comment was particularly technology is dependent on the State’s tie IEP goals and objectives to the favorable about the requirement for joint needs. Hence, the use of the words ‘‘if regular education curriculum (section

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00196 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12601

614(d)(1)(A)), establish performance monitoring, curriculum and evaluation Changes: A change has been made to goals and indicators for children with standards. Several commenters § 300.403(a) to clarify that the disabilities consistent with those that a requested various expansions of provisions of §§ 300.450–300.462 apply State establishes for nondisabled § 300.402(c) such as adding a 120-day to children with disabilities placed children (section 612(a)(16)), and consultation period prior to adoption of voluntarily by their parents in private require the participation of children standards that apply to private schools, schools, even though the LEA made with disabilities in the same general and requiring consultation in all phases FAPE available to those children. State and district-wide assessments as of the development and design of SEA Comment: One commenter requested nondisabled students (section standards and compliance and that the regulations clearly state 612(a)(17)). monitoring procedures that apply to whether a public agency must evaluate Because of these changes in the these private schools. and develop an IEP for each private statute and the confusion that has At least one commenter requested a school child with a disability each year existed over whether all aspects of the new provision be added establishing a in order to avoid potential education provided by private schools mechanism for appeals to the Secretary reimbursement claims. to publicly-placed children with on standards that an SEA wants to apply Discussion: The new statutory disabilities had to meet the standards to private schools. provisions, incorporated in the that apply to public agencies, a change Discussion: The term ‘‘public agency’’ regulations in § 300.403 (c), (d), and (e), should be made in the regulations to as used in these regulations is defined provide that, as a general matter for ensure that children who are publicly- in § 300.22. The term ‘‘applicable children with disabilities who placed in private schools receive standards’’ is sufficient to encompass previously received special education services consistent with the SEAs’ the variety of standards that SEAs may and related services under the authority of a public agency, the claim for statutory obligation to ensure that FAPE have that apply to private schools reimbursement of a private placement is provided. SEAs must ensure that accepting public agency referrals of must be made before a child is removed public agencies that place children with children with disabilities for the from a public agency placement. It disabilities in private schools as a provision of FAPE. Further regulation would not be necessary for a public means of providing FAPE make sure about how States provide opportunities agency to develop an IEP that assumes that the education provided to those for private schools and facilities to a public agency placement for each publicly-placed children with participate in the development and private school child each year. LEAs do disabilities meets all standards that design of State standards that apply to apply to educational services provided have ongoing, independent them is inappropriate. States should by the SEA and LEA that are necessary responsibilities under the child find have flexibility in developing standards to provide FAPE. provisions of §§ 300.125 and 300.451 to With respect to personnel standards, that meet the requirements of the IDEA. locate, identify and evaluate all children for example, this would mean that all The standards that SEAs apply to with disabilities in their jurisdiction, personnel who provide educational private schools accepting public agency including children whose parents place services (including special education referrals of children with disabilities for them in private schools. This would and related services and non-special the provision of FAPE are, so long as include scheduling and holding a education services) meet the personnel they meet the requirements of Part B meeting to discuss with parents who standards that apply to SEA and LEA and its regulations, a State matter, so no have consented to an evaluation, the personnel providing similar services. appeal to the Secretary is appropriate. results of the evaluation, the child’s The responsibility for determining what Changes: None. needs, and whether the child is eligible constitutes the appropriate personnel Placement of Children by Parent if FAPE under Part B. (See §§ 300.320, and standard for any given profession or is at Issue (§ 300.403) 300.530–300.535.) discipline is a State and local matter In addition, the LEA must offer to and State and local officials have great Comment: Some commenters stated make FAPE available if the child is flexibility in exercising this that some school districts may be using enrolled in public school. A new responsibility. With regard to special this provision as the basis for denying evaluation need not be performed for education and related services special education services to children each private school child each year, but personnel, however, the regulations with disabilities voluntarily enrolled in evaluations for each private school child provide some parameters for how a private school and requested that the must meet the same evaluation personnel standards are developed. regulations make clear that these requirements as for children in public (See, §§ 300.21, 300.135, and 300.136). children are covered by the provisions agency placements, including the Changes: A change has been made to of the regulations regarding requirement for reevaluation in specify that a child with a disability participation of private school children § 300.536. In addition, since LEAs must placed by a public agency as the means in the Part B program. make FAPE available to all children of providing FAPE to the child must Discussion: The statute in section with disabilities in their jurisdiction receive an education that meets the 612(a)(10)(C)(i) is clear that an LEA (§§ 300.121, 300.300), public agencies standards that apply to the SEA and must provide for the participation of must be prepared to develop an IEP and LEA. parentally-placed private school to provide FAPE to a private school children with disabilities in the Part B child if the child’s parents re-enroll the Implementation by SEA (§ 300.402) program with expenditures child in public school. Comment: Another issue raised by proportionate to their number and Changes: None. comment was whether the term ‘‘public location in the State, even though the Comment: Several commenters agency’’ in § 300.402(b) referred to just LEA is not otherwise required to pay the requested that paragraph (c) be revised public schools or included other costs of education, including special to prohibit reimbursement if the private agencies. Some commenters requested education and related services, for any placement is inappropriate, which was that the term ‘‘applicable standards’’ in individual child with a disability who is a part of the Supreme Court’s standard that paragraph be clarified to include voluntarily placed in a private school on reimbursement announced in School application, compliance, on-site visits, under the terms of § 300.403. Comm. of Burlington v. Department of

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00197 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12602 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

Ed. of Mass., 471 U.S. 359 (1985) clear that a parental placement does not many areas of the country in ensuring (Burlington). Another commenter need to meet the State standards that that private school children with requested that the term ‘‘timely apply to education provided by the SEA disabilities are identified and evaluated. manner’’ be defined. and LEAs in order to be found to be Some commenters also noted the new Another commenter requested that appropriate. statutory provision limiting the amount the Department clarify that the Comment: A number of commenters of funds that must be spent on provisions of § 300.403 (c), (d), and (e) suggested definitions of various terms parentally-placed private school apply only in situations in which the used in § 300.403(d) and (e) and other children with disabilities based on the child previously has received special changes to the provisions of these number of identified parentally-placed education and related services under the paragraphs, some of which would have private school children with disabilities authority of a public agency. In other made recovering reimbursement more creates an additional need for timely situations, where the child has not yet difficult for parents and others which and effective child find for this been provided special education and would have limited school districts’ use population. These commenters related services, the Department should of these provisions in defense of a requested that the regulation be revised recognize that hearing officers and reimbursement claim. to require that consultation with courts still retain broad equitable Discussion: With the exception of appropriate representatives of private powers to award relief, and will making clear that the regulation also school children occur before the public continue to apply the reimbursement applies when parents choose to enroll agency conducts child find activities standard in Burlington. their child in a private preschool and to provide that child find activities Discussion: It is not in the public program, no change is necessary. The for parentally-placed private school interest to require that public funds be regulation in § 300.403(d) and (e) children be done on the same or spent to support inappropriate private reflects the statutory language, which comparable timetable as for public placements. For these reasons, balances the interests of parents and school children. Another commenter paragraph (c) should be revised public agencies. (See the explanation of requested that child find activities consistent with the basic standard for the definition of ‘‘business day,’’ under include children placed by their parents reimbursement articulated by the the discussion of comments to § 300.8, in private residential facilities. Supreme Court in the Burlington and a term which is used in several places Discussion: The role of child find for Carter cases. Since, as the Supreme in these regulations.) parentally-placed private school Court made clear in Carter, in instances Changes: Paragraph (c) has been children is very important for services where the school district has not offered revised to specify that the for this population. Section FAPE, the standard for what constitutes reimbursement provisions of § 300.403 612(a)(10)(A)(i) and the regulations in an appropriate placement by parents is also apply if parents of a child with a § 300.452 tie the amount of money that not the same as the standards States disability who previously received will be used for parentally-placed impose for public agency placements special education and related services private school children with disabilities under the Act, this new provision makes under the authority of a public agency to the number of parentally-placed clear that parental placements do not enroll the child in a private preschool private school children with disabilities need to meet State standards in order to program. in each LEA. Clearly, the adequacy of be ‘‘appropriate’’ under this the LEA’s child find activities for requirement. Definition of ‘‘Private School Children parentally-placed private school As a commenter noted, hearing With Disabilities’’ (§ 300.450) children with disabilities will be crucial officers and courts retain their authority, Comment: Several commenters asked to determining how many children with recognized in Burlington and Florence that the Department clarify whether disabilities are parentally-placed in County School District Four v. Carter, children with disabilities who are private schools, and consequently, the 510 U.S. 7 (1993) (Carter) to award home-schooled are included in the amount of funds that must be spent by ‘‘appropriate’’ relief if a public agency definition of ‘‘private school children an LEA on special education and related has failed to provide FAPE, including with disabilities’’. services to parentally-placed private reimbursement and compensatory Discussion: State law determines school children with disabilities. For services, under section 615(l)(2)(B)(iii) whether home schools are ‘‘private these reasons, LEAs should consult with in instances in which the child has not schools.’’ If the State recognizes home representatives of private school yet received special education and schools as private schools, children children with disabilities on how to related services. This authority is with disabilities in those home schools conduct child find activities for independent of their authority under must be treated in the same way as other parentally-placed private school section 612(a)(10)(C)(ii) to award private school children with disabilities. children with disabilities in a manner reimbursement for private placements of If the State does not recognize home that is comparable, which would children who previously were receiving schools as private schools, children include timing, to child find for public special education and related services with disabilities who are home-schooled school children with disabilities. from a public agency. are still covered by the child find LEAs are required to conduct child The term ‘‘timely manner’’ should not obligations of SEAs and LEAs, and these find activities for children residing in be defined, since what constitutes agencies must insure that home- their jurisdiction. Generally, as a matter timely provision of FAPE is best schooled children with disabilities are of State law, children are considered to evaluated within the specific facts of located, identified and evaluated, and reside in the home of their parents even individual cases. (See, e.g., that FAPE is available if their parents if they physically do not live there. §§ 300.342(b) and 300.343(b)). choose to enroll them in public schools. Whether children who are in private Changes: Paragraph (c) has been Changes: None. residential facilities are residing in the revised to include the requirement that jurisdiction of an LEA when that facility the private placement by the parents Child Find for Private School Children is within the boundaries of the LEA will must be appropriate (as determined by With Disabilities (§ 300.451) be dependent on State law. a court or hearing officer) in order to be Comment: Some commenters stated Changes: The term ‘‘religiously- eligible for reimbursement, and to make that there have been major difficulties in affiliated’’ has been replaced with

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00198 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12603

‘‘religious,’’ to more accurately reflect Discussion: It is important to clarify school children with disabilities must the types of schools. The term ‘‘public that there is a distinction under the be comparable to child find activities agency’’ has been replaced with ‘‘LEA,’’ statute between the obligation to conducted for children in public a technical change. Paragraph (a) has conduct child find activities, including schools. Further regulation also is been revised (see description of individual evaluations, for parentally- necessary on determining the number of comments received under § 300.453 placed private school children with parentally-placed private school regarding that revision). A new disabilities, and the obligation to use an children with disabilities so as to paragraph (b) has been added requiring amount of funds equal to a proportional eliminate the potential for disputes public agencies to consult with amount of the Federal grant to provide about how to determine the number of representatives of parentally-placed special education and related services to private school children with disabilities private school students with disabilities parentally-placed private school that will be used as the basis for the on how to conduct child find activities children with disabilities. The calculation and to provide a clear for that population in a manner that is obligation to conduct child find, standard for LEAs to meet. Possible comparable to that for public school including individual evaluations, exists alternative standards for who to count, children. independently from the services such as private school children referred provision described in §§ 300.452– for evaluation, or private school Provision of Services—Basic 300.456, and the costs of child find children with disabilities who are Requirement (§ 300.452) activities, such as evaluations, may not receiving services pursuant to Comment: None. be considered in determining whether §§ 300.450–300.462 are not consistent Discussion: None. the LEA has spent the amount described with the statutory language. Changes: Consistent with the in § 300.453 on providing special Since LEAs and SEAs are already comments, discussion, and changes education and related services to counting children with disabilities who under § 300.341, a new paragraph (b) parentally-placed private school are receiving special education and has been added to § 300.452 regarding children with disabilities. related services on December 1 or the the SEA’s responsibility for ensuring The statute describes the minimum last Friday in October of each year (the that a services plan is developed and amount that must be spent on these State decides which date to use on a implemented for each private school services and does not specify that only State-wide basis) for funding and data child with a disability who has been Federal funds can be used to satisfy this reporting purposes, conducting the designated to receive special education obligation. Thus, if a State or LEA uses count of eligible parentally-placed and related services under this part. other funds to provide special education private school children with disabilities Expenditures (§ 300.453) and related services to private school on that date as well is reasonable, children, those funds can be considered reduces the amount of double counting Comment: One commenter asked for in satisfying the provisions of § 300.453, of private school children with clarification that there is no obligation so long as the services are provided in disabilities who move from one location to spend more than the total per capita accordance with the other provisions of to another, and gives States the same Federal allocation to the LEA, and use §§ 300.452–300.462. flexibility they have with regard to of State or local funds are not required, The statute does not prohibit a State counting children with disabilities who for private school children. Another or LEA from spending additional State are receiving services. Furthermore, this commenter requested that the note or local funds to provide special count will provide the public agencies following this section be integrated into education and related services to private the basis on which they will be able, the regulation, as it provided valuable school children. To make this important consistent with § 300.454, to plan for guidance to States. Several commenters point, in light of the general decision to the services that will be provided during were concerned that LEAs were remove all notes from these regulations, the subsequent school year. suggesting that no services needed to be the note that followed this section in the Changes: A new paragraph (c) has provided to private school students as a NPRM should be incorporated into this been added to § 300.453 to specify that proportional share of the Federal funds section as paragraph (d). the costs of child find activities for was being used to conduct evaluations Determining the number of private school children with disabilities of these children. Another commenter parentally-placed private school may not be considered in determining asked whether a longstanding State children with disabilities is particularly whether the LEA met the expenditures program that allocates funding to be important. Child find, which includes requirements of this section. A used for private school children for locating, identifying and evaluating paragraph (d) has been added to clarify certain special education and related children, is an ongoing activity that that States and LEAs are not prohibited services and evaluations can be used to SEAs and LEAs should be engaged in from spending additional funds on satisfy the requirements of this section. throughout the year for all children in providing special education and related Several commenters noted the order to meet the statutory obligations to services to private school children with importance of determinations of the ensure that all children in the State are disabilities. The note has been removed. number of parentally-placed private located, identified and evaluated and Section 300.451 has been revised to school children with disabilities in that all children have the right to FAPE. specify that child find activities for calculating required expenditures and The statute does not distinguish parentally-placed private school asked for specificity in how this number between child find activities for children with disabilities be comparable is determined. Another commenter children enrolled in public schools and to child find activities for children with requested that the Department require those conducted for children enrolled in disabilities in public schools. that each LEA separately account for private schools. Section 300.453 has been revised to funds used for private school children In addition, the importance of child add a new paragraph (b) that specifies with disabilities and clarify that these find for determining the amount to be that each LEA consult with funds are only to provide special spent on services for parentally-placed representatives of private school education and related services and private school children with disabilities children with disabilities to decide how cannot be used to carry out activities also argues for clarity in the regulations to conduct the count of the number of such as child find. that child find activities for private parentally-placed children with

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00199 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12604 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations disabilities in private schools on a term ‘‘comparable in quality’’ not used representatives of private school December 1 or the last Friday of October in the statute. children. Although in many instances for determining the amount that must be Discussion: The use of the term ‘‘IEP’’ on-site services are most effective, local spent on providing special education could result in confusion about whether considerations should allow flexibility and related services for private school these children receive all the services in this regard. A change should be made children for the subsequent school year, they would have received if enrolled in to § 300.454(b)(1) to make clear that and that the LEA ensure that count is a public school. A different term, where services are provided is subject to conducted. services plan, will be used. However, to consultation with representatives of the extent appropriate given the services private school children. Services Determined (§ 300.454) that the LEA has selected through the The phrase ‘‘consistent with law’’ is Comment: Several commenters consultation process described in statutory. As Note 1 following this requested clarification of ‘‘timely and § 300.454, that services plan must meet section indicated, the Department’s meaningful’’ so that parents, private the requirements for an IEP in order to position, based on the decisions of the school representatives and LEAs would ensure that the services are Supreme Court in Zobrest v. Catalina have a better understanding of how this meaningfully related to a child’s Foothills School Dist. (1993) and process works. Various other individual needs. For example, in Agostini v. Felton (1997) is that there is suggestions included public notice of almost all instances, the services plan no Federal constitutional prohibition on the consultation meetings, public developed for an individual private providing publicly-funded special transcripts of those meetings, and school child with a disability would education and related service on-site at requiring explanations of refusals to have to meet the requirements of private, including religious schools. provide service, and decisions on § 300.347(a)(1)–(4), (6) and (7). These decisions make clear that LEAs allocations of funds for services for Whether those statements would also may provide special education and private school children. have to meet the requirements of related services on-site at religious Discussion: The needs of private § 300.347(a)(5), (b) and (c) would private schools in a manner that does school children with disabilities, their depend on the services that are to be not violate the Establishment Clause of provided to the parentally-placed number and their location will vary over the First Amendment to the U.S. private school student with a disability. time and, depending on the Constitution. Paragraph (c) provides useful guidance While the statute and regulation do circumstances in a particular LEA, will to LEAs and parents that will prevent not require the provision of services on- differ from year to year. However, an disputes. That content will be retained, site to private school children, to the annual consultation with but the definition should be eliminated. extent it is possible to do so, LEAs are representatives of private school Changes: Paragraph (a) has been encouraged to provide those services at children is not required, since States retitled ‘‘General.’’ Paragraph (b) has private school sites so as to minimize and LEAs are best able to determine the been revised by referring to a services the amount spent on necessary appropriate period between plan instead of an IEP and by specifying transportation and to cause the least consultations based on circumstances in that, for the services that are provided, disruption in the children’s education. their jurisdictions. the services plan, to the extent However, State constitutions and laws Paragraph (b)(3) specifies that appropriate, must meet the content must also be consulted when making consultation must take place before requirements for an IEP (§ 300.347) and determinations about whether it is decisions are made affecting the be developed consistent with consistent with law to provide services opportunities of private school children §§ 300.342–300.346. The useful content on-site at a religious school. with disabilities to participate in the from paragraph (c) of the NPRM has If services are offered at a site separate State’s special education program which been incorporated into paragraph (a). from the child’s private school, is assisted or carried out with Part B transportation may be necessary in funds. The regulations on this Location of Services; Transportation order to get the child from one site to consultation process have not been (§ 300.456) the other, or the child may be effectively amended, in the expectation that all Comment: Some commenters denied an opportunity to benefit. In this parties will treat others in the process requested that the Department require sense then, transportation is not a with reason and respect. services to children in private schools related service but is a means of making Changes: No change was made in be provided on-site, stating that the services that are offered accessible. response to these comments. See providing services at a neutral site is LEAs should work in consultation with discussion of comments received under disruptive and time consuming. representatives of private school § 300.350 regarding a change to Another asked for more specificity as to children to ensure that services are § 300.454. the phrase ‘‘consistent with law.’’ provided at sites that will not require Services Provided (§ 300.455) Several commenters objected to the significant transportation costs. In light treatment of transportation in of the decision to remove notes from the Comments: Several commenters § 300.456(b), some stating that there is final regulations, paragraph (b) of this expressed concern that using the term no individual right to transportation section should be revised to incorporate ‘‘IEP’’ in this section added to confusion under the Act, while others noted that the concept from the note that over whether private school children providing transportation services could transportation does not need to be served under these provisions were to use all the funds available for special provided between the child’s home and receive all the services they need, or just education and related services. Others the private school. those services that had been decided asked why a certain related service Changes: Section 300.456 has been re- through the consultation process would (transportation) had been singled out for titled ‘‘Location of services; be provided. Several suggested that a special treatment. transportation.’’ A technical change has different term, ‘‘statement of special Discussion: Decisions about whether been made to paragraph (a) to refer to education and related services to be services will be provided on-site or at religious schools rather than religiously- provided’’ be substituted. Other some other location should be left to affiliated schools. Paragraph (b) has commenters objected to the definition of LEAs, in consultation with been revised to explain when

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00200 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12605 transportation is required. Section provision is consistent with other services addressed are those provided in § 300.454(b)(1)(iii) has been revised to provisions that allow funds to be used accordance with §§ 300.450–300.462. specify that where services are provided by an LEA to provide staff development Requirements Concerning Property, is a subject of consultation between the for special and regular education Equipment and Supplies for the Benefit LEAs and representatives of private personnel, consultative services and of Private School Children With school children. The notes following provisions that permit other children to Disabilities (§ 300.462) this section in the NPRM have been also benefit when a teacher or other removed. provider is providing special education Comment: One commenter asked or related services to a child with a whether costs for inventory control can Complaints (§ 300.457) disability. be considered as a part of the Comment: Several commenters Discussion: LEAs should use proportionate share of the LEA’s Part B objected to § 300.457(a) because they reasonable measures in assessing funds that are to be expended for believed that a child in a private school whether Federal funds are being used to providing services to private school should be able to receive a due process benefit private schools. This provision children. The commenter also asked for hearing on complaints about services does not prohibit private school specificity regarding the procedures to once the LEA has decided to provide teachers from participating in staff be used for maintaining administrative services to that child. Most of those development activities regarding the control of all property, equipment and commenters indicated that there may be provisions of IDEA when their supplies acquired for the benefit of legitimate issues regarding whether the participation can be accommodated. private school children. LEA complied with obligations to a If consultation services are provided Discussion: Reasonable and necessary specific child it had agreed to serve. to a private school teacher as a means costs for inventory control of property, One commenter agreed with the of providing special education and equipment and supplies located in a position in the NPRM that if FAPE does related services to a particular private private school related to providing not apply to private school children, school child with a disability and that special education and related services to due process also would not apply. teacher uses the acquired skills in private school children with disabilities Another commenter suggested that due providing education to other children, can be considered a part of the cost of process also should not apply to the whatever benefit those other children providing special education and related child find obligations described in receive is incidental to the publicly services to private school children with § 300.451. funded services and is not prohibited by disabilities. Effective procedures for Discussion: Section 615(a) of the Act this provision. ensuring administrative control will specifies that the procedural safeguards On the other hand, if an LEA simply vary depending on local considerations. of the Act apply with respect to the gave a private school an amount of Changes: None. provision of FAPE to children with money rather than itself providing or disabilities. The special education and Subpart E Procedural Safeguards purchasing services for parentally- related services provided to parentally- placed private school children with General Responsibility of Public placed private school children with disabilities, in addition to violating the Agencies; Definitions (§ 300.500) disabilities are independent of the requirements of §§ 300.453 and 300.454, obligation to make FAPE available to Comment: One commenter asked would raise very significant concerns these children. whether the definition of ‘‘evaluation’’ While there may be legitimate issues about compliance with § 300.459(a). at § 300.500(b)(2) precludes the use of regarding the provision of services to a In the interest of regulating only tests which are based on the general particular parentally-placed private where necessary, the regulations do not curriculum and which may be used school child with disabilities an LEA further specify measures of when a with all children in a school or class as has agreed to serve, due process should private school is benefiting from the the primary means of evaluation. not apply, as there is no individual right Federal funds. Another commenter asked if any to these services under the IDEA. Changes: None. evaluation after an initial evaluation is considered a reevaluation. It was also Disputes that arise about these services Use of Private School Personnel suggested that the revocation of consent are properly subject to the State (§ 300.461) complaint procedures, which are only be allowed before the first day of available to address noncompliance Comment: One commenter noted that the child’s placement. There was also a with any requirement of Part B. private school personnel used to request that the note (which concerns On the other hand, child find is a part provide services to private school the non-retroactivity of a revocation by of the basic obligation to make a FAPE children under Part B should be a parent of their consent) be included in available to all children with disabilities required to meet the same standards as the text of the regulation. in the jurisdiction of the public agency, public school employees providing Some commenters also wanted a and so failure to properly evaluate a those services to public or private definition of ‘‘educational placement’’ parentally-placed private school child school children. included in § 300.500(b), consistent would be subject to due process. Discussion: Section 300.455 specifies with prior policy issuances regarding Changes: A new paragraph (b) has that services provided to private school the definition. been added to specify that due process children must be provided by personnel Discussion: The statutory changes to procedures do apply to child find meeting the same standards as those the evaluation procedures that are activities, including evaluations. providing services in public schools. reflected in §§ 300.530–300.536 make This would apply to private school clear that an ‘‘evaluation’’ will include Requirement That Funds not Benefit a personnel who, under § 300.461, are review of existing data, which may Private School (§ 300.459) being used to provide services under include results on tests or other Comment: One commenter asked how §§ 300.450–300.462 to private school procedures that are based on the general an LEA is to discern whether funds are children with disabilities. curriculum and may be used with all being used to benefit the private school. Changes: A technical change has been children in a grade, school, or class. The Another questioned whether this made to § 300.461 to make clear that the definition of ‘‘evaluation’’ in the NPRM

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00201 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12606 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations at proposed § 300.500(b)(2) had not been Changes: The note following this specific timeline for giving parents updated to recognize this change in the section has been deleted and notice of meetings, such as at least 10 statute. Therefore, a change has been § 300.500(b)(1)(iii) has been amended by business days before a meeting. made to eliminate the last sentence in adding language to clarify that a Regarding placements, many the proposed definition of ‘‘evaluation’’ revocation of consent does not have commenters stated that parents should so that it does not imply that an retroactive effect if the action consented be informed by public agencies of the evaluation may not include a review of to has already occurred. Section various alternative placements a child’s performance on a test or § 300.500(b)(2) has been amended by available, not just the one ultimately procedure used with all children in a removing the last sentence of that chosen, and the reasons for rejecting the grade, school or class. This change does paragraph. other potential placements. Further, it not mean that a public agency must was suggested that the language in Opportunity to Examine Records; Parent obtain parental consent before § 300.501(c)(1) be placed in the IEE Participation in Meetings (§ 300.501) administering a test used with all section of the regulations. children unless otherwise required. (See Comment: Some commenters asked Several commenters also stated that § 300.505(a)(3)). Section 300.532 sets that the term ‘‘all’’ with respect to video-conferencing (referenced in forth the procedures required to meetings in § 300.501(a)(2) be deleted as § 300.501(c)(3)) would be costly and individually evaluate a child. Section that term is not used in the statute, as prohibitive for many schools. Some 300.533 addresses the use of existing well as delete the term ‘‘all’’ with thought the language in § 300.501(c)(5), evaluation data which can include respect to the term ‘‘education records’’ ‘‘whatever action is necessary’’, was too information available on the results of and replace it with ‘‘special.’’ Another broad and should be a reasonable or tests and procedures used for all suggestion was to require in feasible standard. There were also children in a school, grade or class. § 300.501(a)(1) that copies of tests given concerns that § 300.501(c)(5) should not To distinguish an initial evaluation to a child and manuals to interpret such require schools to ensure participation from a reevaluation, an initial tests be made available for the parents and comprehension by the parents, but evaluation of a child is the first to review. One commenter asked that they should make reasonable completed assessment of a child to whether therapy notes are considered attempts to ensure parents participate determine if he or she has a disability educational records and another asked and understand. under IDEA, and the nature and extent that the public agency be required to Discussion: The statute specifically of special education and related services specify time periods within which the states that parents have the right to required. Once a child has been fully inspection and review right must be participate in meetings regarding evaluated the first time in a State, a carried out. identification, evaluation, placement or decision has been rendered that a child Several commenters expressed FAPE. Paragraph (b)(2) describes the is eligible under IDEA, and the required concern that the definition of types of discussions that do not fall services have been determined, any ‘‘meetings’’ was too narrow; the within this requirement. The term ‘‘all’’ subsequent evaluation of a child would commenters recommended the should be deleted to be consistent with constitute a reevaluation. definition be drafted to insure that it the statutory language. Regarding revocation of parental means any event where decisions are The term ‘‘all education records’’ is consent, parents cannot be forced to made regarding a child’s identification, from the statutory reference to ‘‘all consent to decisions related to their evaluation or placement. Others asked records relating to such child’’ at section child’s education. However, it would be that the definition be removed entirely. 615(b)(1) of the Act. The Department impractical to allow a parent to It was also requested that the potential has always interpreted the term to mean retroactively apply a revocation of for any confusion regarding informal all of the child’s education records to be consent where parental consent is meetings held by school personnel be consistent with the purpose of IDEA and required. Thus, once a parent consents eliminated. Several commenters the applicable confidentiality provisions to an educational decision concerning recommended deleting the reference at of the General Education Provisions Act their child, be it an evaluation or § 300.501(a)(2)(ii) to the provision of at 20 U.S.C. 1232g, also known as the provision of service(s), any revocation of FAPE, claiming this would overly Family Educational Rights and Privacy their consent once the action to which broaden the meetings at which parents Act of 1974 (FERPA) as directed by they initially consented has been carried should be given the chance to attend, section 617(c) of the Act. out will not affect the validity of the precluding the ability for internal Education records are defined at action. Since the non-retroactivity of a meetings without the parents. A § 300.560 by reference to the definition parent’s revocation of consent is based commenter also asked that of education records in 34 CFR part 99 on the Department’s interpretation of § 300.501(a)(2) include the opportunity (the regulations implementing FERPA). the statute, and is important to make to attend eligibility meetings. The term means those records that are clear to all parties, it should be set forth Commenters also asked that directly related to a student and are in the regulation itself. § 300.501(b)(2) be amended to include maintained by an educational agency or The educational placement of a child in the definition of ‘‘meetings’’ those institution or by a party acting for the focuses on the implementation of a that occur via conference call or video agency or institution. Given the child’s IEP and cannot be defined conferencing, not just face-to-face definition, it follows that tests taken by generally given that each child has meetings. Several comments advised a child are included in the education different educational needs. Section that the language as proposed at records available for review by a parent. 300.552 addresses the meaning of § 300.501(b)(2) might result in parents The discussion following § 300.562 in educational placement by describing the being excluded from curriculum the attachment further discusses what is factors involved in making a placement planning meetings for individual considered an education record of a decision and explains the concept in the children under the guise of ‘‘teaching child and the timelines for parental context of the least restrictive methodology, lesson plans or inspection and review of education environment. There is no additional coordination of service provision’’ records. benefit to defining further the term meetings. There were several Regarding the definition of educational placement at § 300.500. recommendations that there be a ‘‘meetings,’’ the proposed definition was

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00202 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12607 intended to make clear that parents have participation in meetings by those with customary charge, as well as restricting the right to be notified of and attend a right to attend, are used is dependent the type of evaluation conducted, such meetings which, generally, are on the particular circumstances, and no as evaluating only educational, not scheduled in advance, and in which one method is mandated. If one effective medical, needs. public agency personnel are to come option would be more costly in a Comments were received together at the same time, whether face- particular situation than another, there recommending that before a parent may to-face or via conference calls or video- is no mandate that the more costly request an IEE, there must have been an conferencing, to discuss, and potentially alternative be chosen. LEA evaluation, the results with which resolve, any of the issues described in Section 300.501(c)(4) explains that the parents disagree. The commenters paragraph (b)(2). placement decisions may be made by stated that parents who refuse to Informal discussions among teachers public agencies without the parents if consent to a public evaluation and then and administrators, which may or may the agency is unable to obtain the demand an IEE at public expense not be pre-arranged, are not meetings for parents’ participation in the decision should not receive an IEE, unless they which parents must receive notice and and documents its attempts to ensure can demonstrate a legitimate reason for the opportunity to attend. Whether or their involvement. Once a parent makes refusing to consent to the undertaking of not a meeting is prearranged is not the clear that he or she will be involved in a public evaluation. deciding factor in determining whether the placement decision-making process, Commenters both supported and parents would have the right to attend; § 300.501(c)(5) requires that the agency opposed Notes 1 and 2, some wishing rather, the fact that the meeting is to ensure that the parent is actually able to their deletion and some wanting them discuss and potentially resolve one or participate in, which includes included as part of the regulations. more of the issues identified in understanding, the process. However, it Many commenters suggested that paragraph (b)(2) triggers the parents’ is possible that even if an agency makes parents should explain why they right to be involved. reasonable efforts, consistent with disagreed with the public evaluation, or In practical terms, this means that § 300.501(c)(5), to ensure a parent’s that the public agency should be able to meetings to which the child’s parents participation, the parent is still not able request such information and have time must be afforded the opportunity to to meaningfully participate. Thus, it to alleviate the parents’ concerns, and attend cannot be convened without appears useful to clarify the regulation. that the parent should request a hearing providing parents with reasonable Changes: Section 300.501(a)(2) has if he or she wants one so the burden to notice. However, in the interest of been amended to delete the word ‘‘all’; demonstrate that the evaluation was regulating only where necessary, the § 300.501(b)(2) (definitions of appropriate would not fall solely on the first sentence of paragraph (b)(2) would ‘‘meetings’’) has been amended by public agency. be removed and no specific timeline replacing ‘‘a prearranged event in There were several requests for a regarding parental notice of meetings which’’ with ‘‘when;’’ and deleting ‘‘and definition of unnecessary delay in would be added. place;’’ and § 300.501(c)(5) has been § 300.502(b), some proposing 10 The right of parents to participate in revised to refer to reasonable efforts to calendar or school days from the receipt meetings where the provision of FAPE ensure parent participation. of a request for an IEE. to their child is being discussed is Discussion: The purpose of requiring statutory. The point of the provision is Independent Educational Evaluation the public agency to either initiate a due to ensure parents have the opportunity (§ 300.502) process hearing if it wishes to challenge to participate in discussions where Comment: Some commenters thought a parent’s request for an IEE, or substantive decisions regarding their that allowing the public agency to otherwise provide an IEE at public child’s education are made—a key initiate a hearing regarding parental expense, is to require public agencies to principle of the IDEA Amendments of requests for independent educational respond to IEE requests and to ensure 1997. Eligibility determinations are the evaluations (IEE), without allowing parents are able to obtain an IEE as set focus of the identification process and parents the right to likewise initiate a forth in section 615(b)(1) of the Act. are already part of § 300.501(a)(2). A hearing, would cause excessive There is no corresponding need to parent’s role in the eligibility litigation. Further, it was suggested that specify that a parent also has the right determination also is addressed under States be required to develop clear to initiate a due process hearing since if § 300.534 of these regulations. criteria for acceptance of IEEs as the a public agency does not do so it must With respect to placement, if parents primary means of determining provide the IEE at public expense. are to be meaningfully involved in the eligibility. IEEs would be only one element in placement decision for their child it is One commenter asked that a formula the eligibility determination since the necessary that they understand the be established for reimbursing parents evaluation team reviews the existing various placement options. It is implicit who assume the responsibility of evaluation data and then determines in the requirement that parents be establishing eligibility for their children. what additional data are needed to ensured the opportunity to be members Several commenters urged that an IEE determine whether the child has or of any group making the placement must be consistent with the continues to have a covered disability, decision, that whatever placement requirements of a full and individual the child’s present levels of performance options are available to a child will be evaluation under §§ 300.530–300.536. It and whether the child needs or fully discussed and analyzed at was also suggested that although the continues to need special education and placement meetings, allowing input criteria under which an IEE is obtained related services (see § 300.533(a) and from all the participants. at public expense should be the same as (b)). Methods in addition to IEEs are to Relocating the language at the criteria used by the public agency be used to determine whether a child is § 300.501(c)(1) in the IEE section of the when it initiates an evaluation, eligible under IDEA. Therefore, the regulations does not make sense since reasonable travel should be allowed results of IEEs cannot be the sole the purpose of § 300.501(c) is placement when community professional resources determining factor for eligibility. and that of IEE’s is evaluation. are limited. Under IDEA, it is the public agency’s Whether or not video-conferencing, as A few comments requested limiting responsibility to establish eligibility. If well as other methods for enabling full the cost of an IEE to a reasonable and parents are willing to assume the

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00203 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12608 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations responsibility, on behalf of the public disagreement over a public evaluation, suggested that a note be added that an agency, for having the assessment of there is nothing in the statute which LEA must document its attempts at their child under IDEA done, they prevents parents from obtaining an IEE accessing resources to assist in should be reimbursed for the assessment if they did not express their concerns translating or interpreting information. methods agreed upon by the public first. Therefore, Note 1 would be deleted Discussion: Section 300.503(b)(8) was agency and parents. The agreement and the regulation changed to state that proposed to enhance the awareness of between the parents and public agency the public agency may request an parents of low cost and less adversarial would depend on their special explanation from the parents regarding mechanisms for resolving disputes with circumstances so regulating on this their concerns when the parent files a school districts. Therefore, it makes issue would not be helpful. However, request for an IEE at public expense. sense to require State complaint this procedure would not be an IEE. However, such an explanation may not procedures to be explained along with Since § 300.502(e)(1) states that IEEs be required of the parents and the due process and mediation rather than at public expense are to be conducted provision of an IEE, or initiation of a in this notice. Since § 300.503(b)(6) pursuant to the same criteria that apply due process hearing to defend the requires that parents be advised of the to evaluations conducted by public public evaluation, may not be delayed existence of procedural safeguards and, agencies, it follows that the unreasonably regardless of whether or if the written notice is not part of an requirements at §§ 300.530–300.536 not the parent explains his or her initial referral for an evaluation, be told would apply to the IEEs. Note also that concerns to the public agency. how a copy of the procedural safeguards for an IEE obtained by a parent either at Since the necessity or reasonableness notice can be obtained, it would be public or private expense to be of a delay is case specific, no definition useful and appropriate to add a specific considered by the public agency, such of these terms has been added. requirement for an explanation of the IEE must meet agency criteria. Changes: Note 2 has been deleted and State complaint process in § 300.504(b). Therefore, the parents must be able to § 300.502(a)(2) and (e)(1) have been Procedural safeguard notices must be have access to the relevant agency amended to provide that on request for given to the parents, at a minimum, criteria. To that end, Note 2 should be an IEE, parents are provided with upon the four events set forth at deleted and, in modified form, included information about where an IEE may be § 300.504(a); between those events and in the text of the regulation at obtained and the agency criteria the statement mandated at §§ 300.502(a)(2), 300.502(c)(1), and applicable to IEEs and that those criteria § 300.503(b)(6), agencies should have 300.502(e)(1). are consistent with the parent’s right to ample instances in which they must There is nothing in the regulations an IEE. provide parents with effective notice of with respect to IEEs, or evaluations in Note 1 has been deleted and the various processes for challenging general, that would prevent reasonable § 300.502(b) has been revised to explain proposed action. Therefore, travel for necessary services not that an explanation of parent § 300.503(b)(8) should be deleted and available in the community. disagreement with an agency evaluation moved to § 300.504(b). Since public agencies must provide may not be required and the public parents with information about where The types of organizations which agency may not delay either providing exist to help parents understand IDEA IEEs may be obtained, provided the the IEE at public expense or, options are consistent with §§ 300.530– are varied and depend on the particular alternatively, initiating a due process State. Therefore, a list of such 300.536, public agencies have some hearing. discretion in the cost if it is at public organizations in the regulations would expense. Further, evaluations of Prior Notice by the Public Agency; not be feasible. children under IDEA are to cover all Content of Notice (§ 300.503) The regulation is already clear on areas of suspected disability, which may Comment: One commenter stated that when the prior written notice must be include medical examinations for § 300.503(b)(8) should be removed, given: a reasonable time before the purposes of determining the child’s believing it to exceed the statute and public agency proposes or refuses to disability. There may be situations in because an explanation of State initiate or change the child’s which a child’s educational needs are complaint procedures is given in the identification, evaluation, educational intertwined with a child’s health needs, procedural safeguards notice. The placement or provision of FAPE. If therefore, stating that the types of commenter also believed it is parental consent is required for the evaluations conducted are only those inconsistent to inform parents about the proposed action, the notice may be regarding educational need does not add State complaint process without the given when parental consent is any useful clarity. other two (mediation and due process requested. Further, the notice is The right of a parent to obtain an IEE appeals) being explained. required at times other than only before is triggered if the parent disagrees with Several commenters asked for specific implementing a child’s IEP so the title a public initiated evaluation. Therefore, types of organizations to be listed in should not be changed. if a parent refuses to consent to a § 300.503(b)(7), such as parent training Section 300.503(b)(6) is taken directly proposed public evaluation in the first institutes. Another commenter wanted from the statute. In addition, it is place, then an IEE at public expense the title of § 300.503 to be changed to difficult to understand when it would would not be available since there ‘‘Prior Notice by the Public Agency not be feasible to add the statement would be no public evaluation with Before Implementing an IEP.’’ required by § 300.503(b)(6). which the parent can disagree. If the Several commenters asked that a note It is not necessary to add a note parent believes the proposed public be added to explain when the notice requiring an agency to document its evaluation is inappropriate, he or she needs to be sent. efforts to translate or interpret the notice may pursue an appropriate publicly- Requests were received to delete pursuant to § 300.503(c)(2)(i) and (ii) funded evaluation via the mediation or § 300.503(b)(6) and to insert the phrase since § 300.503(c)(2)(iii) requires that due process procedures under ‘‘unless it is clearly not feasible to do the agency can show that §§ 300.506–300.509. so’’ as stated in § 300.503(c)(ii) § 300.503(c)(2)(i) and (ii) have been met. With respect to Note 1, while it would whenever language or mode of Changes: Section 300.503(b)(8) has be helpful for parents to explain their communication is addressed. It was also been deleted and moved to § 300.504(b).

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00204 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12609

Procedural Safeguards Notice clearer in that it refers to an explanation stated that the term ‘‘new test’’ confused (§ 300.504) of the actual due process hearing rather than clarified when consent Comment: Several commenters were procedures. Also, in adding needed to be obtained and requested opposed to specifying the times § 300.504(b)(14), a corresponding that it be clarified or deleted. Some procedural safeguards notice are to be change to the first paragraph of commenters suggested that an given to the parents, claiming such § 300.504(b) must be made to reference explanation be added to clarify that requirements are expensive and State complaint process. where additional data are needed in Sections 300.504(a)(2) and (b)(7) are burdensome. One commenter asked that order to reevaluate a child, parental required by the statute. The provision in the terms ‘‘opportunity to present consent is required. There were also § 300.504(c)(2)(iii) has been in the complaints’’ and ‘‘due process hearings’’ questions regarding the necessity of regulations since 1977 and there is no consent for adapted or modified be clarified since the two terms seem to basis for changing the requirement given assessments if not part of a reevaluation, mean the same thing for purposes of the that purpose is to ensure that parents such as ongoing classroom evaluations procedural safeguards notice. Other receive assistance in understanding the (e.g. the Brigance) and counseling. commenters objected to notice. Several commenters believe that §§ 300.504(a)(2), 300.504(b)(7), and Regarding the several suggested parental consent should be required 300.507(c)(2)(iii). additions to the timing and contents of before special education services are There were several suggested the procedural safeguards: (1) discontinued, for example, upon additions to the timing and contents of § 300.504(b)(7) as written addresses graduation. A few commenters the procedural safeguards notice. situations where children are recommended that reevaluations for Commenters suggested that the disciplined and placed in interim children who are suspended for more procedural safeguards notice: (1) Also alternative educational placements; (2) than 10 days or expelled should be able be required when there is a decision to § 300.504(b)(8) as written addresses to proceed even if parental consent is remove a child from his or her current situations resulting in reduction of not given. educational placement for disciplinary reimbursement of private school tuition; The use of § 300.345(d) procedures to actions resulting from behaviors (3) § 300.347(c) requires that at least one meet the reasonable measures described in § 300.520 or § 300.521, or year before the student reaches the age requirement of § 300.505(c) was for a period of more than 10 school days of majority under State law the parents opposed by some commenters, several for other violations; (2) contain and the student will receive notice of of whom believe that documenting information with respect to the transfer the projected transfer of rights through efforts to obtain parental consent should of rights at the age of majority and the the IEP; (4) § 300.142(e) specifies that be sufficient. Some also wanted circumstances under which tuition private insurance can only be used with reasonable measures to be defined more reimbursement may be denied; (3) informed parent consent and that public specifically. contain information on the use of insurance can only be used if it will not Several comments advocated deleting private and public insurance to pay for result in a cost to parents; (5) Note 3 and others believed Note 3 Part B services; (4) contain information § 300.503(b)(7) already includes sources should be incorporated into the as to where parents can receive help in for parents to use to help in regulation. Further, it was understanding procedural safeguards; understanding their rights; and (6) recommended that the clarification in (5) state that a public agency may not § 300.504(b)(9) already requires that the Note 2 be revised to state that the public deny a parent’s right to a due process mediation process, which includes agency consider implementing its hearing if the parent fails to participate parental rights therein, be fully procedures to override a parent’s refusal in a meeting to encourage mediation; explained. to consent to services the public agency and (6) include a complete listing of all The information on the content and believes are necessary for the child to times when the safeguards notice is to timing of the procedural safeguards receive FAPE, rather than requiring the be provided. notice is not included in the statutory public agency to implement such Discussion: The minimum times the description of the contents of this override procedures. procedural safeguards notice must be notice. Discussion: Parental consent must be given to parents is set forth in the Changes: As discussed under informed to be consistent with the statute at section 615(d)(1). The fourth § 300.503, a new § 300.504(b)(14) has statute and meaningful. Further, adding requirement, that the notice be given been added to address State complaint the word ‘‘informed’’ at § 300.505(a)(1) upon receipt of request for a due process procedures. The first paragraph of is consistent with the definition, in hearing, comes from the requirement at § 300.504(b) is amended to recognize § 300.500(b)(1), of consent. section 615(d)(1)(C) that the notice be this change. Section 300.504(b)(5) is In order for children to receive FAPE, given upon registration of a complaint amended to refer to presenting the IDEA Amendments of 1997 under section 615(b)(6). complaints to initiate due process emphasized the importance of parent The longstanding interpretation of the hearings. involvement in their children’s statutory mandate at section 615(b)(6) evaluation and placement. The statute that parents have the opportunity to Parental Consent (§ 300.505) requires informed parental consent prior present complaints relating to their Comment: A few comments suggested to a child’s initial evaluation for special child’s identification, evaluation, that the term ‘‘informed’’ be inserted education and related services, as well educational placement and provision of before ‘‘parental consent’’ in as any reevaluations. The intent of this FAPE, is that they have an opportunity § 300.505(a)(1). statutory change was not to require to request a due process hearing. Several commenters believe that school districts to obtain parental Therefore, § 300.504(b)(5) should be parental consent should be required for consent before reviewing existing data modified to make clear that the all reevaluations, not just those where about the child and the child’s opportunity to be explained is that of new tests are necessary. Other performance, an activity that school presenting complaints to initiate due commenters also requested that the term districts, as a matter of good practice, process hearings pursuant to § 300.507. ‘‘new test’’ be changed to encompass should be engaged in as an on-going Section 300.504(b)(10) as stated is then other evaluation procedures. Others practice.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00205 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12610 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

To require parental consent for with State law relating to parent demonstrate that it has taken reasonable collection of this type of information consent. Proposed Notes 1 and 3, and measures to obtain parental consent would impose a significant burden on the second part of proposed Note 2 were pursuant to § 300.505(d) should be school districts with little discernable attempts to clarify the interplay between consistent with the procedures in benefit to the children served under the Federal requirement to provide § 300.345(d) that a public agency must these regulations. The statute provides FAPE and any State laws and policies use to inform and encourage parents to that in some instances, an evaluation which may not permit educational attend IEP meetings. The methods team may determine that additional data agencies to override refusals of parents described in § 300.345(d) are examples are not needed for an evaluation or to consent to evaluations and of how to attempt and document the reevaluation. In all instances, parents reevaluations. steps that the public agency has taken have the opportunity to be part of the In practical terms, if a State does not to obtain parental participation in an team which makes that determination. allow the agency to override a parent’s IEP meeting, and are applicable to a Therefore, no parental consent is refusal for an initial evaluation or public agency’s attempts to obtain necessary if no additional data are reevaluation which the agency deems parental consent pursuant to 34 CFR needed to conduct the evaluation or necessary in order to provide FAPE, the 300.505. reevaluation. agency, under paragraph (b), must Section 300.345(d) does not require a To make this clear and to respond to follow the requirements of State law. In public agency to take all of the steps commenters who believed that requiring cases where the evaluation or mentioned before conducting the parental consent only when conducting reevaluation is necessary in order to meeting. A public agency may use a a new test as part of the reevaluation determine that the child is or continues method which is different from the ones was too narrow, the regulation should to be a child with a disability under Part listed at § 300.345(d) to demonstrate be revised to specify that parental B of the Act, and State law prohibits an that it has attempted to obtain parental consent must be obtained before agency from overriding a parental consent as long as it can demonstrate conducting an evaluation or refusal to consent, the agency may have that its methods were appropriate. reevaluation, to delete proposed no recourse but to not provide, or not Therefore, the language concerning the paragraph (a)(1)(iii) and add a new continue to provide, services under the use of the § 300.345(d) procedures to provision to state that parental consent Act to the child. meet the reasonable measure need not be obtained before reviewing On the other hand, if State law does requirement of § 300.505(c) should be existing data as a part of an evaluation not prohibit the agency from overriding retained. or reevaluation or before administering a parental refusal to consent to an Under paragraph (d) of this section if a test or other evaluation that is evaluation or reevaluation, and the a State adopts consent requirements in administered to all children unless agency believes that an evaluation or addition to those required in consent is required of all parents. reevaluation is necessary in order to § 300.505(a)(1), public agencies are not Parental consent would be necessary provide FAPE, the agency would have excused from their obligation to provide if a test is conducted as a part of an to take appropriate action. FAPE because a parent refuses to evaluation or reevaluation, and when If State law provided a mechanism consent unless the public agency has any assessment instrument is different than due process or mediation taken the steps necessary to resolve the administered as part of an evaluation or under Part B as the means to override matter. In order to resolve the reevaluation. However, schools would a parent refusal of consent, and the disagreement with the parent, it is not be required by these regulations to agency deems the evaluation or appropriate for the public agency to use obtain parental consent for teacher and reevaluation necessary in order to informal means initially, such as a related service provider observations, provide FAPE, the agency would use the parent conference. However, if these ongoing classroom evaluation, or the State mechanism to pursue the informal means prove unsuccessful, the administration of or review of the evaluation. If State law permits agencies public agency must use its override results of adapted or modified to override a parental refusal to consent procedures if it continues to believe that assessments that are administered to all to an evaluation or reevaluation, but the disputed service or activity is children in a class, grade, or school. does not specify the procedures to use, needed in order for the child to receive If a child is about to graduate or and the agency determines that the FAPE. otherwise stop receiving special evaluation or reevaluation was Paragraph (e) of this section contained education and related services, necessary in order to provide FAPE to a typographical error because it should § 300.503’s prior notice requirements the child, the agency would use the due have referred to consent required under would be triggered. Section 300.503 process and mediation procedures paragraphs (a) and (d), consistent with requires that written notice must be sent under Part B of the Act. the prior regulations. With regard to to the parents before a proposed change Of course, if an agency proposed an paragraph (e), it is important to in identification, evaluation, placement, evaluation or reevaluation and the recognize that except for the service or or the provision of FAPE is effective, parent refused consent, the agency activity for which consent is required thereby allowing the parent the could reconsider whether its proposed under paragraphs (a) and (d), parent opportunity to object to the proposal. It evaluation or reevaluation was refusal to consent to one service or is not appropriate to regulate further on necessary, if the circumstances warrant. benefit may not be used to deny the this issue here. However, in light of the general decision parent or child any other service or Paragraph (b) of this section addresses to remove all notes from the regulations benefit available to them. For example, the procedures an agency can use if it implementing Part B of the Act, the if a State requires parental consent to wants to pursue an evaluation or notes should be removed. the provision of all services identified in reevaluation, but the parents have Paragraph (c) of this section addresses the IEP, and the parent refuses to refused consent. The agency may seek to situations in which an agency seeks consent to physical therapy services do the evaluation or reevaluation by parental consent for a reevaluation, but included in the IEP, the agency is not using the due process or mediation the parent fails to respond. Given the relieved of its obligation to implement procedures under Part B of the Act importance of parental involvement, the those portions of the IEP to which the unless doing so would be inconsistent procedures a public agency must use to parent consents. Similarly, a parent

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00206 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12611 refusal to consent to a reevaluation may is the subject of the mediation or any attend a mediation informational not be used to deny a child the right to state agency described in § 300.20. meeting if it chooses not to mediate. participate in a class trip. A parent There was also the suggestion that Discussion: Mediation is an important refusal to consent to the collection of LEA employees be permitted to serve as alternative system for resolution of additional data that a public agency mediators, however, either party would disputes under Part B. However, in believes is needed as a part of a have the right to reject such selection. order for mediation to be effective, it reevaluation may not be used to deny The commenters pointed out that there must be an attractive alternative to both the child the services that are not in is no similar prohibition against LEA public agencies and parents and it must dispute. In addition, a parent refusal to employees being hearing officers and be an impartial system which brings the consent to the collection of additional several questioned whether the proper parties into a confidential data that the agency thinks necessary to restrictions were therefore necessary. discussion of the issues and allows for determine whether the child continues Some commenters suggested that the a binding agreement that resolves the to be a child with a disability may not regulation make clear that multiple dispute. result in the exclusion of the child from mediators or mediation panels are The statute clearly states that the special education and related services allowed, i.e., that a single mediator is option of mediation must be available because § 300.534(c)(1), which reflects not required for each mediation. whenever a due process hearing is the statutory requirements of section Other comments recommended that requested. No further requirement 614(c)(5), requires a full evaluation Note 1 be deleted, while others asked would be added to the regulations. before determining that a child is no that it be included in the text of the However, States or other public agencies longer a child with a disability. To make regulation. With regard to Note 1, for are strongly encouraged to offer this point more clearly, paragraph (e) situations in which agreement on a mediation or other alternative systems would be revised. mediator could not be reached, of dispute resolution prior to the filing Changes: Section 300.505(a)(1) has commenters sought additional guidance of a request for a due process hearing, been amended to refer to ‘‘informed in the regulation. and whenever a dispute arises. parent consent,’’ and to delete the Other suggestions for the mediation An expanded use of mediation should unnecessary reference to programs process included promoting mediation enable prompt resolution of disputes providing special education and related even before a due process hearing is and lead to a decrease in the use of services. A reference to reevaluation has requested and allowing an LEA to select costly and divisive due process been added to paragraph (a)(1)(i), a mediator who it believes is best able proceedings and civil litigation. paragraph (a)(1)(iii) has been deleted, to resolve issues in dispute. There were Mediation may also be useful in and a new paragraph (a)(3) added to comments that mediation should be resolving State complaints under specify that parental consent is not allowed to occur via telephone when §§ 300.660–300.662. required before reviewing existing necessary. Several commenters asked The term ‘‘public agency’’ in the evaluation data as a part of an that the agreement reached in mediation regulation appropriately includes State evaluation or reevaluation or for be added to the child’s IEP as soon as and local educational agencies as well administering a test used with all possible after the agreement is reached, as other agencies in the State that may children unless consent is required of however not later than 10 days from the have responsibility for the education of all parents. Paragraph (e) has been agreement. Commenters also requested children with disabilities because it revised to provide that a public agency that the regulation specify that the ensures access to the mediation process, may not use a parental refusal to written mediation agreement would be regardless of the agency that provides consent to one service or benefit under as enforceable as a due process hearing educational services. The requirement paragraphs (a) and (d) to deny the decision, and that mediation that the State bear the cost of the parent or child another service, benefit, discussions may be disclosed in any mediation process is clearly set out in or activity, except as may be required by proceeding brought to enforce a the regulation; however, the regulation these regulations. The notes following mediation agreement. should be revised to correctly refer to this section have been removed. Some comments stated that there the meetings to encourage the use of appeared to be a conflict between mediation. In addition, the potential Mediation (§ 300.506) §§ 300.506(d)(1) and 300.506(d)(2). The savings of mediation, when compared to Comment: Several commenters asked former allows a public agency to require litigation, make it an attractive, low-cost that the terms ‘‘SEA’’ and ‘‘LEA’’ be parents who elect not to go to mediation option for most public agencies. used in lieu of ‘‘public agency’’ since to meet with a disinterested party to While there is nothing in the Part B the statute uses those terms. There were learn about the mediation process. The regulations that precludes parents and also requests for a clarification of the latter states that if a parent does not LEA employees from attempting to State’s responsibility for the costs of the participate in the informational meeting resolve disputes through an informal mediation process. regarding mediation the public agency process, the use of current LEA There were a few requests for may not deny or delay the parent’s right employees as mediators would make clarification of who may be mediators, to due process hearing. The comments mediation a much less attractive such as whether or not former LEA suggested changing § 300.506(d)(1) to alternative to parents. The regulatory employees would be able to be state that the procedures may ‘‘request’’ provisions regarding the impartiality of mediators. There were comments asking not ‘‘require’’ the parents to learn about mediators and the requirement of for more restrictions on who could be a mediation. A few comments requested a specialized expertise in laws and mediator and comments asking for specific definition of the term regulations relating to the provision of fewer restrictions, especially where a ‘‘disinterested party’’ and parent special education and related services public school district already has information and training centers, as well are intended to be more stringent than certain mediators under state law or as clarification of any supervision the Federal requirements for impartial regulation. The latter commenters required over disinterested parties. hearing officers to ensure that mediation believe the restrictions should only There were also comments which asked is a more attractive option for parents, address employees of an agency that is that LEAs be required to mediate if the and an effective option for both parties. providing direct services to a child who parents agree, as well as be required to The use of a single mediator in the

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00207 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12612 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations mediation process is important for clear With regard to the provision in final regulations, Notes 1 and 2 would communication and accountability. paragraph (b)(6) of this section that be removed. Paragraph (b)(1)(iii) of this section, mediation discussions must be Changes: A new paragraph (b)(2)(ii) is which repeats statutory language, is confidential and may not be used in any added to specify that the mediator be clear that each mediation be conducted subsequent due process hearings or civil selected from the list on a random basis, by one mediator, as opposed to a panel proceedings, the Senate and House such as a rotation, or that both parties or multiple mediators. Committee Reports on Pub. L. 105–17 are involved in selecting the mediator Another factor that will determine the note that ‘‘nothing in this bill shall and agree with the selection of the success of mediation within a State is supersede any parental access rights individual who will mediate. Notes 1 the selection process for mediators. It is under the Family Educational Rights and 2 have been removed. Paragraph important to note that with respect to and Privacy Act of 1974 or foreclose (b)(3) has been revised to refer to the paragraph (b)(2) of this section, the access to information otherwise meetings to encourage the use of Senate and House Committee Reports available to the parties.’’ (S. Rep. No. mediation. on Pub. L. 105–17 include the following 105–17, p. 27 (1997); H. Rep. No. 105– Another new paragraph (c)(2) is statement: 95, p. 107 (1997)). The Reports also added to clarify that payment for ** * the bill provides that the State shall include an example of a confidentiality mediator services does not make the maintain a list of individuals who are pledge, which makes clear that the mediator an employee for purposes of qualified mediators. The Committee intends intent of this provision is to protect impartiality. that whenever such a mediator is not selected discussions that occur in the mediation Impartial Due Process Hearing; Parent on a random basis from that list, both the process from use in subsequent due Notice (§ 300.507) parents and the agency are involved in process hearings and civil proceedings selecting the mediator, and are in agreement under the Act, and not to exempt from Comment: There were several with the individual who is selected. (S. Rep. discovery, because it was disclosed comments requesting changes to No. 105–17, p. 27 (1997); H. Rep. No. 105– § 300.507. With regard to the model 95, p. 106 (1997).) during mediation, information that otherwise would be subject to form for hearing requests, some The success of a mediation system discovery. commenters requested that where the will be closely related to both parties’ Regarding the perceived conflict public agency requests the due process trust and commitment to the process. between § 300.506(d)(1) and (d)(2), the hearing, the public agency would The first test of that process will be the mediation process, including meetings provide the notice requested of the selection of the mediator. Parties that to discuss the benefits of mediation, parents at § 300.507(c)(1) and (c)(2). mistrust the mediator selection process should not be used to deny or delay Others requested that parent may be less likely to reach agreement on parents’ due process hearing rights. The information and training centers and the substantive issues. Therefore, reflecting purpose behind § 300.506(d)(2) is to general public be required to assist in the language of the Committees’ reports ensure that in situations where parents developing the model form required in on this topic, a change should be made are unwilling or unable to cooperate § 300.507(a)(3). to the regulation to specify that if a with a public agency regarding a The Department also received mediator is not selected on a random meeting to discuss the benefits of comments asking that § 300.507(c)(4) be basis from the State-maintained list, mediation, there is still a timely modified so that LEAs can ask a hearing both parties are involved in selecting resolution of the due process hearing. In officer to delay a due process hearing for the mediator and are in agreement with general, a hearing officer should not a reasonable period of time until the the selection of the individual who will extend the timelines for a due process parents provide the district with the mediate. hearing based on the fact that there is a required pre-hearing notice. Some Like hearing officers, mediators must pending mediation in the case unless commenters suggested that parents be be able to be paid by the State, without both parties have agreed to that informed of free and low cost legal impacting their impartiality. Language extension. If mediation is used in the advocacy as a matter of routine, not just similar to that used for impartial hearing resolution of a State complaint, it after requesting a due process hearing. officers should be added to the should not be viewed as creating, in and Other commenters sought additional regulation to clarify that even though a of itself, an exceptional circumstance language specifying that LEAs be barred mediator is paid for his or her services justifying an extension of the 60 day from coming to a due process hearing as a mediator, such payment does not time line. While the State or local with a new IEP developed without make that mediator an employee for educational agency may require that the direct parental input and based on the purposes of impartiality. parent attend the meeting to receive an information given by the parents in the The regulatory requirement for the explanation of the benefits of mediation hearing request. use of a qualified mediator instructed in and to encourage its use, a parent’s Commenters also requested that the effective mediation techniques will failure to attend this meeting prior to statutory provisions regarding attorneys’ ensure that decisions about the the due process hearing should not be fees at sections 615(i)(3)(D) and (F) of effectiveness of specific techniques, used to justify delay or denial of the the Act be included in this regulation. such as the need for face-to-face hearing or the hearing decision. Others requested that the term ‘‘or negotiations, telephone It is not necessary to define the terms refusal to initiate or change’’ be added communications, or IEP implementation ‘‘parent training and information to § 300.507(c)(2)(iv). provisions, will be based upon the centers’’ or ‘‘community parent resource Some commenters asked that the mediator’s independent judgment and center’’ since they are established by Department delete Note 1, while others expertise. Therefore, it is not necessary statute. To allow flexibility with regard asked that Note 1 be written into the to regulate on these issues. to the designation of a ‘‘disinterested regulation itself. The enforceability of a mediation party’’ by the parent organizations or an Discussion: The prior written notice agreement, like the enforceability of appropriate alternative dispute requirement of § 300.503 is sufficient to other binding agreements, including resolution entity, no definition would inform parents of what the public settlement agreements, will be based be provided. Consistent with the general agency is proposing. Therefore, any upon applicable State and Federal law. decision to remove all notes from these hearing request by the public agency on

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00208 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12613 that proposal would not require an Changes: Section 300.507(c)(2)(iv) is and examinations for impartial hearing additional notice by the agency. amended to make clear that a problem officers, decisions about training and Another notice would be repetitive and may have arisen as a result of an hearing officer selection, including the overly burdensome. Likewise, many agency’s proposal or refusal to act. use of sublists, should be left to States. public agencies already have existing Notes 1 and 2 have been removed. Since hearing officers’ decisions are subject to judicial review, there is a model forms for hearing requests. Since Impartial Hearing Officer (§ 300.508) the statute and regulation specify the strong incentive for States to choose information which parents must Comment: The Department received qualified hearing officers, conduct disclose in the hearing request, several comments requesting appropriate training and establish additional input from parent amendments to the regulation on standards of expertise. Hearing information and training centers or the hearing officers in two main aspects— decisions that are not soundly decided general public is unnecessary and qualifications and public notice of such will lead to further litigation, be more would create additional burdens qualifications. In the first area, likely to be reversed and create higher without much benefit. commenters stated that persons who are costs. In addition, reviewing courts are The Senate and House Committee employees of any LEA, persons who less likely to give judicial deference to Reports on Pub. L. 105–17 note that were employees of an SEA or LEA and a hearing officer where his or her attorneys’ fees to prevailing parents may were involved in the care or education qualifications show no expertise in the be reduced if the attorney representing of any child in the past 5 years, and area of special education. the parents did not provide the public attorneys who represent primarily the Changes: None. agency with specific information about school district or parents cannot be hearing officers. In the second area, Hearing Rights (§ 300.509) the child and the basis of the dispute commenters requested that hearing Comment: There were several specific described in paragraphs (c)(1) and (2) of officers be required to take training and comments regarding hearing rights. this section. With respect to the intent competency examinations designed by With respect to the additional of the new notice provision, the Reports this Department and supplemented with disclosure of information, some include the following statement: State-specific elements. Several commenters stated that the time frame ** * The Committee believes that the commenters also want SEAs to publish should be 5 school days, not business addition of this provision will facilitate an the criteria they use to choose hearing days, prior to a hearing, and the early opportunity for schools and parents to officers and that the list of all the recommendations should be clarified as develop a common frame of reference about hearing officers and their credentials be written recommendations which may be problems and potential problems that may remove the need to proceed to due process provided to parents requesting a due summaries of oral recommendations. A and instead foster a partnership to resolve process hearing. Commenters also few commenters also suggested that problems. (S. Rep. No. 105–17, p. 25 (1997); suggested that the regulation require § 300.509(a)(3) and (b) use the same H. R. Rep. No. 105–95, p. 105 (1997)). that if a sublist of hearing officers is standard of business days to avoid generated for a particular hearing, the confusion. The changes to § 300.513 clarify the parents or their representative be With respect to the parental hearing potential for reduction of attorneys’ fees present at the meetings where the rights, some commenters suggested that in cases where proper notice is not sublist is selected. Further, commenters since it sometimes not in the interest of given by the parents’ attorney. asked that the statement of the the child to be present at the hearing, Therefore, a reference to attorneys’ fees qualifications of hearing officers be the parents should have the right to is not necessary here. updated annually and the impartiality have the child who is the subject of the Matters such as what evidence should of a hearing officer be determined by an hearing present for only a portion of the and should not be presented and objective standard, such as a State’s hearing. There were also comments that requests for extensions of time, should Code of Judicial Conduct. a free written record is too expensive for be handled on a case-by-case basis by Discussion: The regulation, in States to provide, as well as comments the impartial hearing officer presiding conjunction with State ethics that a verbatim recording should be at over the hearing. It has also been the requirements for attorneys and judges, no cost to the parents. Department’s long-standing position are sufficient to address the concerns With respect to general hearing rights, that Part B of the Act and the raised by commenters with regard to commenters asked that evidence that regulations under Part B do not provide potential conflicts. In States where there has not been disclosed within the any authority for a public agency to are no formal ethical standards for appropriate time frame not be allowed deny a parent’s request for an impartial administrative hearing officers, the issue unless agreed to by both parties or for due process hearing, even if the agency should be addressed within the State. A good cause shown for the failure to believes that the parent’s issues are not prior employee of an LEA or SEA disclose in advance. Commenters also new. Thus, the determination of should not be barred from serving as a asked that the regulations state that the whether or not a parent’s request for a hearing officer where there is no only pre-hearing discovery allowed is hearing is based on new issues can only personal or professional interest that the exchange of information set forth in be made by an impartial hearing officer. would conflict with his or her § 300.509. Finally, commenters The request for modification of the objectivity in the hearing. Hearing requested that hearing decisions be regulation at § 300.507(c)(2)(iv) to officers, like judges, are capable of made available to the public at least on include situations where the nature of making independent determinations of a quarterly basis. the problem is the public agency’s potential conflicts of interest, including Discussion: The establishment of two refusal to initiate or change the a determination of whether he or she separate time frames for the prehearing provision of a free appropriate public has knowledge or information about a disclosure of documents because the education, is consistent with the particular child derived from outside term ‘‘5 business days’’ is used in requirements of § 300.507(a)(1). In light the hearing process which would § 300.509(b)(1) and the term ‘‘5 days’’ is of the general decision to remove all impact upon his or her impartiality. used in paragraph (a)(3) of this section notes from these final regulations, Notes Although numerous commenters will lead to confusion and additional 1 and 2 should be removed. asked for national standards, training, litigation and costs. In order to prevent

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00209 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12614 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations this, the time frame for disclosure format. Other comments requested that Timelines and Convenience of Hearings would be set to 5 business days prior to hearing officers be allowed to amend and reviews (§ 300.511) the hearing. This change would be decisions once they are final to correct Comment: A few comments were consistent with prior interpretations by for technical errors, similar to Rule 60 received regarding § 300.511 which the Department, which recognized that of the Federal Rules of Civil Procedure. requested that (1) the 45 and 30 day the intent of prehearing disclosure is to One commenter asked that Notes 1 timelines be specified as 45 and 30 avoid surprise by either party at the and 2 be incorporated into the school days; (2) it be clear that hearing hearing. The hearing officer has regulation itself and several commenters officers have discretion to deny requests discretion to determine the pointed out that the reference in for extensions of time since extensions consequences of not meeting the § 300.510(b)(2)(iii) should be to may delay hearings for a long time; and disclosure time line, and may prohibit § 300.509 not § 300.508. (3) delete § 300.511(a) or change it to the introduction of the evidence or may Discussion: There were two make the SEA responsible for timelines. allow the rescheduling of the hearing so typographical errors in the proposed Discussion: There is not sufficient that timely disclosure is possible. regulation with respect to references to consensus or evidence of need to change Some States chose to allow the use of other sections. In § 300.510(b)(2)(iii) the other discovery procedures prior to a the long-standing interpretation of the reference to § 300.508 should be to hearing and review timelines from due process hearing. States should § 300.509 consistent with the prior continue to have this discretion as they calendar days to ‘‘school days.’’ In regulatory reference. In § 300.510(d), the addition, the potential impact of no are not prohibited from doing so by Part reference to § 300.511 should be to B. ‘‘school days’’ during the summer § 300.512, also consistent with the prior months would make the delay in Access to a written verbatim record of regulatory reference. the hearing is vital for parents to parents’ access to due process hearings The reference in § 300.510(b)(vi) to exercise their full due process rights. and decisions unreasonable. written findings and decision should be Although there are costs associated with The use of the word ‘‘may’’ instead of changed to be consistent with the statutorily mandated shift of the ‘‘shall’’ in § 300.511(c), means that the § 300.509(a)(5) and allow the choice of choice between an electronic or written granting of specific extensions of time electronic or written findings of fact and record of the hearing from the public are at the discretion of the hearing or decision. agency, as newer technologies are better review officer. It is not necessary to It is not necessary to regulate on capable of generating accurate clarify that this discretion means that whether hearing officers are allowed to transcriptions, these costs will decrease. requests for extensions can be denied as Parents must continue to have the amend their decisions for technical well as granted since this is implicit in choice to have the child be present for errors. This matter is left to the the regulation. all or part of the hearing, at their discretion of hearing officers and States; There is no need to change the discretion. For some youth with however, proper notice should be given regulation to reflect the State’s disabilities, observing and even to parents if State procedures allow for responsibility for compliance with participating in the hearing will be a amendments and a reconsideration timelines because in addition to the self-empowering experience in which process may not delay or deny parents’ language in this regulation, § 300.600 they can learn to advocate for right to a decision within the time continues to hold the State ultimately themselves. This long-standing choice periods specified for hearings and responsible for noncompliance. should not be taken away from parents. appeals. Changes: None. It has been the Department’s position This choice takes on added significance Civil Action (§ 300.512) in light of the new provisions that allow that the SEA may conduct its review States to transfer parental rights to either directly or through another State Comment: A commenter pointed out students at the age of majority. Under agency acting on its behalf. However, that § 300.512 had a few typographical this new authority, there may be more the SEA remains responsible for the errors since the reference to situations where students will have to final decision on review. In addition, all § 300.510(b)(2) should be to be present at and participate in due parties have the right to continue to be § 300.510(b)(1) and the reference to process hearings. represented by counsel at the State § 300.510(e) should be to § 300.510(b). Implicit in the requirement that administrative review level, whether or Discussion: There were typographical hearing decisions be made available to not the reviewing official determines errors in this section in the NPRM, the public, is the requirement that they that a further hearing is necessary. If the however the reference to § 300.510(b)(2) be made available within a reasonable reviewing official decides to hold a should be to § 300.510(b) and the amount of time. Therefore, no specific hearing to receive additional evidence, reference to § 300.510(e) should be to time requirement is needed in the the other rights in § 300.509 relating to § 300.510(b). regulation. hearings also apply. However, in light of Changes: The reference to Changes: Paragraph (a)(3) of this the general decision to remove all notes § 300.510(b)(2) has been changed to section is changed to require disclosure from these final regulations, Notes 1 and § 300.510(b) and the reference to at least 5 business days before the 2 would be removed. § 300.510(e) has been changed to hearing. Changes: In § 300.510(b)(2)(iii) the § 300.510(b). reference to § 300.508 has been changed Finality of Decision; Appeal; Impartial to § 300.509. In § 300.510(d), the Attorneys’ Fees (§ 300.513) Review (§ 300.510) reference to § 300.511 has been changed Comment: Many commenters Comment: Several comments to § 300.512. The reference in requested that § 300.513 include the regarding the availability of SEA hearing § 300.510(b)(2)(vi) to written findings provisions from sections 615(i)(3)(D) decisions, asked that such decisions be and decision has been changed to be and (F) of the Act regarding instances distributed directly to various consistent with § 300.509(a)(5) and where attorneys fees are prohibited or organizations and allow parents to allow the choice of ‘‘electronic or may be reduced. Several commenters receive the findings under written findings of fact and decision.’’ also asked that a note be added to state § 300.510(b)(2)(vi) in an electronic Notes 1 and 2 have been removed. that attorneys’ fees may be awarded if

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00210 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12615 an IEP team meeting occurs after a The regulation has been amended to authorized by the General Education hearing request but before the hearing. include all of the provisions of section Provisions Act. This position is Several commenters requested that 615(i)(3)(C)–(G) of the Act. The note consistent with the Department’s prior the note on hearing officers be deleted, following this section has been interpretation. stating that the awarding of attorneys’ removed. It is important to note that these fees should be left to the courts. One provisions would only apply where commenter stated that if hearing officers Child’s Status During Proceedings there is a dispute between the parent are allowed to award attorneys’ fees, (§ 300.514) and the public agency that is the subject they should be trained in, and use, the Comment: Although a few of administrative or judicial criteria used by Federal courts in commenters agreed with the provision proceedings. If there is no such dispute determining attorneys’ fees. in § 300.514(c), many commenters that is the subject of a proceeding, then One commenter also asked that objected to it. Section 300.514(c) states the placement may be changed and this § 300.513(b) be deleted. that if the decision in a due process section does not apply. Discussion: By inserting all the hearing or administrative appeal agrees This section does not permit a child’s statutory provisions regarding attorneys’ with the parents that a change of placement to be changed by the public fees into the regulations, most of the placement is appropriate, the decision agency during proceedings regarding a suggestions will be adequately must be treated as an agreement complaint, unless the parents and addressed and additional clarity will be between the State or local agency and agency agree otherwise. While the added. the parents for purposes of maintaining placement may not be changed Based upon the absence of consensus, the child’s placement pursuant to unilaterally by the public agency, this the Department will continue to allow § 300.514(a). Commenters saw this does not preclude the parent from maximum flexibility to States for provision as one-sided and suggested changing the placement at their own structuring the process by which that it be limited to where there is expense and risk. It is also important to parents who are prevailing parties under agreement by all the parties. In the note that this provision does not Part B of the Act may request attorneys’ alternative, commenters suggested that preclude the agency from using its fees reimbursement. the provision be deleted and that normal procedures for dealing with It is important to maintain paragraph decisions as to whether a hearing children who are endangering (b)(1) of this section, because the limited officer’s or review official’s decision themselves or others, including, as Federal resources under the Act should constitutes an agreement be left to the appropriate to the circumstances, be used to provide special education courts. seeking injunctive relief from a court of and related services and not be used to Commenters requested a definition of competent jurisdiction. In addition, promote litigation of disputes. Further, the term ‘‘current placement,’’ with even where there is disagreement that paragraph has been modified to some suggesting that the definition between the parents and the public make it clear that the prohibition against include the current location where the agency, the provisions of § 300.521 still using Part B funds for attorney’s fees child receives services. allow a hearing officer to change the also applies to the related costs of a Some of the comments indicated placement of a child with a disability party in an action or proceeding, such confusion as to which proceedings are who is substantially likely to injure self as depositions, expert witnesses, referenced in § 300.514. Commenters or others to an appropriate interim settlements, and other related costs. In were unsure whether the regulation alternative educational setting for not addition, a new paragraph (b)(2) of this references only the administrative and more than 45 days. section has been added to clarify that judicial due process proceedings Paragraph (c) is based on long- the prohibition in paragraph (b)(1) does established by section 615 of the Act, or standing judicial interpretation of the not preclude a public agency from using also the State complaint procedures Act’s pendency provision that when a funds under Part B of the Act to conduct established by §§ 300.660–300.662. State hearing officer’s or State review an action or preceding under section Commenters requested that when official’s decision is in agreement with 615 of the Act, such as the cost of referring to parents in this regulation, parents that a change in placement is paying a hearing officer and providing students who have reached the age of appropriate, that decision constitutes an the place for conducting the action or majority also be referenced. Further agreement by the State agency and the proceeding. clarification also was requested parents for purposes of determining the In light of the general decision to regarding a parent’s right to remove his child’s current placement during remove all notes from the final or her child from the current placement subsequent appeals. See, e.g., Burlington regulations under the Act, the note and place them elsewhere during the School Committee v. Dept. Of Educ., following this section in the NPRM pendency of the applicable proceedings 471 U.S. 359, 371 (1985); Susquentia would be removed. The proposed note if the parent believes FAPE is not being School District v. Raelee S., 96 F.3d 78, was merely intended to suggest that provided. 84 (3rd Cir. 1996); Clovis Unified v. States could choose as a matter of State Discussion: The provisions Office of Administrative Hearings, 903 law to permit hearing officers to award maintaining the child’s current F.2d 635, 641 (9th Cir. 1990). Paragraph attorneys’ fees to parents who are educational placement pending (c) of this section incorporates this prevailing parties under Part B of the proceedings regarding a complaint is a interpretation. However, this provision Act, and not to require that they do so, right afforded to parents to protect does not limit either party’s right to seek or imply that IDEA would be the source children with disabilities from being appropriate judicial review under of the authority for granting hearing subjected to a new program that parents § 300.512, it only shifts responsibility officers that role. If a State allows believe to be inappropriate. The for maintaining the parent’s proposed hearing officer’s to award attorney’s provisions are intended to apply only to placement to the public agency while an fees, requirements regarding training on the due process proceedings and the appeal is pending in those instances in attorneys fees would be a State matter. subsequent civil action, if any, brought which the State hearing officer or State Changes: Paragraph (b) has been under section 615 of the Act, and not to review official determines that the revised to prohibit use of funds the State complaint procedures in parent’s proposed change of placement provided under Part B for related costs. §§ 300.660–300.662, which are is appropriate.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00211 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12616 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

The term ‘‘current placement’’ is not surrogate parent and rescind such other interest that conflicts with the readily defined. While it includes the designation at any time. interest of the child and has knowledge IEP and the setting in which the IEP is Some comments also stated that and skills that will ensure adequate implemented, such as a regular § 300.19(b)(2) conflicts with § 300.515 representation of the child. classroom or a self-contained classroom, because in § 300.515 the appointment of Paragraph (a) of this section requires the term is generally not considered to a surrogate parent is mandatory if the that the public agency ensure that the be location-specific. In addition, it is not child is a ward of the State, regardless rights of the child are protected if the intended that a child with disabilities of whether the child has a foster parent child is a ward of the State. Paragraph remain in a specific grade and class who meets the ‘‘parent’’ criteria in (b) sets out that the duty includes a pending an appeal if he or she would be § 300.19(b)(2). The comments determination of whether the child eligible to proceed to the next grade and recommended including an exception needs a surrogate parent and if so, the the corresponding classroom within that from the mandate of surrogate parent assignment of one. The proposed grade. appointments for any ward of the State regulation at § 300.19(b)(2) has been There is no need to add a reference to whose foster parent is a parent in renumbered at § 300.20 and now children with disabilities who reach the accordance with § 300.19(b)(2). clarifies that the definition of a parent age of majority in this regulation. The Discussion: There is insufficient may include a foster parent unless State transfer of parental rights at the age of evidence of a wide-spread problem of law prohibits it, and if certain other majority is discussed in another section irresponsible surrogate parents which conditions are met. In situations where of the regulations, § 300.517, and will would require regulatory procedures for a child who is a ward of the State has not be referenced in every other section termination. Therefore, the issue of the a foster parent who meets the definition to which it applies. need for procedures for termination of of parent in § 300.20 and the foster surrogates is left to the discretion of There is also no need to address the parent is acting as the parent, the public States. There is also insufficient parents’ ability to change the child’s agency should determine if there is a evidence of public agency retaliation placement unilaterally at their own need for a surrogate parent, and whether against surrogate parents. Since there expense since this issue is addressed in further steps are necessary to ensure are other civil rights statutes and § 300.403. that the rights of the child are protected. regulations that prohibit discrimination, Consistent with the general decision In most cases where the foster parent including retaliation, against meets the definition of a parent and is to remove all notes from these individuals who exercise their rights regulations, the note would be removed. acting as the parent, there would be no under Federal law, including the right need to appoint a surrogate, unless the Changes: The note has been removed. of individuals to assist individuals with agency determined that in the particular Surrogate Parents (§ 300.515) disabilities without retaliation or circumstances of the case a surrogate coercion, there is no need to address was necessary to ensure that the rights Comment: Several commenters this issue in this regulation. suggested that the regulation include of the child were protected. Proposed paragraph (c)(2)(i) of this Changes: Paragraph (c) has been clear procedures for terminating section reflected the statutory amended to permit a public agency to surrogate parents who do not requirement at section 615(b)(2) that a appoint as a surrogate an employee of a appropriately fulfill their surrogate parent not be an employee of nonpublic agency that provides only responsibilities and include in those the SEA, LEA or any other agency that non-educational care to the child. procedures the consideration of the is involved in the education or care of Paragraph (d)(1) has been deleted. student’s opinion. Relatedly, some the child. It is very important that the Paragraph (d)(2) has been redesignated commenters recommended that the surrogate parent adequately represents as paragraph (d) and the reference to regulation state that LEAs cannot the educational interest of the child, and paragraph (d)(1) is deleted. impose sanctions or threaten sanctions not the interests of a particular agency. if surrogate parents make decisions the In the case of other governmental Transfer of Parental Rights at Age of LEA opposes. agencies, even agencies that are not Majority (§ 300.517) There were also comments regarding involved in the education of the child, Comment: There were several the selection of surrogate parents. Some there is the possibility of a conflict comments on the transfer of rights for commenters asked that surrogates not be between the interest of the child and incarcerated youths which requested employees of private agencies who are those of the employee of the agency clarification whether the transfer occurs involved in the education or care of the because some educational decisions will regardless of age. child since there is a potential conflict have an impact on whether an Commenters also requested of interest where the public agency educational agency or some other clarification of what the transfer of contracts with and pays the private governmental agency will be rights to the child means for the parent, agencies to provide services for the responsible for paying for services for i.e., does the parent retain the right to child. Another suggestion was that child the child. In situations where a child is any of the due process protections. welfare workers not be surrogate in the care of a nonpublic agency that Commenters suggested that § 300.517 parents, but that foster parents be has no role in the education of the child, should refer to § 300.347(c) which deals allowed, if qualified. One commenter however, an employee of that agency with when and how students are to be agreed that representatives of the may be the person best suited to serve notified of their impending transfer of welfare system should not be surrogate as a surrogate for the child because of rights. There was also a request for parents but believed foster care his or her knowledge of the child and clarification regarding parental representatives should also be barred. concern for the child’s well-being and involvement in modifications to IEPs or One commenter asked that the would not, simply by virtue of his or her placements when there is a bona fide regulation require public agencies to employment situation, have an interest security or compelling penological assign surrogate parents designated by a that could conflict with the interest of interest. parent, provided such persons meet the the child. In such a case, that individual Commenters also requested guidelines qualifications, thereby giving parents should not be prohibited from serving as for determining if a student cannot the right to voluntarily designate a a surrogate as long as he or she had no provide informed consent with respect

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00212 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12617 to his or her educational program. Some with disabilities convicted as adult and parent could be an appropriate interpreted the proposed regulation as incarcerated in adults prisons whose individual to represent the educational requiring a competency determination parental rights have not transferred at interests of the student. prior to every transfer, deemed this the age of majority. These individuals Changes: Paragraph (b) has been unreasonable, and proposed that notice would have the same rights as other revised to make clear that it only applies to parents is sufficient. Some youth with disabilities whose parental if a State has a State mechanism lesser recommended that the IEP team make rights have not transferred as set out in competency proceedings. the decision of whether a competency section § 300.345. There is also no Discipline in general assessment is required and appoint a further need to address IEP and surrogate when the team decides the placement requirements that do not (For a general overview of major changes in child is not able to provide informed apply to modifications of IEP or the discipline provisions from the NPRM to consent for his or her educational placement for youth with disabilities these final regulations, please refer to the preamble.) program. Several commenters asked convicted as an adult and incarcerated why the term ‘‘another appropriate in an adult prison because the Comment: Several commenters asked individual’’ was used instead of provisions are already set out at that the regulations include only the ‘‘guardian or surrogate parent’’ as § 300.311(c)(2). statutory language with respect to all defined in § 300.515. The requirement in paragraph (a) of provisions concerning discipline. The Some commenters asked that the this section regarding State provision for vast majority of commenters, however, Department allow a State which doesn’t transfers of parental rights at the age of asked that the regulations provide more have a law regarding transfer of rights at majority under State law generally does specificity than the statute regarding age of majority to implement an interim not require a statutory change if the discipline. In many cases, these policy pending legislative change. State already has a State law regarding commenters provided proposals for how Commenters also recommended that age of majority that applies to all the regulations should interpret the an independent advocate, not a teacher children (except in cases of statute. Others asked that the or LEA administrator but who is paid by incompetency). A State may not transfer regulations give schools the ability to the LEA, be available for each student rights at age of majority in the absence deal differently with children with to whom rights have transferred, to be of a State law on age of majority that articulation problems and those with present at all IEP discussions when applies to all children, except those behavior disorders. parents are not present so that coercion children determined incompetent under Discussion: Including only the by the school is prevented. State law. statutory language on discipline in the Discussion: It is not necessary to With regard to the transfer of rights in final regulations, would not be helpful. delineate the specific parental rights situations where the competency of an The vast majority of the comments that transfer under this section because individual with a disability is received concerning discipline the statute and regulations fully set out challenged, currently, most States have demonstrate overwhelmingly the need the rights afforded to parents under Part laws, rules, and procedures that allow a to regulate in order to clarify the B. The statute and paragraph (a)(1) of general determination of incompetency statutory language. To rely solely on the this section allow States, under State for an individual with a disability who statutory language would encourage law, to transfer all parental rights to has reached the age of majority. These needless litigation. There is no statutory children with disabilities who reach the laws and procedures usually require a basis for treating children with age of majority, with the exception of formal proceeding and provide for the disabilities differently under the the right to notice which is both appointment of a general guardianship discipline provisions because of the retained by the parents and transfers to where the individual is found not to be nature of their disability. the student. For children with competent under the applicable legal Change: None. disabilities who are incarcerated in standard. The transfer of the Part B Authority of school personnel adult or juvenile Federal, State or local parental rights under State law must be (§ 300.520) correctional institutions, the State, consistent with State competency laws, under State law, may transfer all that is, where parental rights transfer to Comment: A number of commenters parental rights, including the notice the individual at the age of majority, were concerned about the provisions in rights, at the age of majority. and the individual is found to be the proposed regulations that required The IEP provisions regarding notice incompetent, the appointed guardian development of behavioral assessment prior to the age of majority, do not have would exercise Part B rights pursuant to plans and determinations regarding to be explained or referenced in this their guardianship. In some States, there manifestation after the child had been section of the regulations. While the may be additional laws and procedures removed for more than 10 school days requirement in § 300.347(c) that that allow for a lesser determination of in a school year because they believed beginning at least one year before the competency for specific purposes, such that these responses should only be student reaches the age of majority as competency for providing informed required if the removal constituted a under State law the IEP must include a consent with respect to the individual’s ‘‘change of placement.’’ These statement that the student has been educational program. commenters asked that the term informed of the rights that will transfer The special rule at § 300.517(b) only ‘‘change of placement’’ be defined in the to him or her upon reaching the age of applies to States who, under State law, regulation as indicated in Note 1 to the majority, does relate to this regulation, allow for this lesser determination of proposed regulations, in order to it is separate and distinct from the competency—a determination of the incorporate what they saw as the law’s notice provisions in § 300.517(a)(3) ability to provide informed consent with intent to allow building-level requiring notice to the parent and child respect to the educational program of administrators some discretion to at the time of transfer—when the child the student. Under the provision in the temporarily remove a child from their actually reaches the age of majority. special rule that specifies appointing current educational placement if This regulation does not need to ‘‘the parent, or, if the parent is not necessary to prevent disruption or address specifically the right to parental available, another appropriate ensure the safety of other children. participation in IEP meetings for youth individual,’’ a guardian or surrogate Many of these commenters asked that

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00213 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12618 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations the regulations clarify the distinction support for review of the IEP for any minor infractions of school rules by between removal of a student for short suspension that in the judgment of children with disabilities, yet ensures disciplinary reasons and removal of a the parent or other member of the IEP that children with disabilities are not student for behavior management team, requires reconsideration of cut off from educational services and purposes. behavioral interventions or other IEP that their behavior is appropriately Some commenters supported Note 1 revisions. Some commenters noted that addressed. as it clarified that schools continued to paragraph (c) needed further In order to clarify the ability of school have the ability to remove children with clarification, as school personnel cannot personnel to temporarily remove a child disabilities from their current placement reasonably be expected to predict future from the current educational placement for limited periods of time when conduct of a child. when necessary to ensure the safety of necessary, even though the child had Discussion: The obligation to conduct other children or to prevent disruption previously been removed earlier that a functional behavioral assessment or to of the learning environment, the school year. Some commenters asked review an existing behavioral concept of ‘‘change of placement’’ that who is contemplated to be making the intervention plan is not linked in the was referred to in Note 1 to this section determination regarding a change in statute only to situations that constitute in the NPRM should be incorporated placement. a ‘‘change of placement.’’ As a policy into the regulations. The Department Some commenters proposed matter, it makes a great deal of sense to has long interpreted the IDEA to permit modifications to the change of attend to behavior of children with schools to remove a child with a placement standard described in Note 1 disabilities that is interfering with their disability from his or her current to this section to recognize that there education or that of others, so that the placement when necessary, even though could be circumstances when continued behavior can be addressed, even when the child had previously been removed short term suspensions may be used that behavior will not result in a change earlier that school year, as long as the without reconvening the IEP team if the in placement. In fact, IDEA now removal does not constitute a ‘‘change IEP team has addressed the behavior emphasizes a proactive approach to of placement.’’ through changes to the IEP or placement behaviors that interfere with learning by The ‘‘change of placement’’ and agrees that removal from the child’s requiring that, for children with description will also make clear that the current educational placement is an disabilities whose behavior impedes new statutory language at section appropriate intervention. their learning or that of others, the IEP 612(k)(1)(A) of the Act regarding the Other commenters believed that the team consider, as appropriate, and authority of school personnel to remove regulations should provide even more address in the child’s IEP, ‘‘strategies, children with disabilities for not more latitude to schools about when to including positive behavioral than 10 school days, to the same extent convene an IEP meeting to review or interventions, strategies, and supports to as nondisabled children, does not develop a behavior assessment plan and address the behavior.’’ (section permit using repeated disciplinary conduct a manifestation determination, 614(d)(3)(B)(i)). removals of 10 school days or less as a when for example, the behavior On the other hand, there is merit to means of avoiding the normal change of occurred repeatedly, or involved minor the argument that schools should not placement protections under Part B. offenses. Some of these commenters have to repeatedly convene IEP team Whether a pattern of removals thought that the IEP team should have meetings to address the behavior of constitutes a ‘‘change of placement’’ the discretion to determine the need for children who already have behavior would be determined on a case by case a behavioral assessment or behavioral intervention plans, unless there is a basis by the public agency and subject intervention plan on an individual need. The position that services and the to review through due process and basis. development of a behavioral assessment judicial proceedings. The regulation Some commenters believed that plan are not triggered if a child with concerning change of placement would paragraph (c) of the proposed disabilities is removed from his or her only apply to removals for disciplinary regulations (and similar provisions in current placement for 10 school days or reasons. §§ 300.121 and 300.523(b)) exceed less in a given school year is based on If a child who is being removed from statutory authority by permitting school the language of the statute at section his or her current educational authorities to remove a child with 612(a)(1)(A) and section 615(k)(1)(B), as placement has already been the subject disabilities from the child’s current interpreted in light of the legislative of a special IEP team meeting to develop educational placement for up to 10 history of the Act, which notes that the a behavioral intervention plan or review school days in a school year before the statute was designed to ‘‘reinforce and its implementation, the IEP team should behavior assessment plan, services, or clarify the understanding of Federal not have to meet to review that plan as manifestation determination must be policy on this matter, which is currently long as the team members individually done. Many of these commenters found in the statute, case law, review the plan, unless one or more of indicated that any suspension is an regulations, and informal policy the team members believe that the plan indication that the child with a guidance.’’ (S. Rep. No. 105–17, p. 28; needs to be modified. In this way, the disability is having problems and the H.R. Rep. No. 105–95, p. 108 (1997)). IEP team will be monitoring the school should be required to initiate the In light of the Department’s implementation of the behavioral behavioral assessment plan at the longstanding position that children with intervention strategies in the IEP or earliest indication of difficulty. For the disabilities could be removed from their behavioral intervention plan but would same reasons, these commenters asked current educational placement for not not have to repeatedly reconvene each that the regulations not include more than 10 consecutive school days time removals from the child’s current references to suspensions without the without educational services, the 10 day placement are carried out. provision of educational services. in a school year window before the In light of the comments received and Some commenters basically agreed educational services and behavioral the reasons previously discussed, with the position taken in paragraph (c) assessment plan are triggered is a proposed Note 2 would be deleted. and §§ 300.121 and 300.523(b) but reasonable interpretation of the statute. Comments concerning the timing of believed that the content of Note 2 This interpretation gives school officials manifestation determinations, and should be strengthened by adding reasonable flexibility for dealing with changes made in response to those

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00214 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12619 comments are addressed in this receive the services specified on his or personnel may order removals of a child attachment under § 300.523. her IEP and continue to participate with with a disability from the child’s current Change: A new section § 300.519 has nondisabled children to the extent they placement for not more than 10 been added regarding change of would have in their current placement. consecutive school days so long as the placement in the context of removals Portions of a school day that a child had removal does not constitute a change in under §§ 300.520–300.529, reflecting been suspended would be included in placement under § 300.519. concepts from proposed note 1. Section determining whether the child had been Comment: A number of commenters 300.520(a)(1) has been revised to clarify removed for more than 10 cumulative were concerned that the term ‘‘carries’’ that more than one suspension each of school days or subjected to a change of in paragraph (a)(2)(i) is too narrow and which may be for up to 10 school days placement under § 300.519. wanted the regulation to also cover the would be permitted in a school year, as Whether a bus suspension would child who was in possession of a long as repeated suspensions do not count as a day of suspension would weapon at school, including instances constitute a change of placement, and depend on whether the bus when the child obtained the weapon at the removals are consistent with transportation is a part of the child’s school. Others thought that paragraph treatment of similarly situated children IEP. If the bus transportation is a part of (a)(2)(i) should apply to situations when without disabilities. Paragraph (a)(1) of the child’s IEP, a bus suspension would a child knowingly carries a weapon to this section also has been revised to be treated as a suspension under school, similar to the standard in clarify the need to provide services § 300.520 unless the public agency paragraph (a)(2)(ii) regarding knowing when a child with a disability has been provides the bus service in some other possession or use of illegal drugs. removed for more than 10 school days way, because that transportation is Discussion: The statutory language in a school year. Section 300.520(b) has necessary for the child to obtain access ‘‘carries a weapon to school or to a been revised to require, when a child is to the location where all other services school function’’ is ambiguous as to first removed for more than 10 school will be delivered. If the bus whether it includes instances in which days in a school year and for subsequent transportation is not a part of the child’s a child acquires a weapon while at removals that constitute a change in IEP, a bus suspension would not be a school. In light of the clear intent of placement, an IEP team meeting to suspension under § 300.520. In those Congress in the Act to expand the develop a functional behavioral cases, the child and his or her parents authority of school personnel to assessment plan and a subsequent would have the same obligations to get immediately address weapons offenses behavioral intervention plan or to to and from school as a nondisabled at school, the Department’s opinion is review an existing behavioral child who had been suspended from the that this language also covers instances intervention plan and its bus. However, public agencies should in which the child is found to have a implementation. Section 300.520(c) has attend to whether the behavior on the weapon at school that he or she been revised to specify that if the child bus is similar to behavior in a classroom obtained while at school. is subsequently removed and that that is addressed in an IEP and whether Change: None. removal is not a change in placement, bus behavior should be addressed in the Comment: A number of commenters the IEP team does not have to meet to IEP or behavioral intervention plan for asked for more clarification about the review the behavioral intervention plan the child. various provisions regarding removals unless one or more team members It is important that both school from a child’s current placement, believes that modifications are needed personnel and parents understand that suspensions of 10 days or less, 45-day to the plan or the plan’s school personnel may remove a child placements, and, for children whose implementation. Proposed Notes 1 and with a disability from his or her current behavior is determined not a 2 have been deleted. placement for not more than 10 school manifestation of their disability, other Comment: A number of commenters days at a single time, but that there is disciplinary measures, including the had suggestions for clarifications of the no specific limit on the number of days possibility of expulsion, related to one terms used in paragraph (a). Some in a school year that a child may be another. For example, some commenters wanted the regulations to specify removed. (See, discussion of § 300.121 asked for specificity about whether a whether days of suspension includes regarding when services must be child could be subject to a disciplinary days of in-school suspension, bus provided.) However, school authorities suspension, including the 45-day suspensions, or portions of a school day. may not remove a child with disabilities interim alternative educational setting Others asked whether an in-school from the child’s current educational placements more than once in a school suspension would be considered a part placement if that removal constitutes a year. of the days of suspension if the student change of placement under § 300.519, Some commenters asked whether the continued to receive the academic unless they are specifically authorized behavior assessment plan and instruction called for in the student’s to do so under § 300.520(a)(2) (school manifestation determination need to be IEP during that period. Others suggested personnel unilateral removal for done within the first 10 days of a 45-day that the term ‘‘suspension’’ be revised to weapons and drug offenses) or unless placement. Some asked whether schools specify that school personnel can order the parents of the child do not object to can keep children with disabilities in a short term suspension of 10 or fewer a longer removal or the behavior is the 45-day placement even if the consecutive school days or cumulative determined to not be a manifestation of behavior is determined to be a days which may exceed 10 school days the child’s disability. If a removal does manifestation of the child’s disability, or in a school year but do not constitute a constitute a change of placement under even if program adjustments in the change in placement. § 300.519 that is not permitted under child’s ‘‘current placement’’ are agreed Discussion: An in-school suspension § 300.520(a)(2), school personnel must on before the expiration of the 45-day would not be considered a part of the follow appropriate change of placement placement. days of suspension addressed in procedures, including prior parent Commenters also asked how the 45- paragraph (a) of this section as long as notice, and the right of the parent to day placement rules should be applied the child is afforded the opportunity to invoke the ‘‘stay-put’’ rule of § 300.513. when the behavior leading to the continue to appropriately progress in Change: Paragraph (a)(1) of this removal occurs in the last few days of the general curriculum, continue to section is revised to specify that school the school year. A few asked how 45-

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00215 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12620 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations day placements differ from any other proposed change of placement and systematic application of behavior removal for more than 10 days or therefore, may continue even if the change techniques. Some commenters whether 45-day placements should child’s behavior is determined to be a suggested that positive behavioral merely be considered exceptions to the manifestation of the child’s disability. interventions and strategies should ‘‘stay put’’ provision. Others also The purpose of §§ 300.520(a)(2) and include strategies and services designed inquired about the total number of days 300.521 placements is to enable school to assist the child in reaching behavioral that a child with disabilities could be personnel to ensure learning goals which will enhance the child’s suspended in a year. environments that are safe and learning and, as appropriate, the Others asked for clarity about whether conducive to learning for all and to give learning of others. Some asked whether school districts could suspend beyond those officials and parents the a functional behavior assessment is an the 10 day and 45 day periods opportunity to determine what is the evaluation requiring parent consent mentioned in this section and whether appropriate placement for the child. before it is done. Others asked whether children with disabilities could ever be Interim alternative educational a behavioral assessment could be a expelled. Some commenters asked that settings under § 300.520(a)(2) are review of existing data that can be the regulations emphasize the optional limited to 45 calendar days, unless completed at that IEP meeting. Some nature of the ability to use the 45-day extended under § 300.526(c) for a child asked whether a behavioral intervention placement and encourage the return of who would be dangerous to return to plan needed to be a component of a children with disabilities to their the child’s placement before the child’s IEP, and the relationship of this regular educational placement at the removal. The fact that school is in recess to the positive behavioral interventions earliest appropriate time. during a portion of the 45 days does not mentioned in the IEP sections of the Discussion: If parents and school ‘‘stop the clock’’ on the 45 days during regulations. personnel agree about a proposed the school recess. Discussion: In the interests of change of placement for disciplinary There is no specific limit on the total regulating only when necessary, no reasons, the rules concerning the number of days during a school year change is made regarding what amount of time that a child with a that a child with disabilities can be constitutes a functional behavioral disability may be removed from his or suspended. In addition, as explained in assessment, or a behavioral intervention her educational placement in §§ 300.520 more detail in the discussion under plan. IEP teams need to be able to and 300.521 do not have to be used. § 300.524, if a child’s behavior is address the various situational, However, services must be provided determined not to be a manifestation of environmental and behavioral consistent with the requirements of the child’s disability, the child may be circumstances raised in individual § 300.121(a). disciplined in the same manner as cases. A functional behavioral These regulations do not prohibit a nondisabled children, including assessment may be an evaluation child with a disability from being suspension and expulsion, except that requiring parent consent if it meets the subjected to a disciplinary suspension, FAPE, consistent with § 300.121(d), standard identified in § 300.505(a)(3). In including more than one placement in must be provided. other cases, it may be a review of a 45-day interim alternative educational The 45-day interim alternative existing data that can be completed at setting in any given school year, if that educational settings are not mandatory. the IEP meeting called to develop the is necessary in an individual case (e.g., If the parents agree with school officials assessment plan under paragraph (b)(1) a child might be placed in an alternative to a change in the child’s placement of this section. If under § 300.346 (a) setting for up to 45 days for bringing a there is no need to use a 45-day interim and (c), IEP teams are proactively weapon to school in the fall and for up alternative educational setting. In some addressing a child’s behavior that to 45 days for using illegal drugs at instances school officials or hearing impedes the child’s learning or that of school in the spring). officers may determine that a shorter others in the development of IEPs, those If a child engages in one of the period of removal is appropriate and strategies, including positive behavioral behaviors identified in § 300.520(a)(2) that a child can be returned to his or her interventions, strategies and supports in (carrying a weapon to school or a school current educational placement at an the child’s IEP will constitute the function or knowing possession or use earlier time. behavioral intervention plan that the of illegal drugs or selling or soliciting Change: None. IEP team reviews under paragraph (b)(2) the sale of a controlled substance at Comment: A number of commenters of this section. school or a school function), the school asked for guidance regarding the terms Change: None. may first remove the child for up to 10 in paragraph (b) regarding functional Comment: Some commenters stated consecutive school days (providing behavioral assessment, and behavioral that paragraph (b)(1) should not require services as necessary under intervention plan. Some asked that the development of appropriate § 300.121(d)) while convening the IEP functional behavioral assessment should behavioral interventions within 10 days team to determine the interim not be construed to be overly of removing a child from the current alternative educational setting under prescriptive. These commenters placement as it is operationally § 300.522. At the end of that 10 day believed that behavioral assessments unworkable. Some commenters asked period, or earlier, if feasible, the child should be flexible so that the team can that the regulations also require that the would be placed into the interim consider the various situational, IEP team determine whether an existing alternative educational setting for up to environmental and behavioral behavior plan has been fully 45 days. circumstances involved. implemented, and if not, take steps to The placements contemplated under Some commenters proposed that a ensure its implementation without §§ 300.520(a)(2) and 300.521 (removal functional behavioral assessment be delay. Other commenters stated that the by hearing officer based on defined as a process which searches for term suspension’’ in paragraph (b)(1) determination of substantial likelihood an explanation of the purpose behind a should be replaced with ‘‘removal.’’ of injury in current placement) are problem behavior, and that behavior Discussion: Paragraph (b)(1) in the specific exceptions to the obligation to intervention plan be defined as IEP NPRM was not intended to require the maintain the child in the child’s current provisions which develop, change, or development of appropriate behavioral placement if the parent disagrees with a maintain selected behaviors through the interventions within 10 days of

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00216 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12621 removing a child from the current for not more than 45 days if maintaining when a student is a danger to self or placement. Instead, it was intended to the child in the current placement is others. require that the LEA implement the substantially likely to result in injury to Discussion: The statute provides that assessment plan and ensure that the IEP the child or to others. the hearing officer must be able to team, after that assessment, develops In addition, if necessary, school determine that a public agency has appropriate behavioral interventions to officials can seek appropriate injunctive demonstrated by substantial evidence, address the child’s behavior and relief to move a child. The placements which is defined as beyond a implements those interventions as under §§ 300.520(a)(2) and 300.521 preponderance of the evidence, that quickly as possible. Because it is apply whether the behavior is or is not maintaining the child in the current unlikely that these steps could occur at a manifestation of the child’s disability placement is substantially likely to the same time, a change should be made under § 300.523. If the behavior is result in injury to the child or others. to the regulations to clarify that the LEA determined not to be a manifestation of This evidentiary standard requires that convene an IEP meeting, within 10 the child’s disability, the child may be the hearing officer weigh the evidence business days of removing the child, to subjected to the same disciplinary received from both parties, rather than develop an assessment plan, and, as action as a nondisabled child (which just information presented by the public soon as practicable on completion of could be a removal for more than 45 agency. Public agencies continue to that plan, to develop appropriate days) except that services must be have the right to seek injunctive relief behavioral interventions to address that provided consistent with § 300.121(d). from a court when they believe they behavior. This section also would be Change: None. have the need to do so. Hearing officers revised to clarify when the IEP team Comment: Some commenters asked in expedited due process hearings must would have to meet in instances in that paragraph (d) of the regulations meet the same standards of impartiality which there is an existing behavioral provide the complete definition of and knowledgeability as other hearing intervention plan. The commenters are ‘‘dangerous weapon’’ and ‘‘controlled officers under the Act. correct that the term ‘‘removal’’ should Change: None. substance.’’ Comment: Several commenters asked be used in paragraph (b)(1) rather than Discussion: It is not advisable to ‘‘suspension’’ because it applies to all that paragraph (a) of this section be provide the complete statutory revised to specify that the injury to the disciplinary actions under § 300.520(a). definitions of ‘‘dangerous weapon’’ and Change: Paragraph (b) has been child or others must be more than a ‘‘controlled substance’’ in the text of the amended by replacing ‘‘suspension’’ minor injury. Others asked that the regulations as the statute ties these with ‘‘removal’’ and to specify that the regulations not require that the child definitions to the content of other LEA convene an IEP meeting to develop would be an imminent threat to the an assessment plan, and as soon as Federal law. If, for example, the safety or health of other members of the practicable on completion of that plan, Controlled Substances Act were to be school community before the child to develop appropriate behavioral amended to change the definition of could be removed. interventions to address that behavior. ‘‘controlled substance’’ in section 202(c) Several commenters requested that Comment: Some commenters asked of that Act, the Part B regulatory paragraph (c) be revised to require the that the regulations permit school definition also would need conforming hearing officer to determine, rather than personnel, under § 300.520(a)(2), and amendments. In addition, the definition consider, whether the public agency has hearing officers, under § 300.521, to of ‘‘controlled substance’’ in section made reasonable efforts to minimize the remove for up to 45 school days as 202(c) of the Controlled Substances Act risk of harm in the child’s current opposed to calendar days. Other is extensive and extremely detailed. The placement. Other commenters asked commenters asked that the regulations Department will make this information that the regulations specify that if the use the term ‘‘calendar days’’ for all widely available through a variety of hearing officer finds that the current timelines in this section. other means. placement is inappropriate, the hearing Some commenters asked that the Change: None. officer shall order that the current regulations permit school personnel to Authority of Hearing Officer (§ 300.521) placement be made appropriate rather remove to a 45-day interim alternative than ordering an interim alternative educational setting for an assault. Other Comment: Several commenters stated educational setting. Further, if the commenters asked that the 45-day that the hearing officer under this hearing officer finds that the public limitation not apply to behavior that is section, in order to deal with dangerous agency has not made reasonable efforts determined to be not a manifestation of situations, must be able to immediately to minimize the risk of harm in the the child’s disability. remove a child without the requirement child’s current placement, they urged, Discussion: As explained in detail in of convening a hearing. A number of the hearing officer must order the public the discussion concerning the regulatory these commenters believed that the agency to make the reasonable efforts to definition of ‘‘day,’’ the statute uses the hearing officer under this section should minimize the risk of harm rather than term ‘‘school day’’ when that is be able to make a determination based ordering placement in an interim intended. It also would be inappropriate on a review of available information alternative educational setting. to use ‘‘calendar days’’ for all timelines presented by the LEA, much like an Discussion: No changes will be made in this section as the statute uses the LEA requesting a temporary restraining to the regulations regarding the amount term ‘‘10 school days’’ when that is order from a court. Other commenters of injury that would be substantially intended. asked that the regulations specify that likely to result if the child is not The statute does not authorize school the hearing officer must be impartial removed. In addition, no changes will personnel to remove children with and qualified to assess the child’s be made regarding a hearing officer’s disabilities to an interim alternative disability and the circumstances decision making. In fashioning educational setting for 45 days in cases surrounding the removal. appropriate relief, hearing officers will of an assault. However, under § 300.521, Several commenters asked that the exercise their judgement in the context a public agency may ask a hearing regulations explain that a school district of all the factors involved in an officer to order a child removed to an has the right to seek injunctive relief, individual case. interim alternative educational setting such as a temporary restraining order, Change: None.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00217 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12622 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

Comment: A number of commenters except that the removal may not setting under § 300.521, the hearing requested clarification of the term constitute a change of placement. officer is charged with determining ‘‘beyond a preponderance of the School personnel need the ability to whether the interim alternative evidence.’’ Others asked that the term be remove a child with a disability from educational setting meets the statutory revised as the ‘‘the preponderance of the the current educational placement requirements and not with selecting one evidence’’ as that is the highest under § 300.520(a)(1) and to provide that meets those requirements. evidence standard in civil litigation. educational services in some other Permitting the school personnel, in Discussion: The phrase ‘‘beyond a setting without waiting for an IEP team consultation with the child’s special preponderance of the evidence’’ is to make a determination about that education teacher, to initially select and statutory. alternative educational setting in order propose the interim alternative Change: None. to maintain a learning environment educational setting is less Determination of Setting (§ 300.522) conducive to learning for all children. administratively cumbersome for school At the same time there is a need to personnel than the scheme in the Comment: A number of commenters ensure that information about the proposed regulation and helps ensure asked that the regulations clarify the child’s special education needs and that there is no undue delay in relationship between the authority of current IEP be brought to bear in placement. The review of the proposed school personnel in § 300.520(a)(1) to decisionmaking about services to the placement by the hearing officer ensures order the removal of a child with a child during short removals and for that the setting will meet statutory disability for not more than 10 school those short periods before the IEP team standards, thus protecting the rights of days, and the requirement in § 300.522 can meet to determine appropriate the child. The hearing officer may revise that the alternative educational setting placement under § 300.520(a)(2) or a or modify the proposed placement, or be determined by the IEP team. These hearing officer determines the interim select some other placement as commenters noted that the school alternative educational setting under necessary to meet that statutory personnel need the authority to remove § 300.521. Therefore, a change should be standard. Of course, in proposing an under § 300.520(a)(1) without input made to § 300.522(a) to specify that the interim alternative educational setting, from the IEP team. IEP team determines the interim school personnel may rely on the A number of commenters requested alternative educational setting under judgments of the child’s IEP team if they clarification on when the IEP team must § 300.520(a)(2). choose to do so. This position would be make the determination of setting and A change to § 300.121(d) would accomplished through the regulatory where the child would be while that specify that school personnel, in change to § 300.121(d) mentioned determination was being made, consultation with the child’s special previously. The statute at section particularly for children with education teacher, determine the 615(k)(3)(A) is clear that when school disabilities who already had been interim alternative educational setting personnel are removing a child for a removed from their regular placement for removals under weapons or drug offense, the IEP team for 10 days during that school year. § 300.520(a)(1)(removals by school determines the interim alternative Some of these commenters noted that personnel for 10 school days or less). A educational setting. when a child is removed under child whose behavior subjects him or Change: This section has been §§ 300.520(a)(2) or 300.521 the her to an interim alternative educational amended to specify that the alternative alternative setting needs to be setting under § 300.520(a)(2)(weapons or educational setting referred to in immediately available. drugs) or § 300.521(substantial § 300.520(a)(2) is determined by the IEP Some commenters question where the likelihood of injury), may first be team. Section § 300.521(d) has been child would be while the hearing under removed by school personnel for not revised to recognize that the hearing § 300.521 is being held, noting that more than 10 consecutive school days, officer reviews the adequacy of the § 300.521(d) requires the hearing or until the removal otherwise interim alternative educational setting officer’s determination include deciding constitutes a change of placement under proposed by school personnel who have whether the interim alternative § 300.519, and during that 10 day or less consulted with the child’s special educational setting meets the standards removal, services, as necessary under education teacher. of § 300.522, and wondering when the § 300.121(d), would be provided as Comment: A number of commenters IEP team would meet. Some determined by school personnel, in suggested revisions to paragraph (b) to commenters asked that the regulations consultation with the child’s special provide certain limitations on the make clear that a child with a disability education teacher. This will ensure that services that must be provided in the can be removed from the child’s current the need of school personnel to be able interim alternative educational setting placement for up to 10 days before the to make these decisions swiftly is such as specifying that the setting must IEP team would have to make the honored, while emphasizing the be one that is immediately available to determination in § 300.522. learning needs of the child in that students removed, the services on the Some commenters stated that removal period. While the child is in child’s current IEP will continue to the requiring the IEP team to determine the that 10 school day or less setting, the extent feasible, or the child will setting when a hearing officer removes IEP team meetings and expedited due continue to participate in the general a child exceeds the statute. process hearings under §§ 300.522 and curriculum to the extent determined Other commenters thought that the 300.521, respectively, can be conducted appropriate by the IEP team. Others provisions of § 300.522 are in conflict so that the IEP team or hearing officer, urged that the regulations make clear with the authority of school personnel as the case may be, can determine the that the interim alternative educational to order removal under § 300.520. up to 45 day interim alternative setting should not have to be a setting Discussion: Under §§ 300.519 and educational setting. that can provide all the same level of 300.520(a)(1), school personnel have the When a hearing officer has courses or courses that are not a part of authority to remove a child with determined that a child is substantially the core curriculum of the district (i.e., disabilities for not more than 10 likely to injure self or others in his or would not have to provide honors level consecutive school days (to the same her current placement and is ordering a courses, electives, advanced subject extent as for nondisabled children) 45 day interim alternative educational courses that are not part of the core

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00218 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12623 curriculum of the district) or are toward achieving the goals set out in the agency provides services to the extent extracurricular activities and sports. child’s IEP, as determined by school necessary to enable the child to Others asked about classes such as personnel, in consultation with the adequately progress in the general chemistry, shop or physical education child’s special education teacher, if the curriculum and advance toward that have specialized equipment or removal is under § 300.520(a)(1) or by achieving the goals set out on the child’s facilities. Some commenters noted that the child’s IEP team, if the removal is IEP, as determined by school personnel it would not be reasonable and would under § 300.524. in consultation with the child’s special be prohibitively expensive and Under these rules, the extent to which education teacher if the removal is procedurally burdensome to require that instructional services need to be under § 300.520(a)(1) or by the child’s interim alternative education settings provided and the type of instruction to IEP team if the removal is under provide the same courses as offered in be provided would depend on the § 300.524. regular schools. They argued that length of the removal, the extent to Comment: Several commenters asked requiring that interim alternative which the child has been removed that the statutory language in paragraph educational settings include the same previously, and the child’s needs and (b)(2) requiring that the interim courses as in regular schools would educational goals. For example, a child alternative educational setting address discourage schools from taking with a learning disability who is placed the child’s behavior ‘‘so that it does not appropriate measures to deal with in a 45 day placement will likely need recur’’ be replaced with language weapons, drugs and children who are far more extensive services in order to requiring the LEA to develop a program dangerous to themselves or others. progress in the general curriculum and that attempts to prevent the Some commenters stated that they did advance appropriately toward meeting inappropriate behavior from recurring. not believe that the services required for the goals of the child’s IEP than would Other commenters asked that a note students whose behavior is not a a child who is removed for only a few be added to emphasize that the interim manifestation of their disability should days, and is performing at grade level. alternative educational setting be be as extensive as those required for Because the services that are necessary designed to ensure FAPE and to students whose behavior is determined for children with disabilities who have evaluate the behavior, the IEP services to be a manifestation of their disability. been removed for disciplinary reasons provided, and the previous placement Some commenters asked that the will vary depending on the individual and to develop an IEP that will reduce regulations specify that services in the facts of a particular case, no further the recurrence of the behavior. Some interim alternative educational setting specificity regarding those services is commenters asked that the reference to must be provided by qualified personnel appropriate. other behavior in this paragraph be in a placement that is appropriate for What constitutes the general rephrased to limit it to other current the student’s age and level of curriculum is determined by the SEA, relevant behavior. Others asked that the development. Others asked that the IEP LEA or school that the student attends, reference to days in a given school year written for the interim alternative as appropriate under State law. In some be removed. educational setting should address the cases, honors level classes or electives Discussion: In order to provide services and modifications that will are a part of the general curriculum, and additional clarity on this point, a change enable the child to meet the child’s in others they may not be. With regard should be made to specify that those current IEP goals in the alternative to classes such as chemistry or auto services and modifications are designed setting. mechanics that generally are taught to prevent the inappropriate behavior Discussion: The statute describes the using a hands-on component or from recurring. In light of the changes services that must be provided to a child specialized equipment or facilities, and previously discussed that limit the who has been placed in an interim that are considered to be a part of the application of this section to removals alternative educational setting, which general curriculum, there are a variety under §§ 300.520(a)(2) and 300.521, the must be applied to removals under of available instructional techniques reference to other behavior would be §§ 300.520(a)(2) and 300.521, and these and program modules that could be removed, as these are now addressed in standards, with a minor modification used that would enable a child to § 300.121(d). discussed later in this section, are continue to progress in the general Change: Paragraph (b)(2) has been reflected in § 300.522(b). The proposed curriculum, although the child is not revised to clarify that it applies to regulation, at § 300.121(c), had receiving instruction in the child’s removals under §§ 300.520(a)(2) and indicated that the same standards normal school or facility. However, in 300.521 and to specify that the services should be applied to other types of order to assist in clarifying that a school and modifications to address the removals as well, that is, removals that or district does not have to replicate behavior are designed to prevent the did not constitute a change in every aspect of the services that a child behavior from recurring. placement and long-term suspensions or would receive if in his or her normal Comment: A number of commenters expulsions under § 300.524 for behavior classroom, a change would be made to requested that the regulations specify that is determined not to be a refer to enabling the child to continue that home instruction could not be used manifestation of a child’s disability. to ‘‘progress in’’ the general curriculum, as an interim alternative educational However, as suggested by the comments rather than ‘‘participate in’’ the general setting. Others asked that the received, there are reasons why what curriculum. regulations clarify that an interim would be required for these other types Changes: Paragraph (b) has been alternative educational placement may of removals may be different than for 45 revised to apply to removals under be any placement option, including, but day interim alternative educational §§ 300.520(a)(2) and 300.521. Paragraph not limited to home instruction. Others settings. Therefore, the regulation at (b)(1) has been revised to refer to asked for clarification of when home § 300.121(d) would provide that for enabling the child to continue to instruction would be an appropriate removals under §§ 300.520(a)(1) and ‘‘progress in’’ the general curriculum. placement for a child who is subject to 300.524, the public agency provides Language has been added to disciplinary action. Some commenters services to the extent necessary to § 300.121(d) to provide that for a child asked that the regulations specify that enable the child to adequately progress who has been removed under home instruction and independent in the general curriculum and advance § 300.520(a)(1) or § 300.524, the public study would not generally be an interim

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00219 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12624 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations alternative educational setting. Others number of the commenters asked that those suspensions. Public agencies are asked that home instruction be the reference to ‘‘in a given school year’’ strongly encouraged to grant any prohibited as an interim alternative be struck so that the provision would reasonable requests for IEP meetings. educational setting unless the parents permit no manifestation determination Functional behavioral assessments and agree. Some commenters asked for review whenever the removal did not behavioral intervention plans are to be guidance on what could be considered amount to a change of placement. On completed in a timely manner whether an appropriate interim alternative the other hand, other commenters required under § 300.520(b) or educational setting for rural or remote thought there was no basis in the statute otherwise determined appropriate by areas where there is only one school and for any exception, and that a the child’s IEP team (see no other appropriate public facility. manifestation review would need to be § 300.346(a)(2)(i)). In addition, if a child Discussion: Whether home instruction conducted whenever discipline was is subsequently suspended for short would be an appropriate alternative contemplated for a child with a periods of time, a parent or other educational setting under § 300.522 disability. Some commenters asked that individual could question whether a would depend on the particular the exception be expanded to include change of placement, which would circumstances of an individual case situations when the child’s IEP includes require a manifestation determination, such as the length of the removal, the the use of short term suspensions as an has occurred because of an alleged extent to which the child previously has appropriate intervention, or where the pattern of removals. been removed from their regular IEP team has otherwise addressed in the For clarity, a change should be made placement, and include consideration of IEP the behavior that led to the removal. to refer to the procedural safeguards the child’s needs and educational goals. Some commenters stated that paragraph notice under § 300.504. Paragraph (a)(1) (The proposed note following § 300.551 (a)(1) should refer to procedural of this section does not require prior regarding home instruction would be safeguards under § 300.504 rather than written notice. It does require notice to deleted.) In general, though, because procedural safeguards under this parents no later than the date on which removals under §§ 300.520(a)(2) and section. Other commenters noted that the decision to take the action is made. 300.521 will be for periods of time up advance notification of disciplinary To that extent, it constitutes a limited to 45 days, care must be taken to ensure action is unrealistic and that the exception to the requirement to provide that if homebound instruction is regulations should note that fact. Others prior written notice in § 300.503. Other provided for removals under § 300.522, asked that the regulations specify that removals that do not constitute a change the services that are provided will prior written notice was not required. of placement do not require prior satisfy the requirements for a removal Discussion: A manifestation written notice. under § 300.522(b). determination is important when a child Change: Paragraph (a) of this section Change: None. has been removed and that removal has been revised to specify that the Comment: Some commenters asked constitutes a change of placement under manifestation determination review is that a provision be added to § 300.522 § 300.519. If a removal is a change of done regarding behavior described in to specify that a hearing officer placement under § 300.519, a §§ 300.520(a)(2) and 300.521 or any considering an interim alternative manifestation determination will removal that constitutes a change of educational setting may modify the provide the IEP team useful information placement under § 300.519. Paragraph setting determined by the IEP team to in developing a behavioral assessment (a)(1) of this section has been amended meet the requirements of paragraph (b) plan or in reviewing an existing to require that parents be provided of this section. behavioral intervention plan under notice of procedural safeguards Discussion: Hearing officers have the § 300.520(b). It will also inform consistent with § 300.504. Paragraph (b) ability to modify the interim alternative determinations of whether or not a has been removed. educational setting that has been public agency may implement a Comment: A number of commenters proposed to them as necessary to meet disciplinary action that constitutes a requested clarification of the term the standards of enabling the child to change of placement for a child, other ‘‘other qualified personnel’’ as used in continue to participate in the general than those provided for in proposed paragraph (c) of this section. curriculum, continue to receive those §§ 300.520(a)(2) and 300.521. Requiring Some of these commenters asked that services and modifications that will a manifestation determination for the regulations include language like enable the child to meet the goals on the removals for less than 10 consecutive that in the note following § 300.344 that child’s current IEP and include services school days that are not a change of in the case of a child whose behavior and modifications designed to address placement under § 300.519, would be of impedes the learning of the child and the behavior so that it does not recur. As limited utility and would impose others, the IEP team should include previously explained, these final unnecessary burdens on public agencies someone knowledgeable about positive regulations do not require an IEP team as the determination often would be behavioral strategies and supports. to propose an interim alternative made after the period of removal was Others asked that the term not be educational setting to a hearing officer over. Furthermore, limiting interpreted as including only school under § 300.521, although school manifestation determination to removals personnel but should include persons districts are encouraged to use the that constitute a change of placement familiar with the child and the child’s child’s IEP team to make decisions under § 300.519 is consistent with the disabilities, such as the child’s treating about the interim alternative statutory language of section physician. Others wanted the educational setting that is proposed to 615(k)(4)(A). regulations to specify that the team the hearing officer. However, if a child is being include persons who are fully trained Change: None. suspended for subsequent short periods and qualified to understand the child’s of time, parents can request an IEP disability. Many asked that term also be Manifestation Determination Review meeting to consider whether the child is added to references to the IEP team in (§ 300.523) receiving appropriate services, proposed paragraphs (d), (e) and (f) of Comment: A number of commenters especially if they believe that there is a this section. Some commenters asked expressed concern about paragraph (b) relationship between the child’s that proposed paragraph (c) clarify that of this section. On the one hand, a disability and the behavior resulting in the manifestation determination needs

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00220 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12625 to be made at an IEP meeting, as some could include consideration of a the authority granted in §§ 300.520 and districts are not holding IEP team previously unidentified disability of the 300.521 to change the placement of a meetings for this purpose. child and of the antecedent to the child with a disability to an interim Discussion: The language regarding behavior that is subject to discipline. If alternative educational setting for the the IEP team and other qualified it is later determined that the child did same amount of time that a child personnel is taken directly from the not commit the act that is subject to without a disability would be subject to statute. The term ‘‘other qualified discipline, the question of record discipline, but for not more than 45 personnel’’ may include individuals expungement would be handled the days. Other commenters asked that the who are knowledgeable about how a same way such matters are addressed regulations make clear that if behavior child’s disability can impact on for nondisabled children. is a manifestation of the child’s behavior or on understanding the The interpretation in paragraph (d) on disability, disciplinary action cannot be impact and consequences of behavior, how the manifestation determination is taken against the child. and persons knowledgeable about the made, using the standards described in Discussion: For clarity, the regulation child and his or her disabilities. For the paragraph (c), is based on the should specify that if the behavior is sake of clarity, references to the IEP explanation of the decision process in determined to be a manifestation of the team in paragraphs (c) and (d) of this the congressional committee reports on child’s disability, the public agency section should be expanded to include Pub. L. 105–17. Those reports state that must take immediate steps to remedy ‘‘and other qualified personnel.’’ In the determination described in any deficiencies found in the child’s IEP order to clarify that the manifestation § 300.523(d): or placement or their implementation. It determination review is done in a would be inconsistent with the public meeting, a change should be made to .. . recognizes that where there is a agency’s obligation to ensure the relationship between a child’s behavior and paragraph (b). This review involves a failure to provide or implement an IEP or provision of FAPE to children with complex decision making that will be placement, the IEP team must conclude that disabilities to fail to take appropriate significantly different from the very the behavior was a manifestation of the action to correct identified deficiencies limited review that is done under child’s disability. Similarly, where the IEP in a child’s IEP or placement or the § 300.520(b)(2) if no modifications are team determines that an appropriate implementation of either. needed to a child’s behavioral placement and IEP were provided, the IEP The 45-day placements in intervention plan. team must then determine that the remaining §§ 300.520(a)(2), 300.521 and 300.526(c) Change: Redesignated paragraph (b) two standards have been satisfied. This are exceptions to the general rule that has been revised to specify that the section is not intended to require an IEP team children with disabilities may not be manifestation determination review is to find that a child’s behavior was a disciplined through a change of conducted at a meeting. Redesignated manifestation of a child’s disability based on placement for behavior that is a a technical violation of the IEP or placement paragraphs (c) and (d) have been requirements that are unrelated to the manifestation of their disability. If a amended by adding ‘‘and other qualified educational/behavior needs of the child. (S. child has been placed in a 45-day personnel’’ after ‘‘IEP team’’ each time Rep. No. 105–17, p. 31; H. Rep. No. 109–95, placement under one of these sections it is used. pp. 110–111 (1997)) and his or her behavior is determined to Comment: Several commenters were be a manifestation of the disability In light of the general decision to concerned that proposed paragraph under § 300.523, it may be possible to remove all notes from these final (d)(2)(ii) and (iii) put schools at a return the child to the current regulations, however, Note 1 should be significant disadvantage by having to educational placement before the removed. prove the negative—that disability did expiration of the up to 45-day period by not impair the ability of the child to Change: Note 1 has been removed. correcting identified deficiencies in the understand the impact and Comment: Many commenters asked implementation of a child’s IEP or consequences of the behavior and that that the content of the first sentence of placement. However, public agencies disability did not impair the child’s Note 2 be integrated into the are not obliged to return the child to the ability to control behavior. Other regulations. The commenters were current placement before the expiration commenters asked that the review divided, however, over the second of the 45-day period (and any process also include consideration of sentence of Note 2. Some supported the subsequent extensions under any unidentified disability of the child statement in the second sentence of the § 300.526(c)) if they do not choose to do and the antecedent to the behavior that note, others wanted the sentence to be so. is subject to discipline and permit revised to specify that children with Consistent with the general decision record expungement if it is later disabilities who have been placed in 45 to remove all notes from these final determined that the child did not day placements under §§ 300.520 and regulations, Note 2 would be removed. commit the act that is the subject of the 300.521 must be returned to their Change: A new paragraph has been manifestation determination. regular placement if their behavior is added to clarify that if deficiencies are Some commenters stated that determined to be a manifestation of identified in the child’s IEP or proposed paragraph (e) created too rigid their disability because of the principle placement or in their implementation, a standard and asked that it be modified that children with disabilities may not the public agency must act to correct to give districts more leeway if a be disciplined for behavior that is a those deficiencies. Note 2 has been mistake has been made. manifestation of their disability. removed. Discussion: The language in Still others wanted the sentence Comment: Some commenters asked paragraphs (c)(2)(ii) and (iii) is taken revised to indicate that changes to the that the regulations provide distinctions directly from the statute. Given that the child’s IEP or placement or the between the types of services that must review process includes consideration implementation of either ‘‘could’’ as be provided in interim alternative of all relevant information, including opposed to ‘‘often should’’ enable the educational settings when behavior is evaluation and diagnostic results, child to return to the regular placement. and is not a manifestation of the child’s information supplied by the parents, Other commenters asked that the second disability. For children whose behavior observations of the child and the child’s sentence to Note 2 be removed as they is not a manifestation of their disability, current IEP and placement, the review believed that it was inconsistent with these commenters asked that FAPE be

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00221 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12626 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations defined as the LEA’s ‘‘core curriculum’’ Implementation of the behavioral is not a manifestation of the child’s (the basic courses needed to fulfill high strategies identified in a child’s IEP, disability. school graduation requirements) unless including strategies designed to correct Discussion: No new notes will be the IEP team determined that some more behavior by imposing consequences, is added. All notes are being removed extensive services are required, so that appropriate under the IDEA and section from these final regulations. Whether a it would be clear that the LEA would 504, even if the behavior is a student who has been properly expelled not have to duplicate every possible manifestation of the child’s disability. must petition for readmission when the course offering at the alternative site. However, if a child’s IEP includes period of expulsion ends generally will The commenters asked that this rule behavioral strategies to address a depend on how the public agency deals also apply to the services provided to particular behavior of the child, the with children without disabilities who children who have properly been long- appropriate response to that behavior return to school after a period of term suspended or expelled for behavior almost always would be to use the expulsion. However, public agencies are that is determined not to be a behavioral strategies specified in the IEP reminded that for children with manifestation of disability. rather than to implement a disciplinary disabilities, they have an ongoing For children whose behavior is suspension. A change in placement that obligation to make a FAPE available, determined to be a manifestation of is appropriate and consistent with the whether the child is expelled or not. disability, these commenters asked for child’s needs may be implemented Under Section 504 of the Rehabilitation clarification that an IEP team can still subject to the parent’s procedural Act of 1973, children with disabilities take disciplinary action, if the IEP team safeguards regarding prior notice may not be disciplined for behavior that feels that providing consequences is (§ 300.503), mediation (§ 300.506), due is a manifestation of their disability if appropriate. In addition, they asked that process (§§ 300.507–300.513) and that disciplinary action constitutes a the regulations make clear that an IEP pendency (§ 300.514). change of placement. That principle is team can change a student’s placement Change: None. consistent with the changes made in for behavior that is a manifestation of Comment: Several commenters noted this section. the disability, if taking such action that a manifestation review should not Change: None. be required prior to determining would be appropriate and consistent Determination That Behavior Was Not punishment for incarcerated students with the student’s needs. Manifestation of Disability (§ 300.524) Discussion: A manifestation because prison disciplinary infractions determination is necessary to determine raise bona fide security and compelling Comment: Some commenters asked whether the placement for a child with penological interests that are outside the that the regulations make clear that if a disability can be changed over the purview of the education staff. the behavior was not related to the objections of the child’s parents through However, commenters noted that a child’s disability the discipline could a long-term suspension (other than the manifestation review for these students include long-term suspensions and 45-day placement addressed in may be useful in developing appropriate expulsions. Others asked that the §§ 300.520, 300.521 and 300.526(c)) or behavior interventions. regulations clarify whether discipline an expulsion. However, there is no basis Discussion: Section 614(d)(6)(B) of the would be limited to the 45-day interim in the statute for differentiating the Act provides that for children with alternative educational placement or services that must be provided to disabilities who are convicted as adults would be the same disciplinary children with disabilities because their under State law and incarcerated in an measures as for nondisabled students as behavior is or is not a manifestation of adult prison, the child’s IEP team may long as FAPE is provided and IEP their disability. (See discussion of modify the child’s IEP or placement if services continued in another setting. comments for §§ 300.121 and 300.522 the State has demonstrated a bona fide Others thought that the regulation for further discussion about services security or compelling penological should specify that no suspension or during periods of disciplinary removal). interest that cannot otherwise be expulsion could be for more than 45 Under section 504 of the accommodated. (See also days. Some commenters asked for Rehabilitation Act of 1973, if the § 300.311(c)(1)). A manifestation clarification of what would constitute behavior is a manifestation of a child’s determination would still be required an acceptable alternative setting for disability, the child cannot be removed for these individuals, in the instances children whose behavior is determined from his or her current educational specified in paragraph (a) of this to not be a manifestation of their placement if that removal constitutes a section. disability. change of placement (other than a 45 Change: None. Several commenters requested that day placement under §§ 300.520(a)(2), Comment: Several additional notes the regulations delete the provisions of 300.521, and 300.526(c)), unless the were proposed. Several commenters paragraph (c) of this section concerning public agency and the parents otherwise asked that a note be added to clarify that placement pending a parent appeal of a agree to a change of placement. If the when a student with disabilities has manifestation determination and the behavior is related to the child’s been properly expelled, the student note following, which addresses disability, proper development of the does not have to petition for paragraph (c). Others stated that the child’s IEP should include development readmission when the period of regulations should specify that if of strategies, including positive expulsion ends as the school system parents challenge a manifestation behavioral interventions, strategies and must accept and serve the student in its determination, the child should remain supports to address that behavior, schools. Others asked for a note in the alternative educational setting consistent with §§ 300.346(a)(2)(i) and specifying that under section 504 of the until the resolution of that challenge. (c). If the behavior is determined to be Rehabilitation Act children with Still others asked that the note mention a manifestation of a child’s disability disabilities may not be disciplined for that under § 300.514, placement could but has not previously been addressed behavior that is a manifestation of their change if the parent and agency agreed in the child’s IEP, then the IEP team disability, and that prior to taking any to that other placement. must meet to review and revise the punitive action against a child with a Discussion: Under this section, if a child’s IEP so that the child will receive disability, appropriate personnel must determination is made consistent with services appropriate to his or her needs. determine that the behavior in question § 300.523 that a child’s behavior is not

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00222 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12627 a manifestation of his or her disability, procedure and encourage parents to The provisions of paragraph (b) of this the child may be subject to the same seek mediation before an expedited section are statutory. Section disciplinary measures applicable to hearing. Some asked that the regulations 615(k)(6)(B)(ii) does not refer solely to nondisabled children, including long- make clear that a parent’s request for an the ‘‘substantial evidence’’ test in term suspensions and expulsions, expedited hearing would not apply to section 615(k)(2)(A), but to all the except that FAPE must be provided removals for less than 10 days and ‘‘standards’’ in section consistent with section 612(a)(1) of the would not negate the discretion of 615(k)(2)(§ 300.521 of these regulations). Act. In these instances, the disciplinary school districts to use alternative Changes: Paragraph (a)(1) has been removal from a regular placement could judicial remedies, such as temporary changed to refer to any decision be as long as the disciplinary exclusion restraining orders. Some commenters regarding placement under §§ 300.520– applied to a nondisabled child, and noted that paragraph (a)(1) of this 300.528. need not be limited to a 45-day interim section should be revised to apply only Placement During Appeals (§ 300.526) alternative educational placement, to placements made pursuant to the except that appropriate services must be discipline provisions of the Act, and not Comment: Several commenters provided to the child. To make the point other placement issues under the Act. requested that paragraph (a) of this section be amended by specifying that a more clearly that if the behavior is Several commenters asked that parent’s appeal of a hearing officer determined not to be a manifestation of proposed paragraph (b)(2) of this section decision must be heard by another the child’s disability, that child may be be revised to make clear that the hearing officer. Some commenters subjected to long-term suspension and standard of § 300.521 that is to be thought that LEAs should not be expulsion with appropriate services. To applied to 45-day placements under required to seek expedited hearings for clarify what would constitute an § 300.520(a)(2) is the ‘‘substantial students that remain a danger after 45 acceptable alternative setting for a child evidence’’ standard and does not days and sought a simplified procedure if the child’s behavior is determined to include the ‘‘substantially likely to not be a manifestation of his or her for extensions of the 45-day placement. result in injury’’ test or other program Others thought that the possibility of disability, the reference in paragraph (a) factors in § 300.521, so as not to damage of this section has been changed to refer an extension of an interim alternative the new ability of school districts to educational placement because a child to § 300.121(c), which implements that move students for up to 45 days for statutory provision. remains dangerous should be limited to certain offenses related to weapons and a one-time extension that would require Section 615(j) of the Act provides that drugs. the only exceptions to the ‘‘pendency’’ the hearing officer to determine that Discussion: The statute does not rule (§ 300.514) are those specified in there were no programmatic changes, specify that parents request a hearing in section 615(k)(7) of the Act, concerning related services or supplemental aids or writing under the appeal procedures in placement during parent appeals of 45- services that could be used to mitigate this section. The statute provides for day interim alternative educational the dangerousness of the original expedited hearings in three placements, which is implemented by placement. These commenters thought § 300.526. Paragraph (c) of this section circumstances, and those are reflected that any further efforts to keep the merely reflects that statutory in §§ 300.521, 300.525, and 300.526. student in an alternative placement arrangement. Section 300.526 governs a Mediation is always encouraged as an should be heard by a court. Some child’s placement if a parent challenges alternative to a due process hearing, and commenters asked that the note be a manifestation determination while a § 300.506(a) makes clear that mediation deleted or modified by requiring, for child is in a 45-day interim alternative must be available whenever a hearing is example, that for an extension the educational placement under requested under the provisions of hearing officer consider whether the §§ 300.520(a)(2) or 300.521. Section §§ 300.520–300.528. Under the statute, school district has created delays or 300.514 makes clear that placement may it seems clear that a parent’s right to an otherwise not acted in good faith. A few change if the agency and parent agree on expedited hearing is limited to commenters asked that any time an an alternative placement while a due placements pursuant to the discipline agency sought to extend an interim process hearing is pending on other provisions of the Act and not to other alternative education placement because issues. placement issues, such as disputes of continued dangerousness, the agency Changes: The reference to section about the adequacy of a child’s current first conduct a formal evaluation of the 612(a)(1) of the Act in paragraph (a) is placement (unless raised in the context child. replaced with a reference to of a manifestation issue). Discussion: It is not necessary to § 300.121(c), paragraph (c) is revised to In addition, since the statute refers to change the regulation to specify that a refer to the placement rules of § 300.526, decisions regarding placement, rather parent’s appeal of a hearing officer’s and the note is removed. than to disciplinary actions, a parent’s decision must be heard by another right to an expedited hearing is limited hearing officer, as it would violate the Parent Appeal (§ 300.525) to disciplinary situations involving a basic impartiality requirement of Comment: Some commenters asked change of placement, which would § 300.508(a)(2) to permit a hearing that the regulations specify that parents occur if a child were removed from the officer to hear the appeal of his or her must request a hearing in writing under child’s current placement for more than prior decision. Under paragraph (b) of this section. Other commenters asked 10 school days at a time or if there were this section, unless shortened as the that the regulations make clear that any a series of removals from the child’s result of a hearing officer’s decision hearing requested under this authority current educational placement in a consistent with paragraph (a) of this must be expedited, rather than school year as described in § 300.519. A section, a child would remain in the suggesting that only those hearings parent’s request for an expedited due interim alternative educational setting when the parent requests an expedited process hearing does not prevent a pursuant to §§ 300.520(a)(2) or 300.521 hearing. school district from seeking judicial for the period of the exclusion (which Some commenters wanted the relief, through measures such as a may be up to 45 days). regulations to reflect that mediation was temporary restraining order, when If the public agency proposes to an alternative to the expedited hearing necessary. change the child’s placement at the end

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00223 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12628 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations of that interim alternative educational English be rephrased as being unable to sufficient to determine that there was no placement and the child’s parents write. reason to evaluate the child. request a due process hearing on that Some commenters asked that Discussion: In light of these proposed change of placement, the child paragraph (b)(2) clarify the type, comments, some changes would be returns to the child’s placement prior to severity, or degree of behavior or made to paragraph (b) of this section. the interim alternative educational performance that would demonstrate With respect to paragraph (b)(1) of this setting at the end of that interim the need for services under the Act. For section, it is important to keep in mind placement, except as provided in example, some asked that the behavior that child find is an important activity paragraph (c) of this section. The or performance of the child would have of school districts under the Act and all expedited hearing procedure set forth in to include characteristics consistent of the staff of a school district should be paragraph (c) of this section is drawn with a category of disability under at least aware enough of this important from the statute, which contemplates § 300.7 of the regulations. Others asked school function that, whatever their role the same standards for these expedited that this provision be revised to require in the school, if they receive a written hearings as for those under § 300.521. observation and documentation of the expression of concern from a parent that There is no statutory limit on the child’s performance or behavior a child is in need of special education number of times this procedure may be demonstrating the need for special and related services, a referral to invoked in any individual case, and education services by personnel who appropriate school child find personnel none is added to the regulation. If, after regularly work with the child. should be made. Parents should not be a 45-day extension of an interim Some commenters requested that held accountable for knowing who in a placement under paragraph (c) of this various sections of paragraph (b) be school is the proper person to contact if section, an LEA maintains that the child time-limited to actions within the past they are concerned that their child is still dangerous and the issue has not year. Others asked that all of paragraph might need special education. On the been resolved through due process, the (b) be limited to actions that have other hand, the statute makes clear that LEA may seek subsequent expedited occurred within the preceding two the parental expression of concern must due process hearings under paragraph school years. include enough information to indicate that their child is in need of special (c)(1) of this section. However, in light With respect to paragraph (b)(4) of education and related services. The of the decision to remove all notes from this section, many commenters asked statutory provision expects that parents the regulations, the note would be that the regulations make clear that provide their expressions of concern in removed. casual communications between agency writing if they are able to and does not Changes: A new paragraph (c)(4) has personnel would not meet this standard. mention a particular language. Rather been added to make clear that the Some thought that the agency personnel than refer to illiteracy; which may have covered by this provision should be procedure in paragraph (c) may be a variety of interpretations, the repeated, if necessary. The note has limited to those providing regular or regulations should refer to the parent been removed. special education to the child reporting not knowing how to write. concern to agency personnel who are Protection for Children not yet Eligible In paragraph (b)(2) of this section, the normally responsible for initiating the for Special Education and Related behavior or performance of the child special education evaluation process. Services (§ 300.527) sufficient to meet this standard should Others asked that expressions of be tied to characteristics associated with Comment: A number of commenters concern by appropriate agency one of the disability categories expressed concern that the statutory personnel be a written expression of the identified in the definition of child with language that was reflected in paragraph child’s need for a special education a disability in order to remove (b) of this section was too broad and evaluation. Some noted that without the unnecessary uncertainty about the type, thought that reasonable restrictions addition of reasonable limitations, this severity, or degree of behavior or should be added so that the issue of provision would undermine responsible performance intended. Child find is an whether a ‘‘basis of knowledge’’ existed efforts, such as pre-referral strategies, to important function of schools and would not have to be litigated for almost limit identification of children for school districts. any child who was subjected to special education. School personnel should be held disciplinary action. Some commenters asked that responsible for referring children for With respect to paragraph (b)(1), some paragraph (b) make clear that an agency evaluation when their behavior or commenters requested that written would not be considered to have a performance indicates that they may parent concerns should be addressed to ‘‘basis of knowledge’’ merely because a have a disability covered under the Act. the director of special education, other child is receiving services under some Limiting paragraph (b)(2) to instances in special education personnel of the other program such as Title 1 of the which personnel who regularly work agency, or the child’s teacher rather Elementary and Secondary Education with the child have recorded their than to noninstructional personnel or Act, a State- or locally-developed observation of a child’s behavior or personnel not normally charged with compensatory education program, or performance that demonstrates a need child find responsibilities. Other consistent with Section 504 of the for special education would commenters asked that paragraph (b)(1) Rehabilitation Act of 1973. Others asked inappropriately omit those situations in make clear that the parental expression that the regulations specify that if an which public agency personnel should of concern must be more than a casual evaluation has been done and a child have acted, but failed to do so. observation or vague statement and found ineligible for special education, Requested changes regarding time must describe behavior indicative of a that evaluation and determination limitations on the standards in disability or reflect the need for a would not constitute a ‘‘basis of paragraph (b) are not adopted. However, special education evaluation. Other knowledge’’ under paragraph (b). Others if as a result of one of the forms of notice commenters asked for specificity about asked that agencies be able to identified in this paragraph, a public how the determination about parents’ demonstrate that they responsibly agency has either determined that the English literacy would be determined addressed an expression of concern and child was not eligible after conducting and asked that parental illiteracy in concluded that the available data were an evaluation or determined that an

VerDate 03-MAR-99 17:45 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00224 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm01 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12629 evaluation was not necessary, and has agency will not be considered to have a the regulations to make clear that a provided appropriate notice to parents basis of knowledge under paragraph (b) parent would have the right to an of that determination consistent with of this section merely because a child independent educational evaluation if § 300.503, the public agency would not receives services under some other the parent disagrees with the evaluation have a basis of knowledge under this program designed to provide results and to the standard appeal rights paragraph because of that notice. For compensatory or remedial services or and that a court could enjoin improper example, if as the result of a parent because a child is limited-English exclusion during the pendency of the request for an evaluation, a public proficient. If the child is eligible under evaluation and appeal process. agency conducted an evaluation, section 504 and not the IDEA, discipline Discussion: Redesignated paragraph determined that the child was not a would have to be consistent with the (d) of this section does not require the child with a disability, and provided requirements of section 504. provision of services to a child while an proper notice of that determination to Changes: A technical change has been expedited evaluation is being the parents, the agency would not have made to paragraph (a) to refer to conducted, if the public agency did not a basis of knowledge because of that paragraph (b) of this section rather than have a basis for knowledge that the parent request for an evaluation. ‘‘this paragraph.’’ The parenthetical child was a child with a disability. An If the parents disagreed with the language in paragraph (b)(1) has been educational placement under paragraph eligibility determination resulting from replaced with the following statement: (d)(2)(ii) in those situations can include that evaluation, they would have the ‘‘(or orally if the parent does not know a suspension or expulsion without right to request a due process hearing how to write or has a disability that services, if those measures are under § 300.507. If the parents requested prevents a written statement).’’ comparable to measures applied to a hearing, the protections of this part Language is added to paragraph (b)(2) to children without disabilities who would apply. If they did not request a clarify that the behavior or performance engage in comparable behavior. Of hearing and the child subsequently is in relation to the categories of course, States and school districts are engaged in behavior that violated any disability identified in § 300.7; and free to choose to provide services to rule or code of conduct of the public paragraph (b)(4) has been revised to children under this paragraph. agency, including behavior described in refer to other personnel who have There is no requirement that a §§ 300.520 or 300.521, and there was no responsibilities for child find or special disciplinary action be put on hold intervening event or action that would education referrals in the agency. pending the outcome of an expedited independently constitute a basis of Paragraph (c) has been redesignated as evaluation, or that the child’s parents be knowledge under paragraph (b), the paragraph (d) and a new paragraph (c) involved in placement decisions under public agency would not be deemed to has been added to provide that if an paragraph (d)(2)(ii). have knowledge (of a disability). In such agency acts on one of the bases No specific timeline for an expedited a case, consistent with paragraph (c), the identified in paragraph (b), determines evaluation is included in the parents could request an expedited that the child is not eligible, and regulations, as what may be required to evaluation, but the public agency could provides proper notice to the parents, conclude an evaluation will vary widely subject the child to the same and there are no additional bases of depending on the nature and extent of disciplinary measures applied to knowledge under paragraph (b) that a child’s suspected disability and the children without disabilities engaging in were not considered, the agency would amount of additional information that comparable behavior. An addition not be held to have a basis of knowledge would be necessary to make an would be made to this section. In order under § 300.527(b). eligibility determination. However, the to clarify that if an agency responsibly Comment: Some commenters thought statute and regulation specify that the addresses the behavior or performance that paragraph (c) of this section in the evaluation in these instances be of a child or an expression of concern NPRM implied that a regular education ‘‘expedited’’, which means that an about that behavior or performance the child is entitled to some placement evaluation should be conducted in a agency’s knowledge of that behavior, while eligibility is being determined, shorter period of time than a normal performance or expression of concern, and thought that whether these students evaluation. As § 300.533 makes clear, in does not preclude the agency from receive services while eligibility is being some cases, an evaluation may be subjecting the child to the same determined should be left to the States. conducted based on a review of existing disciplinary measures applied to Others asked that the regulations specify data. children without disabilities who that the phrase ‘‘educational placement’’ With regard to an expedited engage in comparable behaviors. in proposed paragraph (c)(2)(ii) includes evaluation, a parent’s right to an In order to provide clarity to the a suspension or expulsion without independent educational evaluation if content of paragraph (b)(4), a change has services, while others thought that any they disagree with the results of that been made to that provision. Public disciplinary action should be put on evaluation and to normal appeal rights agencies should not be held to have a hold until the evaluation was of that expedited evaluation are not basis for knowledge that a child was a completed. Others asked that parents be affected by this section. Courts have the child with a disability merely because involved in decisions about the child’s ability to enjoin improper exclusion of the child’s teacher had expressed educational placement under this children from educational services in concern about the child’s behavior or provision. appropriate circumstances. performance that was unrelated to Some commenters thought that more Changes: Language has been added to whether the child had a disability. This guidance should be provided about an paragraph (d)(2)(ii) to make clear that an provision would therefore be modified appropriate timeline for an expedited educational placement under that to refer to expressions of concern to evaluation. Others asked that an provision may include suspension or other agency personnel who have expedited evaluation when an agency expulsion without educational services. responsibilities for child find or special had conducted an evaluation within the education referrals in the agency. past year could be reviewing those Expedited due Process Hearings The changes described in this results and determining whether other (§ 300.528) discussion in regard to paragraph (b)(2) assessments would need to be Comment: Some commenters and (b)(4) would clarify that a public conducted. Other commenters wanted supported the time frames proposed for

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00225 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12630 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations expedited due process hearings in light requested by a public agency or parent. requirements of paragraph (a) of this of the need to get prompt resolution of This will allow States to develop a rule section, the State may alter other State- the various issues that are subject to that is fairly applied to both parents and imposed procedural rules from those it these hearings. A number of school districts and is best suited to uses for hearings under § 300.507. This commenters expressed concern about their particular needs and rule will ensure that the basic being able to meet the timelines circumstances. protections regarding hearings under the proposed in paragraph (a) and suggested The regulations refer to expedited due Act are met, while enabling States to that the expedited hearing timeline be process hearings rather than expedited adjust other procedural rules they may set at some longer time such as 10 hearings to make clear that the have superimposed on due process school days, 15 calendar days, 20 procedural protections in §§ 300.508 hearings in light of the expedited nature business days, or 20 school days, so that and 300.509 are to be met. With regard of these hearings. an orderly hearing could be conducted, to the hearings provided for in section No specific expedited appeal process the parties’ rights protected, and a well- 615(k)(2) of the Act (§ 300.521 of the is specified in the Act, and none is reasoned and legally sufficient decision regulations), the Committee reports added by these regulations. However, could be rendered. accompanying Pub. L. 105–17 refer to States should be able to choose to adopt Some commenters thought that this the hearings as ‘‘expedited due process an expedited appeal procedure if they section should refer to ‘‘expedited hearings.’’ (S. Rep. No. 105–17, p. 31, wish, including, in States that have a hearings’’ rather than ‘‘expedited due H.R. Rep. No. 105–95 p. 111 (1997)) In two-tier normal due process procedure, process hearings.’’ Others noted the addition, the evidentiary standard establishing a one-tier expedited hearing obligation of a hearing officer to specified in the statute for hearings procedure (i.e., expedited hearings schedule the hearing quickly so that a under §§ 300.521 and 300.526(c) conducted by the SEA) so that parties decision could be reached within the requires consideration of evidence resort directly to a State or Federal time frame. Some commenters asked presented by both sides to a dispute, court, rather than appeal through a that a provision be added to specify that which rules out hearings which do not State-level appeal procedure. Therefore, if a decision was not rendered within permit each side an equal opportunity a change should be made to the the time frame, the child would remain to present evidence. Permitting a regulation to clarify that an appeal of an in the alternative placement until the different standard to apply to expedited expedited due process hearing must be decision was issued, while others asked hearings on parent appeals under consistent with § 300.510. that the child be returned to the regular § 300.526(a) would be unfair to public Changes: A technical change has been placement if the decision were not agencies. If a decision is not reached made to paragraph (a)(2) to refer to issued within that time frame. within the time frame specified, the § 300.509 rather than § 300.508. Some commenters were concerned child’s placement would be determined Paragraph (a)(1) has been deleted and a that the provision proposed in based on the other rules provided in new paragraph (b) has been added to paragraph (b) not be read to reduce these regulations. For example, if a provide that each State establish a rights available to children and parents school district had requested a hearing timeline for expedited due process under the law, and asked that a for the purpose of demonstrating that a hearings that results in a written statement be added to the regulation to child was substantially likely to injure decision being mailed to the parties specify that in no instance should the themselves or others if the child within 45 days, with no extensions protections afforded the student and remained in the current placement, the permitted that result in decisions being parent under the Act be reduced. child could be removed from his or her issued more than 45 days after the Some commenters asked that current placement for not more than 10 hearing request; and to require that paragraph (c) provide an expedited school days pending the decision of the decisions be issued in the same period appeal process as well in light of the hearing officer, unless the child’s of time, whether the hearing is statutory emphasis on quick resolution parents and the public agency agreed requested by a parent or an agency. of disputes about disciplinary actions. otherwise. (§ 300.519). Paragraphs (a)(2) and (a)(3) have been Some commenters asked that the If the child were in a 45-day interim redesignated as paragraphs (a)(1) and regulations make clear that appeals of alternative educational setting and the (a)(2) and paragraphs (b) and (c) have disputes under §§ 300.520–300.528 are parents appealed that determination, the been redesignated as paragraphs (c) and to a State level review officer, if a State child would remain in that setting until (d). Redesignated paragraph (d) has been has a two-tier due process system, and the expiration of the 45 days or the revised to specify that expedited due not to another due process hearing hearing officer’s decision, whichever process hearings are appealable officer. occurs first. (§ 300.526(a)). If the child’s consistent with the § 300.510. A Discussion: Because of concerns that parents oppose a proposed change of modification has been made to in some States it will not be possible to placement at the end of a 45-day interim § 300.526(a) regarding these appeals. conduct an orderly hearing and develop alternative educational setting, under a well-reasoned, legally sufficient § 300.526(b), the child returns to the Referral to and Action by Law decision within a 10 business day child’s prior placement at the end of the Enforcement and Judicial Authorities timeline, the specific time limit would interim placement, unless through (§ 300.529) be removed and replaced with a another hearing and decision by the Comment: Several commenters asked requirement that States establish a hearing officer under § 300.526(c), the that paragraph (a) be modified to clarify timeline for expedited due process interim alternative educational setting is that reporting crimes to law hearings that meet certain standards—it extended for an additional period of enforcement authorities not circumvent must result in written decisions being time, not to exceed 45 days for each the school’s responsibilities under IDEA mailed to the parties in less than 45 expedited hearing requested under to appropriately evaluate and address days, with no extensions of time that § 300.526(c). children’s behavior problems that are result in a decision more that 45 days Paragraph (b) of this section is related to their disabilities in a timely from the date of the request for a designed to make clear that while a manner. Other commenters requested hearing, and it must be the same period State must insure that expedited due that procedural safeguards similar to of time, whether the hearing is process hearings must meet the those in §§ 300.520–300.528 be

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00226 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12631 incorporated into this section that those of the Family Educational Rights FERPA would permit disclosure of would apply whenever an agency makes and Privacy Act (FERPA) (20 U.S.C. the special education and disciplinary a report of a crime by a child with a 1232g), personally identifiable records mentioned in § 300.529(b) only disability, including conducting a information (such as a student’s status with the prior written consent of the manifestation determination on the as a special education student) can only parent or a student aged 18 or older, or relationship of the behavior to the be released with parental consent except where one of the exceptions to FERPA’s disability, applying the 10- and 45-day in certain very limited circumstances. consent requirements apply. (See also, timelines to any criminal or juvenile Changes: None. § 300.571). For example, disclosure of filing, notice to parents, and the right of Comment: A number of commenters special education and disciplinary parents to appeal decisions and request asked that paragraph (b) of this section records would be permitted when the due process. Some commenters stated include a reference to the requirements disclosure is made in compliance with that any referral to juvenile or law of FERPA and note that public agencies a lawfully issued subpoena or court enforcement authorities should trigger must insure the confidentiality of order if the school makes a reasonable notice to parents of the referral. records such as the special education attempt to notify the parent of the Several commenters requested that and disciplinary records referred to in student of the order or subpoena in the regulations specify that the Act also this section. Some asked that a advance of compliance. (34 CFR permits school officials to press charges provision be added making clear that a 99.31(a)(9)). This prior notice against a child with a disability when release to law enforcement authorities requirement allows the parent to seek they have reported a crime by that could only be made pursuant to the protective action from the court, such as student. requirements of FERPA. Others asked limiting the scope of the subpoena or One commenter asked that paragraph whether this provision constituted an quashing it. Prior notice is not required (a) be modified to require that a police exception to disclosure of education when the disclosure is in compliance report include a statement indicating records under FERPA, and if so, that the with certain Federal grand jury or other that the student is in a special education regulations make this clear. Some law enforcement subpoenas. In these program and identify a contact person commenters noted that disclosure of cases, the waiver of the advance who can provide additional information education records would be a significant notification requirement applies only to appropriate authorities on request. when the law enforcement subpoena or Discussion: Paragraph (a) of § 300.529 burden on schools and that it court order contains language that does not authorize school districts to contradicts existing confidentiality and specifies that the existence or the circumvent any of their responsibilities disclosure requirements. Some contents of, or the information under the Act. It merely clarifies that commenters were concerned that other furnished in response to, such subpoena school districts do have the authority to agencies would not maintain these or court order should not be disclosed. report crimes by children with records in a way that would protect the (34 CFR 99.31(a)(9)(ii)). Additionally, disabilities to appropriate authorities often very sensitive information that under FERPA, if the disclosure is in and that those State law enforcement they contain. and judicial authorities have the ability Discussion: Under sections 612(a)(8) connection with an emergency and to exercise their responsibilities and 617(c) of the Act, the Secretary is knowledge of the information is regarding the application of Federal and directed to take appropriate action, in necessary to protect the health or safety State law to crimes committed by accordance with FERPA to assure the of the student or other individuals (34 children with disabilities. The confidentiality of personally identifiable CFR 99.31(a)(10) and 99.36), disclosure procedural protections that apply to information contained in records may be made without parental consent. reports of a crime are established by collected or maintained by the Secretary In addition, schools may disclose criminal law, not the IDEA. Of course, and by SEAs and LEAs (see §§ 300.127, education records without consent if a it would be a violation of Section 504 and 300.560–300.577). The provisions disclosure is made pursuant to a State of the Rehabilitation Act of 1973 if a of section 615(k)(9)(B) of the Act as statute concerning the juvenile justice school were discriminating against reflected in paragraph (b) of this section system and the system’s ability to children with disabilities in how they must be interpreted in a manner that is effectively serve, prior to adjudication, were acting under this authority (e.g., if consistent with the requirements of the student whose records are released. they were only reporting crimes FERPA, and not as an exception to the The State statute must create an committed by children with disabilities requirements of that law. In other information sharing system, consisting and not committed by nondisabled words, the transmission of special only of State and local officials, that students). education and disciplinary records protects against the redisclosure of a The Act does not address whether under paragraph (b) of this section is juvenile’s education records. (34 CFR school officials may press charges permissible only to the extent that such 99.31(a)(5) and 99.38). For additional against a child with a disability when transmission is permitted under FERPA. information on the juvenile justice they have reported a crime by that If section 615(k)(9)(B) of the Act were system provision and other provisions student. Again, school districts should construed to require, or even permit, under FERPA, refer to the U.S. take care not to exercise their disclosures prohibited by FERPA, it Department of Education/U.S. responsibilities in a discriminatory arguably would violate the equal Department of Justice publication manner. protection rights of children with entitled Sharing Information: A Guide With regard to indicating that a disabilities to be protected against to the Family Educational Rights and student is a special education student certain involuntary disclosures to Privacy Act and Participation in and identifying a contact person who authorities of their confidential Juvenile Justice Programs. The can provide appropriate information to educational records to the same extent publication can be downloaded from the authorities to whom a crime is reported, as their nondisabled peers. To avoid this Family Policy Compliance Office’s web as explained more fully in the unconstitutional result, this statutory site: www.ed.gov.office/OM/fpco discussion on § 300.529(b), under the provision must be read consistent with In some instances, however, the Part confidentiality requirements of these the disclosures permitted under FERPA 300 regulations are more restrictive than regulations (see, e.g., § 300.571) and for the education records of all children. FERPA. For example, the Part 300

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00227 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12632 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations regulations in the past prohibited A few commenters asked that the evaluation in all areas of suspected disclosures without parent consent to agency reporting a crime be responsible disability. outside entities that FERPA would for ensuring that the child continues to Discussion: The child find provisions permit. (See proposed § 300.571(a) receive FAPE in accordance with the of § 300.125 require that a public agency limiting disclosures without consent to child’s IEP with consultation with law ensure that any child that it suspects officials of participating agencies enforcement, judicial authorities, or any has a disability is evaluated. Under both collecting or using the information other agency responsible for the prior law and these regulations, if a under IDEA and requiring consent education of incarcerated youth. parent requests an initial evaluation, the before information is used for any Discussion: As explained in the prior public agency must either: (1) provide purpose other than meeting IDEA discussion, FERPA limits the extent to the parents with written notice of the requirements.) Section 615(k)(9)(B) of which disclosure of special education agency’s proposal to conduct an initial the Act now eliminates, with regard to and disciplinary records would be evaluation if the agency suspects that children with disabilities who are permitted. The circumstances that the child has a disability and needs accused by schools of crimes, IDEA determine whether records may be special education and related services; restrictions on the sharing of transmitted generally will determine or (2) provide the parents with written information that is permissible under whether a specific request from a law notice of the agency’s refusal to conduct FERPA. enforcement official would need to be an initial evaluation if it does not Except in certain limited situations, made, to whom the records would be suspect that the child has a disability. information from special education and transmitted and the extent of the The parent may challenge such a disciplinary records may be disclosed information provided. In light of the proposal or refusal by requesting a due only on the condition that the party to fact-specific nature of the analysis process hearing. whom the information is disclosed will required, no specific definitions of If a group decision is made under not disclose the information to any terms used in paragraph (b) are § 300.533(a) that no additional data are other party without the prior consent of provided. The requirements of FERPA needed as part of an initial evaluation, the parent. (34 CFR 99.33). This and its implementing regulations at 34 the public agency is not required to procedure should be sufficient to ensure CFR Part 99 provide more specific conduct additional assessment as part of that those other parties maintain the guidance. The agency that is responsible the initial evaluation; however, the records in a manner that will protect the to ensure that a child receives FAPE parents may challenge that decision by confidentiality of that information. when the child has been accused of a initiating a due process hearing. Changes: Paragraph (b) of this section crime and is in the custody of law The child find provisions in section has been amended to make clear that enforcement and judicial authorities 612(a)(3) and in these regulations at copies of a child’s special education and will be determined by State law. § 300.125 require that all eligible disciplinary records may be transmitted Changes: None. children be identified, located and only to the extent that such evaluated, and it is not necessary to transmission is permitted under FERPA. Procedures for Evaluation and establish additional requirements Section 300.571 has been amended to Determination of Eligibility regarding specific circumstances that note the exception of this section. Initial Evaluation (§ 300.531) trigger an agency’s responsibility to Comment: Some commenters asked evaluate a child. that the regulations provide further Comment: A few commenters Any initial evaluation or reevaluation clarification about the disclosure of requested that this section be revised to of a child with a disability must meet information described in paragraph (b) clarify that parents may request an the requirements of § 300.532; therefore, by, for example, clarifying whether a initial evaluation, and some requested a child with a disability must, as part of request from a law enforcement official that public agencies be required to any initial evaluation or reevaluation, be is needed before a transfer, whether the conduct an initial evaluation upon assessed in all areas of suspected LEA would be permitted to determine parent request. A few commenters disability (§ 300.532(g)). However, as the most appropriate official to receive requested that the regulation be revised provided in § 300.533(a) and explained the records, and if all or part of the to require that, upon parent request, an above, the public agency may not need record is transmitted. Others asked that initial evaluation include new testing in to conduct assessment procedures to the regulations specify that the records all areas of suspected disability, even if obtain additional data in one or more be transferred within a short period of a determination is made, under areas of suspected disability depending time so that they would be available for § 300.533(a), that no additional data are on what data are already available consideration in decisions about the needed. A few commenters requested regarding the child. student’s case or that some limitations that the regulation be revised to specify Changes: None. be imposed on what is transferred, such the types of indicators, such as a Comment: A few commenters as records covering the past year, or psychiatric hospitalization, that trigger requested that the regulations be revised ‘‘relevant’’ records. the requirement that a child be to provide guidelines for State timelines Some commenters asked that the evaluated for possible disability. for completing initial evaluations. regulations impose some limitations on Other commenters requested that the Discussion: This issue is addressed in this responsibility by defining regulation be revised to clarify that the discussion regarding § 300.342. ‘‘appropriate authorities,’’ ‘‘special initial evaluations are distinct from Changes: None. education record,’’ and ‘‘disciplinary reevaluations, and to require that initial record.’’ Others asked that the evaluations be ‘‘comprehensive,’’ and Evaluation Procedures (§ 300.532) regulations require SEAs to develop include a complete full and individual Comment: Some commenters procedures regarding the disclosure of evaluation of the child in all areas of requested that the regulation be revised education records to the appropriate suspected disability. A few commenters to require that all tests and other authorities when LEAs report a requested that § 300.531 be linked with evaluation materials and procedures student’s criminal activity because § 300.532(g), to make clear that a ‘‘full that are used to assess a child, including States’ juvenile law and criminal law and individual initial evaluation’’ under nonstandardized tests, be validated for enforcement systems are different. § 300.531 means a comprehensive the specific purpose for which they are

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00228 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12633 used and administered by trained and array of unique circumstances in which and are unaffected by the IDEA knowledgeable personnel in accordance it may be necessary, for communication Amendments of 1997. with any instructions provided by the or other disability-specific reasons, to In evaluating each child with a producer of the tests. seek out an appropriate evaluator who disability, it is important for public Other commenters asked that the is not on the staff of the public agency. agencies to ensure that the evaluation is regulation be revised to require that A few commenters raised concerns sufficiently comprehensive to identify tests and other evaluation procedures be about valid assessment of Native all of the child’s special education and selected and administered so as not to American children who are either related services needs, including any be discriminatory on a disability basis, Navajo-dominant speakers or bilingual. needs the child has that are commonly and to prohibit use of tests if there is They expressed particular concern linked to a disability category other than controversy in the literature about a regarding the limitations of the disability in which the child has test’s validity for use with children with standardized written instruments in been classified. Further, public agencies a particular disability unless a local assessing children who speak Navajo, must ensure that the services provided validation study has been conducted for which is a predominantly oral language, to each child under this part are the particular disability that the child is and asked for guidance as to how designed to meet all of the child’s suspected to have. A few commenters Bureau of Indian Affairs schools will identified special education and related requested that the regulation specify meet the requirements in § 300.532 services needs, and not those resulting that evaluations that are conducted regarding standardized assessment only from the disability area in which verbally should use the language tools. the child has been initially classified. normally used by the child and not the A few commenters were concerned As proposed Note 1 indicated, under language used by the parents, if there is that the reference in Note 3 to Title VI of the Civil Rights Act of 1964: a difference between the two. administration of assessment (1) in order to properly evaluate a child A few commenters requested that the components by persons whose who may be limited English proficient, regulation be revised to require that qualifications do not meet standard a public agency should assess the public agencies collect information conditions would appear to ‘‘give child’s proficiency in English as well as regarding a child’s learning style(s) and permission’’ for the use of unqualified the child’s native language to needed methodologies as part of an assessment personnel, and requested distinguish language proficiency from evaluation, because such information is that this reference be deleted from the disability needs; and (2) an accurate critical in formulating appropriate note. Other commenters asked that Note assessment of the child’s language instructional methods to promote the 3 be deleted because it inappropriately proficiency should include objective child’s learning. A few commenters implies that IDEA permits public assessment of reading, writing, requested that the regulation be revised agencies to conduct assessments under speaking, and understanding. to require that three individuals from ‘‘substandard’’ conditions. Both Title VI and Part B require that different disciplines evaluate each Several commenters requested that a public agency ensure that children child. A few commenters requested that the substance of all of the notes in the with limited English proficiency are not the regulation be revised to clarify that NPRM be incorporated into the text of evaluated on the basis of criteria that tests and other materials used in the regulations, or that the notes be essentially measure English language evaluating each child must include a deleted in their entirety. skills. Sections 300.532 and 300.534(b) full range of diagnostic techniques, Discussion: The provisions of require that information about the including observations and interview. A § 300.532(c) regarding requirements for child’s language proficiency must be few commenters requested that standardized tests are consistent with considered in determining how to § 300.532(g) be revised to require a section 614(b)(3)(B), which limits conduct the evaluation of the child to comprehensive evaluation for all applicability of those requirements to prevent misclassification. In keeping students, regardless of their area of standardized tests. The selection of with the decision to eliminate all notes suspected disability, and a functional appropriate assessment instruments and from the final regulations, however, behavioral assessment for each child methodologies is appropriately left to Note 1 has been removed. The text of who exhibits behavior that impedes State and local discretion. § 300.532 has been revised to require learning. A public agency must ensure that: (1) that assessments of children with A few commenters requested that the the IEP team for each child with a limited English proficiency must be regulation be revised to require that disability has all of the evaluation selected and administered to ensure that initial evaluations and reevaluations information it needs to make required they measure the extent to which a address all of the special factors that IEP decisions regarding the educational child has a disability and needs special teams must consider under program of the child, including the education, and do not instead measure § 300.346(a)(2). A few commenters consideration of special factors required the child’s English language skills. asked that the regulation be revised to by § 300.346(a)(2); and (2) the team Proposed Note 2 explained that require that evaluations provide determining a child’s eligibility has all paragraphs (a)(1)(i) and (2)(ii) when read information to enable public agencies to of the information it needs to ensure together require that even in situations comply with the requirements of that the child is not determined to be a where it is clearly not feasible to § 300.534(b)(1), which requires that a child with a disability if the provide and administer tests in the child not be determined to be a child determinant factor is a lack of child’s native language or mode of with a disability if the determinant instruction in reading or math, as communication for a child with limited factor is a lack of instruction in reading required by § 300.534(b)(1). It is not, English proficiency, the public agency or math. therefore, necessary to establish an must still obtain and consider accurate A few commenters requested that additional requirement that evaluations and reliable information that will enable paragraphs (d), (e), and (f), and Notes 1, address the requirements of the agency to make an informed 2, and 3, be deleted because they exceed § 300.346(a)(2) or § 300.534(b)(1). decision as to whether the child has a the requirements in the statute. Paragraphs (d), (e), and (f) were all disability and the effects of the A few commenters were concerned among the provisions included in the disability on the child’s educational that Note 2 does not address the broad regulations as in effect on July 20, 1983, needs. In some situations, there may be

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00229 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12634 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations no one on the staff of a public agency test administration, must be included in A few commenters requested that who is able to administer a test or other the evaluation report. Notes 1, 2, and 3 parents be required to justify any evaluation in a child’s native language, have been removed. request for additional assessment data. as required under paragraph (a)(2) of A provision has been added to A few other commenters requested that this section, but an appropriate § 300.532 to require that the assessment public agencies be required to inform individual is available in the be sufficiently comprehensive to parents of their right to request surrounding area. In that case a public identify all of a child’s special additional assessments to determine agency could identify an individual in education and related services needs. A whether their child has a disability. the surrounding area who is able to change also has been made to § 300.300 A few commenters thought that is was administer a test or other evaluation in clarifying that services provided to each important to clarify that a public agency the child’s native language include child must be designed to meet all the may use data from prior assessments contacting neighboring school districts, child’s identified special education and conducted by individuals or agencies local universities, and professional related services needs. other than the public agency in organizations. This information will be Paragraph (b) has been revised determining what additional data were useful to school districts in meeting the consistent with section 614(b)(2) of the needed. requirements of the regulations, but Act, to clarify that information about Some commenters requested that the consistent with the general decision to enabling the child to be involved in and note be deleted. remove all notes, Note 2 would be progress in the general curriculum or for Discussion: Whether additional data removed. a preschool child to participate in are needed as part of an initial An assessment conducted under non appropriate activities may assist in evaluation or reevaluation must be standard conditions is not in and of determining both whether the child has determined on a case-by-case basis, itself a ‘‘substandard’’ assessment. As a disability and the content of the depending upon the needs of the child proposed Note 3 clarified, if an child’s IEP. and the information available regarding assessment is not conducted under the child, by a group that includes the Determination of Needed Evaluation individuals described in § 300.344 and standard conditions, information about Data (§ 300.533) the extent to which the assessment other qualified professionals, as varied from standard conditions, such Comment: A few commenters appropriate. as the qualifications of the person requested that the regulation or a note It is intended that the group review all administering the test or the method of clarify that it is expected that typically relevant existing evaluation data on a test administration, needs to be some new tests or assessments will be child, including that provided by the included in the evaluation report. A required as part of reevaluations. A parents and, where appropriate, data provision has been added to the number of commenters were concerned from evaluations conducted by other regulation to make this point. that, absent more specific requirements agencies. A public agency must ensure This information is needed so that the mandating the use of additional that the group fulfilling these functions team of qualified professionals can assessments, public agencies would rely include individuals beyond those evaluate the effects of these variances on on outdated assessment information described in § 300.344 if necessary to the validity and reliability of the regarding the needs of children with ensure that appropriate, informed information reported and to determine disabilities, especially since the needs decisions are made (see § 300.533). whether additional assessments are of children with disabilities may change Requiring public agencies to obtain needed. Again, while the proposed note significantly over time, and some informed written consent permitting provided clarifying information on the requested that the regulations be revised them not to collect, as part of a regulatory requirements, in keeping to define a maximum ‘‘age’’ for data that reevaluation, additional data to with the general decision to eliminate a public agency may rely upon as part determine whether a child continues to notes, Note 3 would be removed. of an evaluation. A few other be a child with a disability, would The provisions of the Act and commenters were concerned that the exceed the requirements of the statute, § 300.532, as revised to include a required IEP team participants often as would requiring States to report on provision regarding the use of would not have the appropriate the number of children for whom a nonstandard assessments, are sufficient qualifications and expertise to judge the reevaluation does not include collecting to ensure that the provisions of the validity of existing data and to additional data to determine whether regulation are appropriately determine what if any additional data they continue to be children with implemented for Navajo children, and are needed. disabilities. no further changes are needed. A few others requested that the The provisions of § 300.533(c) apply Changes: Section 300.532 has been regulation be revised to require that a only to the collection of additional data revised to require that assessments of public agency collect additional data to needed to determine whether a child children with limited English determine whether a child continues to continues to be a child with a disability. proficiency must be selected and be a child with a disability, unless the It would not be consistent with the administered to ensure that they agency obtains signed, informed parent statute and these regulations to require measure the extent to which a child has consent to not collect such additional that parents ‘‘justify’’ any request for a disability and needs special education, data, and that States be required to additional assessment data. Parents and do not, instead, measure the child’s report on the number of such parent must be included in the group that English language skills. ‘‘waivers.’’ Other commenters requested reviews existing data and determines A provision has been added to that the regulation or note clarify that what additional data are needed, and, as § 300.532 to require that if an the provisions of § 300.533(c) apply part of that group, they have the right assessment is not conducted under only to the portion of a reevaluation that to identify additional assessment data standard conditions, information about addresses whether a child continues to that they believe are needed and to the extent to which the assessment be a child with a disability, and not the participate in the decision regarding the varied from standard conditions, such portion that addresses the child’s needs need for those data. Both the statute and as the qualifications of the person for special education and related these regulations require that the administering the test or the method of services. determination regarding the need for

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00230 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12635 additional data be based, in part, on determine what, if any, additional data includes the individuals described in input from the parents. Under both the are needed as part of the evaluation. A § 300.344 and other qualified statute and these regulations, parents few commenters stated their opinion individuals. A new paragraph (b) has also have the right to request an that the Congress did not intend to been added to make clear that a meeting assessment, as part of a reevaluation, to establish a new requirement for an is not required to review existing determine whether their child continues additional meeting that public agencies evaluation data. to have a disability under IDEA. must convene. Others asked for clarity Determination of Eligibility (§ 300.534) However, this right is limited to as to whether a public agency could determinations of eligibility for services meet the requirements of § 300.533(a) by Comment: A few commenters under Part B. If the group reviewing the reviewing existing data and determining requested that the regulation provide existing data does not believe additional what additional data are needed as part further guidance regarding the standards data are needed to determine a child’s of the child’s IEP meeting during the and process public agencies must use to continued eligibility under IDEA, but second year of the three year evaluation ensure that lack of instruction in the parents want additional testing for cycle. A few commenters asked that the reading or math is not the determinant reasons other than continued eligibility regulation be revised to require that factor in determining that a child is a under IDEA, such as admission to parents are entitled to participate in any child with a disability. Other college, the denial of the parent’s meeting held to review existing data. commenters requested that the request would be subject to due process. A few other commenters requested regulation clarify that proposed An additional requirement that that the regulation be revised to provide § 300.534(b) does not mean that a child parents be informed of their right to that only those members of the IEP team who has a disability and requires request additional assessment data is needed to review current goals and special education and related services not needed, as it is already addressed by objectives must participate in the review because of that disability can be found paragraph (c)(1)(iii). of existing data, and that not all ineligible simply because the child also The proposed note clarified that the members involved in the initial has been denied instruction in reading requirement in § 300.533(a) and placement need be involved unless or math or because the child has limited § 300.534(a)(1) that review of evaluation there is to be a change in the placement English proficiency. data and eligibility decisions be made or identification of the child. Some commenters asked for by groups that include ‘‘qualified Discussion: Section 300.533(a) clarification as to whether, if the group professionals,’’ is intended to ensure requires that a group that includes the determines under § 300.533 that no that the group making these individuals described in § 300.344 further data are needed, a public agency determinations include individuals with (regarding the IEP team) and other may, without further evaluation, meet the knowledge and skills necessary to qualified professionals, as appropriate, its obligation under proposed interpret the evaluation data and make review the existing evaluation data and § 300.534(c) to evaluate a child with a an informed determination as to determine what additional data are disability before determining that the whether the child is a child with a needed. Although a public agency must child is no longer a child with a disability under § 300.7, and to ensure that the review of existing data disability. determine whether the child needs and the determination of any needed A few commenters requested that the special education and related services. additional data must be made by a regulation be revised to clarify the The composition of the group will group, including the parents, neither the meaning of ‘‘evaluation report.’’ A few vary depending upon the nature of the statute nor these regulations require that commenters requested that the child’s suspected disability and other the public agency conduct a meeting for regulation be revised to require that a relevant factors. For example, if a this purpose. A State may, however, public agency provide information to student is suspected of having a require such meetings. parents regarding the results of an learning disability, a professional whose Section 300.501(a)(2)(i) requires that evaluation prior to conducting an IEP sole expertise is visual impairments parents have an opportunity to meeting, and other commenters would be an inappropriate choice. If a participate in meetings with respect to requested that the regulations specify a student is limited English proficient, it the evaluation of their child with a timeline for how quickly the public will be important to include a person in disability. Therefore, if a public agency agency must provide parents with a the group of qualified professionals who conducts a meeting, as defined in copy of the evaluation report. is knowledgeable about the § 300.501(b)(2), to meet its A few commenters asked for identification, assessment, and responsibilities under § 300.533, the clarification as to whether a public education of limited English proficient parents must have an opportunity to agency must conduct an evaluation of a students. While the proposed note participate in the meeting. child with a disability before the agency provided clarifying information on the Neither the statute nor these may graduate the child. (This issue is regulatory requirements, in keeping regulations requires that all individuals addressed in the discussion regarding with the general decision to eliminate who were involved in the initial § 300.121.) notes, the note would be removed. placement of a child with a disability be Discussion: The specific standards Changes: The note has been removed. part of the group that, as part of a and process that public agencies use to Paragraph (d) has been revised to clarify reevaluation of the child reviews ensure that lack of instruction in that the parent’s right to request an existing data and determines what reading or math is not the determinant evaluation regarding continued additional data are needed. Both the factor in determining that a child is a eligibility concerns services under Part statute and the regulations require, child with a disability, and the content B. however, that a group that includes all of an evaluation report, are Comment: Some commenters of the individuals described in appropriately left by the statute to State requested that the regulation be revised § 300.344 for an IEP meeting, and other and local discretion. However, a public to provide further guidance as to qualified professionals, as appropriate, agency must ensure that a child who has whether public agencies are required to fulfill those functions. a disability, as defined in § 300.7 (i.e., convene a meeting to review existing Changes: Paragraph (a) has been a child who has been evaluated in evaluation data on a child and to revised to refer to the group that accordance with §§ 300.530–300.536 as

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00231 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12636 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations having one of the thirteen listed Procedures for Determining Eligibility general decision to eliminate notes, the impairments, and who because of that and Placement (§ 300.535) note would be removed. impairment needs special education and Changes: The note has been removed. Comment: Some commenters related services) is not excluded from requested that parents be added to the Reevaluation (§ 300.536) eligibility because that child also has variety of sources from which the public Comment: Some commenters asked limited English proficiency or has had agency will draw, under § 300.535(a)(1), a lack of instruction in reading or math. for clarification as to what constitutes a in interpreting evaluation data for the reevaluation. A few of these (See also § 300.532, which has been purpose of determining if a child is a commenters asked whether a revised to require that assessments of child with a disability. determination under § 300.533(a) that children with limited English Discussion: The proposed change is no additional data are needed as part of proficiency must be selected and consistent with section 614(b)(4)(A), a reevaluation constitutes a reevaluation administered to ensure that they which requires that the parent be part of and whether parent consent under measure the extent to which a child has the team that determines eligibility, and § 300.505(a)(iii) is required under such a disability and needs special education, other provisions of the Act that stress circumstances. and do not instead measure the child’s the importance of information provided A few commenters requested English language skills.) by the parents. clarification as to whether a public The specific content of an evaluation Changes: Section 300.535(a)(1) is agency must provide a reevaluation report is appropriately left by the statute revised to add ‘‘parent input’’ to the each time that a parent requests a to State and local discretion. Both the variety of sources from which the public reevaluation. A few commenters asked statute and the regulations require that, agency will, under § 300.535(a)(1), draw that a Note clarify that a public agency upon completing the administration of in interpreting evaluation data for the must conduct a reevaluation upon tests and other evaluation materials, a purpose of determining if a child is a parent request, whether or not the public agency must provide a copy of child with a disability. public agency agrees that a reevaluation is needed, while others requested the evaluation report and the Comment: A few commenters were clarification that a public agency may documentation of determination of concerned that the note inappropriately refuse a parent request for reevaluation eligibility to the parent, but neither implied that it is not necessary to use a and afford parents the opportunity for a establishes a timeline for providing team of professionals and more than one due process hearing to challenge the these documents to the parents; rather, assessment procedure to plan and refusal. A few other commenters asked this timeline is appropriately left to implement the evaluation for a child for clarification as to whether a public State and local discretion. It is, and to determine eligibility. A few other agency must conduct an evaluation however, important to ensure that commenters stated that the note whenever requested by the parent, parents and other IEP team participants inappropriately states that all sources regardless of the frequency of such have all the information they need to must be used for all children whose requests. participate meaningfully in IEP suspected disability is mental A few commenters asked that the meetings. Indeed, § 300.562(a) requires retardation. Other commenters regulation be revised to require that that a public agency comply with a requested that the note be revised to public agencies consider the need for a parent request to inspect and review state that for some children information reevaluation of a child with a disability existing educational records, including from additional sources, such as an at least once every three years, rather an evaluation report, without assessment of independent living skills, than require, as in the NPRM, that a unnecessary delay and before any might be needed. reevaluation be conducted at least once meeting regarding an IEP. Discussion: Section 300.532 requires every three years. A public agency must evaluate a child that a variety of assessment tools be Discussion: Under both prior law and with a disability before determining that used, that no single procedure be used the current regulations, if a parent the child is no longer a child with a as the sole criterion for determining the requests a reevaluation, the public disability, but such a reevaluation is, eligibility or needs of a child with a agency must either: (1) provide the like other reevaluations, subject to the disability, and that the child be assessed parents with written notice of the in all areas of suspected disability. requirements of § 300.533. Accordingly, agency’s proposal to conduct the Section 300.534 requires that a team of if a group decision is made under reevaluation; or (2) provide the parents professionals and the parent determine § 300.533(a) that no additional data are with written notice of the agency’s a child’s eligibility. needed to determine whether the child refusal to conduct a reevaluation. The continues to be a child with a disability, The proposed note did not in any way parent may challenge such a proposal or the public agency must provide parents diminish these requirements. It clarified refusal by requesting a due process with the notice required by that, consistent with the statute and hearing. If the agency conducts a these final regulations, the point of § 300.533(d)(1), and must provide such reevaluation and the evaluation group § 300.535(a)(1) is to ensure that more additional assessment(s) upon parent concludes that under § 300.533(a) no than one source is used in interpreting request consistent with § 300.533(d)(2). additional data are needed to determine evaluation data and in making these whether the child continues to be a Changes: Paragraph (b) is revised to determinations, and that although that child with a disability, the public clarify that children are not eligible if subsection includes a list of examples of agency must provide parents with the they need specialized instruction sources that may be used by a public notice required by § 300.533(c)(1), and because of limited English proficiency agency in determining whether a child must provide such assessment upon or lack of instruction in reading or math, is a child with a disability, as defined parent request. but do not need specialized instruction in § 300.7, the agency would not have to The statute specifically requires at because of a disability, as defined in use all the sources in every instance. section 614(a)(2) that ‘‘a reevaluation of § 300.7. See discussion of comments While the proposed note provided each child with a disability is received under § 300.122 regarding a clarifying information on the regulatory conducted ... at least once every three change to § 300.534(c). requirements, in keeping with the years.’’ However, in meeting this

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00232 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12637 requirement, a group will, pursuant to (b)(2) be revised to require consideration supports, strategies and interventions. If § 300.533, review existing data and of positive behavioral supports in the child can appropriately function in determine what, if any, additional educating children with disabilities in the regular classroom with appropriate assessment data are needed. Parent regular classes. behavioral supports, strategies or consent is not required for a review of A few commenters asked that a cross- interventions, placement in a more existing data; however, parent consent reference to the exceptions in restrictive environment would be would be required before additional § 300.311(b) and (c) be added for inconsistent with the least restrictive assessments are conducted. students with disabilities convicted as environment provisions of the IDEA. If Changes: None. adults and incarcerated in adult prisons. the child’s behavior in the regular Comment: A few commenters noted Several commenters asked that a note be classroom, even with the provision of that § 300.536(b) references § 300.530(b), added to specify that ESY services must appropriate behavioral supports, a nonexistent subsection. be provided in the LRE. Another asked strategies or interventions, would Discussion: The noted reference is a that a note explain that the reference to significantly impair the learning of typographical error. ‘‘special classes’’ in paragraph (b)(2) others, that placement would not meet Changes: Section 300.536(b) has been refers to special classes based on special his or her needs and would not be revised to refer to § 300.530 rather than education needs rather than special appropriate for that child. § 300.530(b). classes that the LEA makes available to The IDEA Amendments of 1997 place Additional Procedures for Evaluating all children, whether nondisabled or renewed emphasis on teaching children Children With Specific Learning disabled, such as remedial reading, art, with disabilities to the general Disability (§§ 300.540—300.543) or music classes. curriculum and ensuring that these Discussion: Placement in the LRE children are included in State- and Comment: Commenters raised a requires an individual decision, based variety of issues regarding the regulatory district-wide assessments of educational on each child’s IEP, and based on the achievement. Because, as commenters provisions concerning the additional strong presumption of the IDEA that procedures for evaluating children noted, one consequence of heightened children with disabilities be educated in accountability expectations may be suspected of having specific learning regular classes with appropriate aids unwarranted decisions to remove disabilities. However, none of those and supports, as reflected in paragraph children with disabilities from regular comments raised significant concerns (b) of this section. The regulations classrooms so as to avoid accountability about the minor changes from prior always have required that placement for their educational performance, the regulations proposed in the NPRM, decisions be based on the individual regulations should make clear that the which were designed merely to needs of each child with a disability and type or extent of the modifications that accommodate new statutory provisions prohibited categorical decision-making. regarding the participation of parents in In addition, the new statutory the child needs to the general evaluation determinations and provisions regarding IEPs, reflected in curriculum not be used to evaluation reports and documentation the regulations at § 300.347(a)(1) and (2) inappropriately justify the child’s of eligibility determinations applicable specify that IEPs must include a removal from education in regular, age- to all eligibility determinations, statement of how the child’s present appropriate classrooms. Therefore, a including those regarding specific levels of educational performance affect provision should be added to § 300.552 learning disabilities. the child’s involvement and progress in to provide that a child not be denied Discussion: As indicated in the the general curriculum and a statement education in age-appropriate regular preamble to the NPRM, the Department of measurable annual goals, including classrooms solely because the child’s is planning to conduct a careful, benchmarks or short-term objectives for education required modification to the comprehensive review of research, meeting the child’s disability-related general curriculum. Under this expert opinion and practical knowledge needs to enable the child to be involved provision, for example, a child with of evaluating and identifying children in and progress in the general significant cognitive disabilities could with a specific learning disability over curriculum. These provisions apply not be removed from education in age- the next several years to determine regardless of the setting in which the appropriate regular classrooms merely whether changes to the standards and services are provided. because of the modifications he or she process for identifying children with a Similarly, the IEP team, in developing needs to the general curriculum. This specific learning disability should be the IEP under § 300.346(a)(2)(i), is provision should not be read to require proposed. Because that review has not required to consider positive behavioral the placement of a child with a been done, no further changes are made intervention, strategies and supports to disability in a particular regular to the regulations. address the behavior of a child with a classroom or course if more than one Changes: None. disability whose behavior impedes his regular age-appropriate classroom or or her learning or that of others. These course is available in a particular grade General LRE Requirements (§ 300.550) provisions are designed to foster the or subject. Comment: A number of commenters increased participation of children with A cross-reference to the exceptions in asked that the regulation be revised to disabilities in regular education § 300.311(b) and (c), like that in make clear that a child with a disability environments or other less restrictive § 300.347(d), will make the regulations cannot be removed from the regular environments, not to serve as a basis for clearer and more complete. class environment based on the type or placing children with disabilities in As the discussion of § 300.309 degree of modifications to the general more restrictive settings. explains in more detail, while ESY curriculum that the child needs, or on The determination of appropriate services must be provided in the LRE, the types of related services that the placement for a child whose behavior is public agencies are not required to child needs. Some commenters asked interfering with the education of others create new programs as a means of that paragraph (b)(1) be revised to make requires careful consideration of providing ESY services to students with clear that whatever the setting selected, whether the child can appropriately disabilities in integrated settings if the the child is educated in the general function in the regular classroom if public agency does not provide summer curriculum. Others asked that paragraph provided appropriate behavioral services for its nondisabled children.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00233 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12638 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

While the commenters are correct that opportunities for direct communication Discussion: Home instruction is, for the reference to ‘‘special classes’’ in with peers and professional personnel school-aged children, the most paragraph (b)(2) refers to special classes in the child’s language and restrictive type of placement because it necessary to meet special education communication mode, academic level does not permit education to take place needs, and not classes that an LEA and full range of needs, including with other children. For that reason, makes available to all children, such as opportunities for direct instruction in home instruction should be relied on as remedial reading, or advanced the child’s language and communication the means of providing FAPE to a placement, art or music classes, mode in developing IEPs for children school-aged child with a disability only paragraph (b)(1) provides that the LRE who are deaf or hard of hearing. These in those limited circumstances when provisions of the regulations are focused requirements, which are included in the they cannot be educated with other on educating children with disabilities regulations at § 300.346(a)(2)(iv), should children even with the use of with nondisabled children to the address the concerns raised by the appropriate related services and maximum extent appropriate. In that commenters. In light of this change, supplementary aids and services, such context, the reference to ‘‘special further regulation is not necessary. as when a child is recovering from classes’’ is to classes organized on the Changes: None. surgery. The implication in the note that basis of disability and not classes that Comment: A number of commenters placement decisions could be based on are based on some other interest, need expressed concern about the note the type of disability of a child was or ability of the students. following this section regarding home unintended. Changes: A cross-reference to the instruction. Some stated that the note Instruction at home may be the most requirements of § 300.311(b) and (c) has should be struck because it implied that natural environment for a young child been added to paragraph (a). home instruction was an appropriate with a disability if the child’s IEP/IFSP A new paragraph has been added to placement for all medically fragile team so determines. ‘Home instruction’ § 300.552 prohibiting removal of a child children and that this was contrary to may be an appropriate modification of with a disability from an age- the requirement that placement be an IEP or placement under § 300.311 for appropriate regular classroom solely determined based on the individual incarcerated youth who are being kept because of needed modifications in the needs of each child. Some asked that the in close custody, or segregation or in a general curriculum. regulation limit home instruction to mental health unit. The issue of home those medically fragile children whose Continuum of Alternative Placements instruction for children with disabilities treating physicians have certified are (§ 300.551) who have been suspended or expelled not able to participate in a school setting for behavior that is not a manifestation Comment: A number of commenters with other children. of their disability is addressed under requested that the regulation include a Others disliked the note because they § 300.522. statement that a child does not need to believed that home instruction should Changes: The note has been deleted. fail in each of the less restrictive options be available in other instances when the on the continuum before they are placed IEP team determines that such a Placements (§ 300.552) in a more restrictive continuum placement is appropriate and should not Comment: A number of commenters placement that is appropriate to their be limited by type of disability. Some asked that paragraph (a)(1) be revised to needs. These commenters felt that this commenters wanted the note to be require that parents be informed about was needed to insure that children get revised to make clear that home the full range of placement options, appropriate services in a timely manner. instruction could be available for especially for children who are deaf or Some commenters requested that the children with behavior problems and hard of hearing. Often these commenters regulations specify that the placement those in interim alternative educational also asked that the regulations contain appropriate for children who are deaf placements because they had been a statement that the appropriate must be in a setting where the child’s suspended or expelled from school for placement of a child who is deaf or hard unique communication, linguistic, disciplinary reasons if the IEP team of hearing is the setting in which the social, academic, emotional, and determined that it was the appropriate child’s unique communication, cultural needs can be met, including placement. Others asked that the note linguistic, academic, social, emotional opportunities for interaction with should be revised to caution about the and cultural needs can be met. nondisabled peers. inappropriate use of home instruction as One commenter asked that the Discussion: The regulations do not a placement for children suspended and regulations include standards for require that a child has to fail in the less expelled, unless requested by the parent numerical improvements in the restrictive options on the continuum for medical, health protection, or percentages of children with disabilities before that child can be placed in a diagnostic evaluation purposes. Some who are educated in regular classes and setting that is appropriate to his or her commenters asked that the note make dates by which those standards are to be needs. Section 300.550(b)(2) of the clear that discipline issues should be met. regulations however, does require that handled through the provision of Discussion: The discussion the placement team consider whether appropriate services in placements other concerning § 300.551 notes that the IEP the child can be educated in less than home. provisions of the regulations already restrictive settings with the use of Some commenters asked that the note incorporate statutory language appropriate supplementary aids and be modified to state that home concerning the need to consider the services and make a more restrictive instruction services may be appropriate particular needs of children who are placement only when they conclude for young children if the IEP/IFSP team deaf or hard of hearing in developing that education in the less restrictive determines appropriate. Other appropriate IEPs. setting with appropriate supplementary commenters asked that the regulations Since placements are determined aids and services cannot be achieved make clear that home instruction based on the needs of individual satisfactorily. New statutory changes to services are an appropriate modification children, and because the IDEA the IEP development process make clear of the IEP or placement for incarcerated Amendments of 1997 provide that that the IEP team considers the language youth who are being kept in segregation, parents of children with disabilities are and communication needs, close custody or mental health units. members of any group that makes

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00234 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12639 decisions on the education placement of Comment: Some commenters felt that by other agencies, through private their child (section 614(f) of the Act) it paragraph (d) of the regulation required agencies serving preschool-aged would seem to be unnecessary and burdensome, unnecessary paperwork. children, and by locating preschool unreasonably burdensome to require Others requested its deletion because programs in elementary education LEAs to inform parents about the full they felt that too often a district is schools that serve all children. range of placement options. unwilling to prevent potential harmful One commenter asked that the Under § 300.501(c), parents must now effects and uses this provision to make reference to ‘private school programs for be included in the group making segregated placements that are then nondisabled children’ be struck as decisions about the educational presented as being ‘‘in the child’s best suggestive that private schools are not placement of their child. In view of the interest.’’ One commenter asked that bound to comply with the ADA. Some principle of regulating only if necessary, this paragraph be revised to emphasize commenters thought that the note the regulations are not changed in the how integration of children with implied that a full continuum is not ways suggested by these commenters. disabilities and nondisabled children needed for preschool children with With respect to paragraph (a)(1) of and successful learning are now disabilities and should be revised. this section, nothing in the regulations necessary conditions of one another. Another commenter stated that locating would prohibit a public agency from Discussion: Paragraph (d) of this classes of preschool children with allowing the group of persons that section does not impose paperwork disabilities in regular elementary makes the placement decision to also burdens. Paragraph (d) of this section schools is not an appropriate solution to serve as the child’s IEP team, so long as provides important protections for meeting the LRE for preschoolers and all individuals described in § 300.344 children with disabilities and helps should be struck from the note. are included. However, in the interest of ensure that they and their teachers have Discussion: Language has been added limiting the use of notes in these the supports to prevent any harmful to the regulation to clarify that the regulations, Note 1 would be removed. effect of a placement on the child or on requirements of § 300.552, as well as the Changes: Note 1 has been removed. the quality of services that he or she other requirements of §§ 300.550– See discussion of comments received needs. If the placement team determines 300.556, apply to all preschool children under § 300.550 regarding the addition that even with the provision of with disabilities who are entitled to of a new § 300.552(e) prohibiting supplementary aids and services, the receive FAPE. Note 2 to this section in removal of a child with a disability from child’s IEP could not be implemented the NPRM was intended to provide an age-appropriate regular classroom satisfactorily in the regular educational suggestions on how a public agency may solely because of needed modifications environment, that placement would not meet the LRE requirements if it does not in the general curriculum. be the LRE placement for that child at generally provide education to Comment: A number of commenters that time. nondisabled preschool children. asked for revisions to the regulation Generally, as the commenter suggests, However, in light of the general decision designed to foster the inclusion of achievement test performance of to remove all notes from these final children with disabilities in the schools students in inclusive classes is the regulations, the note would be removed. and classrooms they would attend if not equivalent or better than achievement Public agencies that do not operate disabled, such as explaining that test performance of others in segregated programs for nondisabled preschool children with disabilities could be setting and self-concept, social skills children are not required to initiate placed at another school only with and problem solving skills improve for those programs solely to satisfy the compelling educational justification and all students in inclusive settings. requirements regarding placement in the not for reasons of administrative Placement decisions, however, need to LRE. For those public agencies, the note convenience, or requiring that the child consider the individual needs of each provided some alternative methods for be educated at the school that they child. meeting the LRE requirements. The would attend if not disabled unless the Changes: None. examples in the note of placing child’s educational needs require some Comment: A number of commenters preschool children with disabilities in other placement. Others wanted the were concerned with placement private preschool programs and locating regulation to recognize the considerations for preschool-aged classes for preschool children with administrative right to make geographic children with disabilities. Some disabilities in regular elementary assignments so that not every facility in expressed support for the language in schools as a means of meeting the LRE a school district would need to be made Note 2 regarding preschool children requirements were not intended to limit accessible, as provided under the with disabilities. Others thought that the the placements options on the Section 504 and Americans with language of the note that indicated that continuum which may be used to meet Disabilities Act regulations. school districts that did not operate the LRE needs of preschool children. Discussion: LEAs are strongly regular preschool programs might have The full continuum of alternative encouraged to place children with to place preschool children with placements at 34 CFR 300.551, disabilities in the schools and disabilities in private preschool including integrated placement options, classrooms they would attend if not programs as a means of providing such as community-based settings with disabled. However, the regulatory services in the LRE should be struck as typically developing age peers, must be provision has always provided that each it was not required by the statute, or available to preschool children with child with disabilities be educated in would be costly to implement. disabilities. the school he or she would attend if not Some thought the explanation about The overriding rule in this section is disabled unless their IEP required some LRE for preschool children with that placement decisions for all children other arrangement. (See, § 300.552(c)). disabilities should be in the regulation, with disabilities, including preschool Physical accessibility of school facilities as it is important that schools children, must be made on an is covered more fully by section 504 of understand that they may meet the individual basis. The reference in the the Rehabilitation Act of 1973 (Section requirements of paragraph (c) for note to ‘‘private school programs for 504) and the Americans with preschool children with disabilities by nondisabled children’’ was not intended Disabilities Act (ADA). participating in other preschool to suggest that private schools are not Changes: None. programs such as Head Start, operated required to comply with the ADA.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00235 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12640 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

The second part of Note 2 to proposed services might be disruptive, can be Discussion: This section was not § 300.552 cited language from the 1976 successfully educated in regular intended to require memoranda of published analysis of comments on the classrooms. Note 3 added no agreement or other special procedures regulations implementing Section 504 of requirements or services that exceed the that are not necessary to effectively the Rehabilitation Act of 1973. The statute, as the requirement to consider implement § 300.550. Requiring issues raised by that analysis positive behavioral interventions, agreements to be developed that are not (appropriate placement for a child with strategies, and supports to address the necessary for meeting the other LRE disabilities whose behavior in a regular behavior of children with disabilities requirements would be overly classroom significantly impairs the whose behavior impedes his or her prescriptive. education of other students, and learning or that of others, which is The requirement that disabled placement of a child with disabilities as contained in § 300.346(a)(2)(i), is taken students be educated with nondisabled close to home as possible) are addressed directly from section 614(d)(3)(B)(i) of students does apply to students with elsewhere in this attachment. the Act. Nevertheless, in the interest of disabilities who are in correctional Changes: A reference to preschool eliminating the use of notes in these facilities, to the extent that the children with disabilities has been regulations, Note 3 should be removed, requirement can be met consistent with added to the introductory paragraph of as it was merely an observation, based the terms of their incarceration, except § 300.552. Note 2 has been removed. on the requirements of the regulations. to the extent modified under the Comment: Several commenters authority in § 300.311. One way the LRE requested adding language that would Changes: Note 3 has been removed. requirements could be met for students prohibit States from using a funding Nonacademic Settings (§ 300.553) with disabilities in prisons would be to mechanism to provide financial include them in the educational incentives to place children with Comment: None. activities of nondisabled prisoners and disabilities in a particular type of Discussion: The note following this provide appropriate services in that placement and to specify that State section in the NPRM pointed out that environment. If a State has transferred funding mechanisms must be this provision is related to the authority for the education of students ‘‘placement neutral’. requirement in the regulations for with disabilities who are convicted as A number of commenters asked that section 504 of the Rehabilitation Act of adults under State law and incarcerated the regulations explicitly include a 1973, and emphasized the importance of in adult prisons to another agency, the presumption that placement of children providing nonacademic services in as other agency, not the SEA, would have with disabilities is in the regular class, integrated a setting as possible, to ensure that LRE requirements are met and that the placement team must especially for children whose as to that class of students. consider the use of positive behavioral educational needs necessitate their The note following this section in the interventions, and supplementary aids being solely with other disabled NPRM reflected the important fact that, and services before concluding that children during most of the day. Even except as provided in § 300.600(d) placement in a regular class is not children with disabilities in residential (regarding students with disabilities in appropriate for a child with a disability. programs are to be provided adult correctional facilities), children Others asked that the substance of Note opportunities for participation with with disabilities in public and private 3 (explaining that if behavioral other children to the maximum extent institutions are covered by the interventions are incorporated into the appropriate to their needs. However, in requirements of these regulations, and IEP many otherwise disruptive children light of the decision to remove all notes that the SEA has an obligation to ensure will be able to participate in regular from these final regulations, the note that each applicable agency and classrooms) be incorporated into the following this section would be institution in the State meets these regulations. Others felt that Note 3 removed. requirements. Whatever the reasons for added steps and services that exceeded the child’s institutional placement, if he the statute. Changes: The note following this or she is capable of education in a Discussion: Section 300.130(b) section has been removed. regular class, the child may not be incorporates into the regulations the Children in Public or Private Institutions denied access to education in a regular new statutory provision that specifies (§ 300.554) class, consistent with § 300.550(b). that if a State has a funding mechanism Timelines for development of that distributes State funds on the basis Comment: One commenter thought memoranda of agreement or other of the type of setting in which a child that the language of this section was special implementation procedures is served, that mechanism may not ambiguous and left confusion as to would be overly prescriptive. In light of result in placements that violate the LRE whether special arrangements with the decision to remove notes from these requirements, and if the State does not public and private institutions were final regulations, the note would be have policies and procedures to ensure required whether they were needed or removed. compliance with that obligation, it not. Another commenter proposed Changes: Section 300.554 has been provides the Secretary with an changes that would require reworded to clarify that special assurance that it will revise the funding arrangements such as a memorandum of arrangements with public and private mechanism as soon as feasible. Given understanding with all public and institutions are only required if needed that requirement, no further change is private institutions. One commenter to ensure that § 300.550 is effectively necessary here. thought that the note following this implemented. A technical change has A presumption of placement in a section conflicted with other regulations been made to the regulation to make regular class is already embodied in concerning incarcerated students and clear that the SEA’s responsibility does § 300.550. Note 3 to this section in the that those students should be excluded not include students with disabilities proposed regulations merely stated the from the subject of the note. Another who are convicted as adults under State reasonable conclusion that if behavioral commenter asked that the substance of law and incarcerated in adult prisons. interventions are incorporated into the the note be incorporated into the The note following this section has been IEPs of children with disabilities, many regulation and that timelines for removed and a new paragraph has been of these children, who without those compliance be included. added to § 300.300(a) to more generally

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00236 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12641 make the point that services and Act. The role of SEAs in implementing B and FERPA to request an explanation placement decisions must be based on the requirements of the Act will be and interpretation of the record. The a child’s individual needs and not carefully reviewed by OSEP in its explanation and interpretation by the category of disability. monitoring of States. school could entail showing the parent Changes: None. the test question booklet, reading the Technical Assistance and Training questions to the parent, or providing an Activities (§ 300.555) Access Rights (§ 300.562) interpretation for the responses in some Comment: Some commenters asked Comment: A number of commenters other adequate manner that would that parents and advocates be included were concerned about the types of inform the parent. in the training mentioned in paragraph records to which parents have access With regard to parents having access (b) of this section. Another commenter under this section. For example, some to ‘‘raw data or notes,’’ FERPA exempts asked that the regulation make clear that believed that the regulations should from the definition of education records education support personnel as well as make clear that parents would not have under 34 CFR 99.3 those records teachers and administrators are fully access to copyrighted materials such as considered to be ‘‘sole possession informed and provided technical test protocols, or private notes of an records.’’ FERPA’s sole possession assistance and training necessary to evaluator or teacher. Others took the exception is strictly construed to mean help them meet their LRE opposite view, urging that whenever ‘‘memory-jogger’’ type information. For responsibilities. Another commenter raw data or notes are used to make a example, a memory-jogger is wanted SEAs to provide specific determination about a student, that information that a school official may training and information on LRE for information should be subject to parent use as a reference tool and, thus, is children who are deaf and hard of access. Commenters also requested generally maintained by the school hearing. clarity on the question of the schools’ official unbeknownst to other Discussion: As a matter of good liability for allowing parents access to individuals. practice, SEAs and LEAs are encouraged records under these regulations when With respect to the issue of liability to develop opportunities for school other laws or contractual agreements for disclosing information to parents personnel (including related service prohibit such disclosure. when other laws or contractual providers, bus drivers, cafeteria One commenter asked that the right obligations would prohibit it, public workers, etc.) and parents to learn be phrased as the right ‘‘to inspect and agencies are required to comply with together about all of the requirements review all records relating to their the provisions of IDEA and FERPA, and under the Act because these experiences children’’ rather than to ‘‘all education must ensure that State law and other will improve cooperation among school records relating to their children.’’ contractual obligations do not interfere personnel and between schools and Discussion: Part B incorporates and with compliance with IDEA and FERPA. parents and lead to improved services cross-references the Family Educational Federal copyright law protects against for children with disabilities. However, Rights and Privacy Act (FERPA). Under the distribution of copies of a regulation on this point is not Part B, the term ‘‘education records’’ copyrighted document, such as a test appropriate, as SEAs need the flexibility means the type of records covered by protocol. Since IDEA and FERPA to respond to particular circumstances FERPA as implemented by regulations generally do not require the distribution in their jurisdictions. For the same in 34 CFR part 99. Under § 99.3 (of the of copies of an education record, but reason, additional specificity about the FERPA regulations), the term rather parental access to inspect and school personnel who need information ‘‘education records’’ is broadly defined review, Federal copyright law generally and training or the subject matter of that to mean those records that are related to should not be implicated under these training is not appropriate. a student and are maintained by an regulations. Changes: None. educational agency or institution. There is nothing in the legislative (FERPA applies to all educational history of section 615(b)(1) of the Act to Monitoring Activities (§ 300.556) agencies and institutions to which funds suggest that it expanded the scope of Comment: One commenter asked that have been made available under any information available to parent States be required to establish criteria program administered by the Secretary examination beyond those records that that would trigger monitoring reviews of of Education.) they would have access to under LEA placement procedures to ensure Records that are not directly related to FERPA. compliance with LRE requirements a student and maintained by an agency because of the long history of violations or institution are not ‘‘education Changes: None. of these provisions. Another asked that records’’ under FERPA and parents do Comment: There were a variety of the regulations specify that SEAs must not have a right to inspect and review comments regarding the timeline in initiate enforcement actions, if such records. For example, a test paragraph (a) for agency compliance appropriate. protocol or question booklet which is with a parent request to inspect and Discussion: SEAs, under their general separate from the sheet on which a review records. Some commenters supervisory responsibility, are charged student records answers and which is thought it should be ‘‘45 school days’’ with ensuring that the requirements of not personally identifiable to the rather than 45 calendar days. Others felt the Act are met. That responsibility student would not be a part of his or her that 45 days was too long, and that includes monitoring LEA performance, ‘‘education records.’’ However, Part B access should be provided usually providing technical assistance and and FERPA provide that an educational within 10 days and no longer than 30 information on best practices, and agency or institution shall respond to days after the request. Others wanted a requiring corrective action and reasonable requests for explanations and one business day timeline if the agency instituting enforcement actions when interpretations of education records. (34 has initiated an expedited due process necessary. The provisions of this section CFR 300.562(b)(1); 34 CFR 99.10(c)). hearing. Another commenter asked that reinforce the active role SEAs need to Accordingly, if a school were to agencies have to respond to a request to play in implementing the entire Act and maintain a copy of a student’s test inspect and review before any meeting emphasize the importance of the LRE answer sheet (an ‘‘education record’’), that parents now have the right to requirements in meeting the goals of the the parent would have a right under Part attend, not just before IEP meetings and

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00237 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12642 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations due process hearings. Other commenters greatest extent possible to prevent of reproduction and postage. Under wanted access to be required at least confusion and limit administrative FERPA, a school may charge a fee for a five days before an IEP meeting and burden on participating agencies. copy of an education record which is wanted it made clear that if State or Therefore, it would not be appropriate made for the parent, unless the local law provided for shorter timelines, to give parents additional rights to imposition of a fee effectively prevents that those timelines must be met. copies of their child’s records. FERPA the parent from exercising the right to Discussion: The 45 day timeline is generally provides for a right to inspect inspect and review the student’s taken from FERPA, to which these and review records (34 CFR § 99.10) and education records. A school may not regulations are tied by statute. FERPA permits agencies to charge fees for charge a fee to search for or to retrieve requires that each educational agency or copies of education records provided to the education records. (34 CFR 99.11). institution establish appropriate parents. (34 CFR 99.11). Agencies may of course adopt policies procedures for the granting of a request These rules would apply to education of making copies available free of charge by parents for access to the educational records of a student that concern and are encouraged to do so. Agencies records of their children within a services required under the IDEA as may use Part B funds to cover the costs reasonable period of time but in no case well as all other education records. that otherwise would be charged to more than 45 days after the request has Paragraph (b)(2) of § 300.562 provides parents. been made. In order not to confuse and that a participating agency is required to Changes: None. increase administrative burden, these provide copies of education records to regulations are intended to be consistent a parent if failure to do so would Consent (§ 300.571) with FERPA where possible. In practice, effectively prevent the parent from Comment: One commenter noted an schools often provide access within a inspecting and reviewing the records. apparent contradiction between this period of time that is considerably (See, also 34 CFR 99.10(d)(1)). One such section, which requires parental consent shorter than the 45-day time limit, instance would be if the parent lives before records are disclosed, and which is the maximum time allowed for outside commuting distance of the proposed § 300.529(b), which requires compliance. participating agency. The Secretary has that LEAs transmit copies of special The commenters are correct that the decided that it would impose education and disciplinary records of a new expedited due process hearing unnecessary burden to require child to appropriate authorities when procedures will require prompt access participating agencies to provide copies reporting a crime to those authorities. by parents when requested, but the except as described previously. Discussion: As explained in the regulations already adequately However, participating agencies are free discussion of §§ 300.529 and 300.529(b) addresses the obligation of the to adopt policies of providing copies in permit the transmission of copies of participating agencies to provide access other cases, if they choose to do so. education records only to the extent that before a hearing and so no more specific Access should not be required to disclosure without parental consent is timeline is added to the regulations. documents that are not covered by the permitted by FERPA. Because the prior However, the regulations should be definition of education records, such as § 300.571 would have prohibited changed to acknowledge the new teacher or evaluator manuals. The disclosures without parent consent to expedited due process hearing requirements of paragraph (b)(1) of this agencies, such as law enforcement or procedures in §§ 300.521–300.528 section and 34 CFR 99.10(c) which juvenile justice agencies, that are not concerning discipline. Changes are not provide that parents may request an ‘‘participating agencies’’ under made with respect to other meetings, in explanation and interpretation of their §§ 300.560–300.577 even though light of the confusion and increased children’s education records will permit disclosure without parent consent to administrative burden inherent in such parents sufficient information about the these entities in certain circumstances a change. Public agencies, however, are contents of their children’s education would have been permitted under encouraged to provide parents access, records. FERPA, a change should be made to this when requested, in advance of these Changes: None. section so that these regulations permit meetings to the greatest extent possible. Fees (§ 300.566) disclosures to the extent they are Changes: Paragraph (a) of this section permitted under FERPA. has been amended to acknowledge that Comment: Several commenters Changes: Paragraph (a) has been access rights also apply to the new requested that this section make clear amended to permit disclosures without expedited due process hearing that fees that can be charged may not parental consent to the agencies procedures under §§ 300.521–300.528. include the cost of the labor involved in identified in § 300.529, to the extent Comment: Other commenters asked copying the records. Others asked that permitted under FERPA. that parents receive at no cost copies of participating agencies not be permitted their child’s records prior to meetings or to charge parents more than the actual Destruction of Information (§ 300.573) hearings, rather than just have the right costs they incur in copying the records, Comment: One commenter suggested to inspect and review those records. or charge more than the prevailing rate that destruction of student records Another commenter asked that the in the community. Commenters also could act to deny students future regulations specify that parents or their asked that agencies not be permitted to benefits such as private insurance legal representatives have the right to require parents to provide private coverage and assistance in college. copy any record they feel they need for financial information before providing Discussion: The regulations provides an agency-specified reasonable charge copies of records at no cost. Some that parents must be informed when per page. Another commenter stated commenters asked whether LEAs could personally-identifiable information is no that parents or their legal use Part B funds to cover the costs of longer needed to provide educational representatives should also have access providing parents copies so that fees services to the child. This notice would to any manuals used in preparing or would not have to be charged. normally be given after a child evaluating any student records. Discussion: Under these regulations graduates or otherwise leaves the Discussion: As explained previously, and those implementing FERPA, agency. As the note following this these regulations should be consistent participating agencies are entitled to section in the NPRM pointed out, with those implementing FERPA to the charge reasonable fees for the actual cost personally-identifiable information on a

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00238 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12643 child may be retained permanently Disciplinary Information (§ 300.576) stated that these procedures incorporate unless a parent requests that it be Comment: One commenter requested language from the old regulations destroyed. that the term ‘‘disciplinary action’’ be concerning disapproval of State plans, The purpose of the destruction option defined. A commenter asked that the which is no longer relevant in light of is to allow parents to decide that records regulations make clear that action taken changes in the statute. Another about a child’s performance, abilities, in response to conduct that was a commenter noted that proposed and behavior, which may possibly be manifestation of the child’s disability is § 300.583 mentioned disapproval of State plans and requested that it be stigmatizing and are highly personal, are not ‘‘disciplinary action’’ under this revised to refer to denial of eligibility. not maintained after they are no longer section. Another asked that the results needed for educational purposes. On the Discussion: The Department does not of a manifestation review be included in agree that the procedures in §§ 300.580– one hand, parents may want to request the student records to protect the child destruction of records as it is the best 300.589 are overly detailed. When the as well as the educational agencies. Secretary proposes to deny a State’s protection against improper and One commenter asked that this unauthorized disclosure of what may be eligibility, withhold funds or take other section be revised to clarify that before enforcement action and when a State sensitive personal information. applying a policy and practice of However, individuals with disabilities has requested a waiver of supplement transmitting disciplinary information in not supplant or maintenance of effort may find that they need information in the student records of disabled children, their education records for other requirements, it is important to all an LEA must first have such a policy parties that the process through which purposes, such as public and private and practice for the student records of insurance coverage. those issues will be decided is clearly nondisabled students, and that described, so that time, money and In informing parents about their rights transmissions of student records that under this section, it would be helpful effort are not spent resolving procedural include disciplinary information to a questions instead of the underlying if the agency reminds them that the student’s new school under paragraph records may be needed by the child or issues. The commenter is correct that (c) can only occur to the extent such proposed §§ 300.580–300.586 are the parents for social security benefits or information is transferred for other purposes. Even if the parents substantially the same as old regulations nondisabled students. that addressed disapproval of a State request that the information be Discussion: It is important that the destroyed, the agency may retain the plan, and that State plans are no longer regulations allow school districts to required by the statute. When necessary, information described in paragraph (b) understand what information may be however, these same procedures were of this section. transmitted under this section. Under designated in the past by the Secretary In instances in which an agency Section 504, schools may not take a as the procedures to follow on a intends to destroy personally- disciplinary action that constitutes a proposed denial of State eligibility, a identifiable information that is no change of placement for behavior that concept that remains in the law. longer needed to provide educational was a manifestation of a child’s Changes: A technical change has been services to the child (such as after the disability. Making this point in the made to § 300.583(a)(1) to refer to denial child has graduated from, or otherwise context of these regulations will assist of State eligibility rather than State plan leaves the agency’s program), and schools in understanding what disapproval. informs parents of that determination, information may not be considered a the parents may want to exercise their statement about a disciplinary action Enforcement (§ 300.587) right to access to those records and and protect the interests of children Comment: Some commenters stated request copies of the records they will with disabilities in not being identified that the regulations should contain a need to acquire post-school benefits in as disciplinary problems because of trigger when the Department must the future. In the interest of limiting the behavior that is a manifestation of their initiate enforcement action for use of notes in these regulations, the disability. Further regulations are not systematic noncompliance with the Act. note following this section would be necessary about what information may These commenters wanted a similar removed. be transmitted to another school to trigger provision added to § 300.197 Changes: The note following this which the child transfers. regarding SEA enforcement against section has been removed. Further regulation is not needed to noncompliant LEAs. One commenter Children’s Rights (§ 300.574) make clear that the LEA’s policy on asked that paragraph (c) be revised to transmitting disciplinary information specify that fund withholding first be Comment: Several commenters asked must apply to both nondisabled and limited to funding for administrative that the substance of the notes following disabled students, as that provision is personnel of the noncompliant SEA or this section in the NPRM be already contained in paragraph (a) of LEA, so as to prevent denial or incorporated in the regulations. this section as to an LEA’s policy. An interruption in services to children with Discussion: Because of the importance LEA that had a policy that applied disabilities. Another commenter of clarifying the relationship of parent equally to nondisabled and disabled requested that the enforcement and child rights under IDEA and students but applied that policy only to mechanisms mentioned in the note be FERPA, including the new provisions of transfers of records of disabled students incorporated into the regulation. the IDEA concerning transfer of rights at would be in violation of Section 504, as Several commenters objected to the age of majority, and the general well as Part B. language in paragraph (e) which decision to eliminate all notes in these Changes: None. indicated that the Secretary would have regulations, the substance of the notes a variety of enforcement actions following this section in the NPRM Department Procedures (§§ 300.580– available if a State were not providing would be incorporated into the 300.589) FAPE to children with disabilities who regulations. Comment: One commenter objected are convicted as adults under State law Changes: The substance of Notes 1 that the procedures in proposed and incarcerated in adult prisons. The and 2 have been incorporated into the §§ 300.580–300.589 are overly detailed commenters expressed the belief that regulations. and bureaucratic. This commenter also the statute and its legislative history

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00239 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12644 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations make clear that the only enforcement agency, the statutory language limits on a State’s waiver request, interested action for failure to provide services to withholding a proportionate share of the parties are afforded the opportunity to individuals convicted as adults under State’s total grant under section 611 of present evidence on whether FAPE is State law and incarcerated in adult the Act. However, the statute does not currently available to all children with prisons when the State has assigned impose restrictions on the Department’s disabilities and whether the State will responsibility for ensuring compliance use of other enforcement mechanisms. be able to ensure that FAPE remains with the IDEA to an agency other than The legislative history on this issue available to all eligible children with the SEA under section 612(a)(11)(C) of shows two primary concerns, one is the disabilities if the Secretary provides a the Act would be to withhold that reasonable limitation of services to this waiver. This would include a wide agency’s pro-rata share of the Part B population in order to allow States to variety of topics, such as the State’s grant. balance bona fide security and ability to ensure an adequate supply of Discussion: It would not be advisable compelling penological concerns against qualified personnel to provide FAPE, or to limit, through regulation, the the special education needs of the to maintain an effective and efficient discretion afforded the Secretary by the individual, and the other is that a State due process hearing system. Even if a statute regarding appropriate not be threatened with a withholding of waiver is granted, the State will still be enforcement mechanisms and when their entire grant amount for a failure to required to comply with all the other they should be employed. Given the serve this population. requirements of Part B. very wide variety in potential situations The regulations address these Changes: A technical change has been in which compliance issues arise, and concerns by interpreting the statutory made to conform to the statutory the significant differences in the scope provisions in a way that limits provision that the Secretary provides a and nature of the issues presented in withholding of funds as Congress waiver in whole or in part. compliance situations, the Secretary intended, but allows the Secretary, needs the discretion to exercise should he or she believe that limited Subpart F reasoned judgment about how best to withholding of funds is not the Responsibility for all Educational achieve compliance and the tools to be appropriate means to ensure Programs (§ 300.600) used to do so. compliance, the additional enforcement Under the statute, the Secretary, upon options authorized by law. Comment: Several commenters a finding of a State’s noncompliance Changes: The note following this requested that this section be revised to with the provisions of Part B or of an section has been deleted. emphasize the SEA’s obligation to LEA’s or State agency’s noncompliance monitor implementation of the Act. One Waiver of Requirement Regarding with any condition of their eligibility, commenter requested that States be supplementing and not Supplanting shall withhold further payments, in required to verify that all corrective With Part B Funds (§ 300.589) whole or in part, or refer the matter for actions have been taken within a certain appropriate enforcement action, which Comment: One commenter said that period of time. Another commenter may include referral to the Department because State requests for waivers of asked that paragraph (d) be revised to of Justice. This statutory language provisions of the Act are major policy specify that the SEA retains supervisory provides clear authority for including in proposals, the public participation authority over any public agency to the regulations the three enforcement requirements of §§ 300.280–300.284 which the Governor or his or her options of withholding, referral to the should apply to the State’s waiver designee has assigned responsibility for Department of Justice, and other request proposal. The commenter also children with disabilities who are enforcement actions authorized by law. asked that § 300.589 be revised to convicted as adults under State law and The other enforcement actions permit public comment to be considered incarcerated in adult prisons. authorized by law include those set out on any impact the waiver request will Discussion: A strong SEA monitoring in the General Education Provisions Act have on the State’s ability to process to ensure effective (GEPA), which are generally applicable successfully implement the Act, not just implementation of the Act is crucial to to recipients of funds from the the FAPE provisions of the Act. improving educational results for Department and are consistent with the Discussion: The procedures proposed children with disabilities. A basic goal of ensuring compliance with the by the Secretary provide for public component of eligibility has long been requirements of this program. comment on the question of whether a that the SEA exercises general The enforcement mechanisms waiver should be granted by the supervisory responsibility over all mentioned in the note to this section are Secretary after the State has first made educational programs for children with authorized by GEPA. The purpose of the a prima facie showing that FAPE is and disabilities in the State, including note is merely to inform the readers that will continue to be available if the ensuring that those programs meet the these are some of the additional waiver is granted. (See § 300.589(d)). requirements of Part B. This enforcement procedures that the This process is adequate to ensure that responsibility includes not just Secretary could choose to apply to a the views of the public are considered monitoring, and enforcement when given instance of noncompliance. In the in deciding waiver requests and noncompliance is not corrected, but also interest of limiting the use of notes in §§ 300.280–300.284 should not be effective technical assistance that the regulations, the note would be applied to the State’s waiver request focuses on best practice designed to deleted. proposal. improve the substantive content and In cases where the State has Sections 612(a)(18)(C) and results of special education. We know, transferred to a public agency other than 612(a)(19)(C)(ii) of the Act give the from long experience in administering the SEA the responsibility for ensuring Secretary the authority to grant a waiver this Act, that if SEA monitoring is lax, compliance with the Act as to children in whole or in part if the State provides noncompliant practices emerge at the with disabilities who are convicted as ‘‘clear and convincing evidence that all local level and indicators of adults under State law and are children with disabilities have available performance for children with incarcerated in adult prisons, and the to them a free appropriate public disabilities decline. Secretary finds substantial education.’’ Under § 300.589(d), when A priority of the Department’s noncompliance by that other public the Secretary conducts a public hearing monitoring will be the State’s

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00240 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12645 compliance regarding the State’s the formula subgrants to LEAs under individuals with a past or present supervisory role in the implementation § 300.712, is to provide funding that the affiliation, such as employment, with an of Part B. However, further regulation is SEA can direct to address particular agency receiving funding under the Act not necessary. There is a great variety of needs not readily addressed through from being considered a part of the circumstances that may give rise to formula assistance to school districts individuals with disabilities, or parents compliance problems, and States should such as funding for services to children of children with disabilities, majority. have some flexibility in fashioning who have been suspended or expelled. Others asked that the regulations remedies and timelines for correction. The SEA can also direct these funds to encourage States to seek the Verifying that corrective action has been promote innovation, capacity building, participation of nonacademic completed has always been an integral and systemic changes that are needed to professionals on the panels or to recruit part of the State’s supervisory role. improve educational results. parent representatives through The statute permits the Governor or Changes: Consistent with the decision nominations from parent and advocacy appropriate State designee to assign to to not include notes in these groups. another agency supervisory regulations, the note following this Discussion: An advisory panel will be responsibility for children with section has been removed. most effective if it fairly represents the disabilities who are convicted as adults various interests of the groups Establishment of Advisory Panels under State law and incarcerated in concerned with the education of (§ 300.650) adult prisons. The statute does not children with disabilities and is contemplate that the SEA would retain Comment: One commenter wanted perceived as such by the community at supervisory authority over the the regulation revised to specify that the large. In selecting members for the State education of children with disabilities panel must be independent and operate advisory panel, States are encouraged to who are convicted as adults under State under the direction of officers elected by solicit individuals to serve as members law and incarcerated in adult prisons if members of the panel. who do not have, and will not be the Governor or designee has assigned Discussion: Additional specificity is perceived as having, a conflict of that responsibility to another agency. not needed. Within the limits of the interest in representing the views of the Changes: Consistent with the decision minimum requirements of the group they were selected to represent. to not include notes in these regulations, the operation of these That said, additional regulation is not regulations, the note following this panels should be left to the States. necessary or appropriate. The section has been removed. The concept from the note, that the requirements of § 300.651 are statutory. State advisory panel would advise on States should have the discretion to Amount Required for Subgrants to LEAs the education of children with appoint members to these panels, (§ 300.623) disabilities who have been convicted as within these statutory requirements, in Comment: None. adults and incarcerated in adult prisons, a manner that best meets their needs. Discussion: The amount that will be even if a State has assigned general There is nothing in the Act that required to be distributed as subgrants supervision responsibility for those prohibits an individual with a to LEAs for capacity-building and students to an agency other than the disability, or the parent of a child with improvement activities as specified in SEA should be incorporated into a disability, from employment with the § 300.622 will vary from year to year § 300.652, which addresses the SEA or an LEA, and there will be many and is determined by the size of the functions of the State advisory panel. instances when the perspective that an increase in the State’s allocation. Funds This is consistent with the purpose of individual with a disability or the used for the required subgrants to LEAs the advisory panel under section parent of a child with a disability may in one year become part of the required 612(a)(21)(A) of the Act—to provide bring to decisions as an employee of a amount that must be flow-through to policy guidance with respect to special public education agency will greatly LEAs consistent with the formula in education and related services for improve education for children with § 300.712 in the next year. children with disabilities in the State. disabilities in that jurisdiction. The term In those years in which the State’s Changes: The second sentence of the ‘‘children with disabilities’’ is a defined allocation does not increase over the note has been integrated into § 300.652. term under the Act and in the context prior year by at least the rate of The note has been removed. of Part B, refers to those children with inflation, the required set-aside for Membership (§ 300.651) disabilities from birth through age 21 capacity-building and improvement who are eligible for services under Part grants will be zero. However, States may Comment: The Department received a B. always use, at their discretion, funds variety of comments concerning the Changes: None. membership of the State advisory reserved for State-level activities under Advisory Panel Functions (§ 300.652) § 300.602 for these subgrants. panels. Many commenters wanted Changes: Consistent with the decision representatives of specific additional Comment: Several commenters sought to not include notes in these groups, such as a representative of a expansion of the duties of the advisory regulations, the note following this Parent Training and Information Center panel to encompass various operational section has been removed. in the State, added to the list of tasks, such as overseeing the mandatory membership. Several development and implementation of a State Discretion in Awarding Subgrants commenters wanted paragraph (b) to be reliable and timely data system on due (§ 300.624) modified to permit parents of adults process hearings. Comment: None. who had been children with disabilities, Discussion: Section 612(a)(21)(A) of Discussion: This section specifies that or persons who had relatively recent the Act specifies that the purpose of the States may establish priorities for experience (e.g., within the last three State advisory panels is to provide subgrants under § 300.622 to LEAs and years) as a parent of a child receiving policy guidance with respect to special may award those subgrants services under the Act, to be counted as education and related services for competitively or on a targeted basis. a part of the mandatory majority. children with disabilities in the State. This is because the purpose of subgrants Some commenters wanted a provision The functions of the advisory panel under § 300.622, as distinguished from added to paragraph (b) to prohibit specified in § 300.652 are drawn from

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00241 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12646 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations the statutory charge of the advisory of Part B in resolving complaints under issues that could have been the subject panels. The regulations do not mandate the procedures in §§ 300.660–300.662. of a due process hearing request. A operational duties for an advisory panel. However, in light of the decision to State’s general supervisory However, if the SEA wants to assign remove all notes from these regulations, responsibility is not satisfied by relying other responsibilities to the advisory and to emphasize the importance of on private enforcement efforts through panel, it may do so, as long as those SEA action to resolve complaints in a due process actions for all issues that other duties do not prevent it from way that provides individual relief could be the subject of a due process carrying out its responsibilities under when appropriate and addresses hearing. In addition, the State complaint IDEA. systemically the provision of process and mediation provide parents Changes: No change has been made in appropriate services, a provision would and school districts with mechanisms response to these comments. See be added to this section to clarify that that allow them to resolve differences discussion of comments received under if it has found a failure to provide without resort to more costly and § 300.650, regarding a change to appropriate services to a child with a litigious resolution through due process. § 300.652. disability through a complaint, the In the interests of building resolution addresses both how to cooperative, collaborative relationships Advisory Panel Procedures (§ 300.653) remediate the denial of services, which with all parties involved in the Comment: Some commenters asked can include an award of compensatory education of children with disabilities, that paragraph (d) be revised to require services, monetary reimbursement, or States are encouraged to offer that public notice of advisory panel other corrective action appropriate to mediation, as appropriate, when a State meetings and agendas be made far the needs of the child, and how to complaint has been filed, as well as enough in advance so that interested provide appropriate services for when a due process hearing has been parties, such as parents and others, may children with disabilities. requested. The existence of ongoing plan to attend. At least one commenter Changes: A new paragraph (b) has mediation in and of itself should not be requested that the term ‘‘reasonable and been added on how an SEA remedies a viewed as an exceptional circumstance necessary expenses’’ in paragraph (f) be denial of appropriate services. The prior under § 300.661(b); however, if the revised to indicate that child care paragraph (b) has been integrated into parties agree that the complaint expenses are reimbursable. paragraph (a) and the reference to parent resolution timeline should be extended Discussion: Since the purpose of training and information centers is because of the mediation the SEA may announcing meetings and agendas for corrected. The note has been deleted. extent the timeline for resolution of the those meetings is to allow the interested complaint. public to attend, the meetings and Minimum State Complaint Procedures In light of the general decision to agendas of the meetings of the advisory (§ 300.661) remove all notes from these regulations, panels should be announced early Comment: A number of commenters the notes following this section would enough so that interested parties can requested that the possibility of be removed. Because these notes plan to attend those meetings, but an Secretarial review be reinstated in the provided an important explanation of absolute time line is not necessary. A final regulations while others supported how the State complaint process similar standard is used in these the change. Some State commenters interacts with the due process hearing regulations at § 300.281(c)(2) regarding objected to having to resolve complaints process, they would be incorporated notice of public hearings about State on matters on which parents could have into the regulation. This will reduce policies and procedures related to the elected to file a due process hearing unnecessary disputes between SEAs and Part B program. Furthermore, States request. complainants in cases in which a should have the discretion to decide Discussion: The possibility of complaint raises an issue that also is what are reasonable and necessary Secretarial review has not been an raised in a due process hearing. expenses related to participation in efficient use of the Department’s Changes: Paragraphs (b) and (c) have meetings and performing other duties of resources, which can be better directed been combined into a new paragraph the advisory panel. These may include to improving State system-wide (b). A new paragraph (c) has been added child care expenses or personal assistant implementation of the Act for the to clarify that if an issue in a complaint services. benefit of students with disabilities. is the subject of a due process hearing, Changes: Paragraph (d) is revised to Because of the unsuitability of the that issue (but not those outside of the require that advisory panel meetings Department evaluating factual disputes due process proceeding) would be set and agenda items are announced in individual cases, most requests for aside until the conclusion of the due enough in advance to afford interested Secretarial review are denied. The process hearing; that the decision of an parties a reasonable opportunity to existence of the Secretarial review issue in a due process hearing would be attend and that the meetings be open to process may falsely encourage parents binding in a State complaint resolution; the public. to delay taking an issue to mediation or and that a public agency’s failure to due process so that their case is not implement a due process decision Adoption of State Complaint Procedures timely filed. The Department has other would have to be resolved by an SEA. (§ 300.660) more efficient mechanisms such as on- The notes following this section have Comment: Several commenters site monitoring reviews, policy reviews been deleted. requested that the note following this and complaint referrals, to ensure section be deleted, while others thought correction of violations that are brought Filing a Complaint (§ 300.662) it was important to make the point that to its attention. In addition, the Comment: Commenters generally compensatory services can be awarded Department intends to carefully assess supported the concept, reflected in by an SEA. States’ efforts to improve their paragraph (c) of this section, that there Discussion: The note merely reflected complaint resolution processes where should be a reasonable time limit on what has always been the case—that the need is identified. issues subject to the complaint process. SEAs have the authority to order State responsibility for ensuring One commenter wanted a delayed compensatory services in appropriate compliance with the Act includes effective date for this limitation until circumstances as a remedy for violations resolving complaints even if they raise the individual notice of these complaint

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00242 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12647 procedures had been in effect for a year. be resolved, that concept would be takes effect. In particular, with regard to Another wanted States to be able to integrated into § 300.660(a). the base payments provision in waive that limitation for compelling Changes: Section § 300.660(a) has § 300.712(b), commenters expressed reasons. Another commenter wanted been revised to clarify that any concern that it could result in a States to have more flexibility to complaint includes complaints filed by reduction of funds for LEAs in the case disregard complaints that are weak or organizations or individuals from of an SEA that distributes more than 75 insubstantial, are a continuation of a another State. The note following this percent of its allocation to LEAs, and pattern of complaints that have section has been deleted. the LEA has a high child count. Because repeatedly been found factually or of the apparent absence of a ‘‘hold Subpart G—Allocation of Funds; legally unfounded, or that are about the harmless’’ provision, commenters Reports same issue as addressed in a recently recommended clarification that this closed complaint or compliance review. Allocations to States (§ 300.703) provision does not require an SEA to Another commenter objected to the Comment: None. reduce its allocation to an LEA. Other note, stating that a State should not have Discussion: A reference to allocating commenters asked whether proposed to deal with complaints filed by persons funds to the freely associated States was § 300.712(b)(2)(i) means that States outside the State. omitted from paragraph (a). should be allocating extra funds to LEAs Discussion: The time limits in Paragraph (a) incorrectly refers to the based on the total number of students, § 300.662(c) were added in recognition method of distribution in §§ 300.704– both regular and special education that at some point the issues in a 300.705. These sections are reserved. students, or whether States should complaint become so stale that they are Changes: A reference to freely allocate based on numbers of special not reasonably susceptible to associated States has been added and education students only. These subsequent resolution. However, such a the references to §§ 300.704–300.705 commenters requested that the phrase time limit should include an exception have been deleted. ‘‘relative numbers’’ be clarified. for continuing violations. States are free With respect to the note following this to accept and resolve complaints Permanent Formula (§ 300.706) section of the NPRM, a concern of one regarding alleged violations that Comment: None. commenter was that proposed occurred outside those timelines, just as Discussion: Paragraph (b)(2) refers to § 300.712(b)(2) could be construed as they are free to add additional the amount received by a State under limiting States’ ability to direct how protections in other areas that are not ‘‘this section’’ in the base year. Funds their LEAs expend Part B funds that inconsistent with the requirements of would not be provided under this have been reallocated to LEAs that had the Act and its implementing section of the regulations in the base not adequately provided FAPE to regulations. year. They would be provided under children with disabilities, and States must evaluate and resolve each section 611 of the Act, as indicated in recommended clarification that a State complaint on its own merits. It is § 300.703(b). may direct how any allocation to an reasonable for a State to resolve a Changes: The reference has been LEA is to be spent. complaint on an issue that is the same corrected to cite section 611 of the Act. A commenter recommended that, in as an issue in an earlier resolved calculating the distribution of the 15 complaint by reference to that earlier Increases in Funds (§ 300.707) percent allocation under the permanent complaint resolution if it has first Comment: None. formula, consideration be given for concluded, through review and Discussion: Section 300.707 indicates LEAs with a high incidence of children evaluation, that the facts and how allocations are to be made if the who live in institutional and other circumstances pertinent to the amount available for allocations to congregate care facilities, who have complaints are unchanged. If a State States under § 300.706 is equal to or special needs and attend public schools. were to refuse to accept a complaint greater than the amount allocated to the Discussion: Section 611(g)(2)(B)(i) of because it appeared to be similar to an States under ‘‘this section’’ for the the Act requires that when the issue in an earlier-resolved complaint preceding fiscal year. The reference to permanent formula becomes effective, without reviewing whether the facts and ‘‘this section’’ should be to section 611 LEAs be allocated base payments based circumstances pertinent to the of the Act. on 75 percent of the amounts that each complaints remain the same, the State Changes: The reference has been State received in the year prior to that could be ignoring potential violations of revised by replacing the words ‘‘this in which the permanent formula became the Act. section’’ the first time they appear with effective. Funds that States are required With regard to the statement in the ‘‘under section 611 of the Act’’. to allocate to LEAs above this level must note that States must resolve complaints be allocated based on children enrolled which allege violations of the Act Limitation (§ 300.708) in elementary and secondary schools within their respective State even if Comment: None. and children in poverty. This will result received from an individual or Discussion: The language in § 300.708 in some redistribution of funds among organization outside of the State, States describing conditions that are LEAs that have received funds above the are responsible for ensuring compliance ‘‘Notwithstanding § 300.707’’ are 75 percent level on a basis of counts of with Part B. actually consistent with § 300.707 since children with disabilities. However, A complaint about implementation of § 300.708 is mentioned in § 300.707 as because these provisions are based on the Act filed by someone outside of the establishing conditions. the Act, they cannot be changed through State may be as effective in bringing Changes: The reference has been regulations. States may address this compliance issues to the State’s clarified by rewording the first sentence redistribution of resources through attention as complaints from State of § 300.707. funds that they set aside for State level residents. In light of the general activities. decision to remove all notes from these Allocations to LEAs (§ 300.712) The IDEA Amendments of 1997 regulations, and to make clear the point Comment: Commenters were maintain, in section 611(f) of the Act, as that complaints from organizations or concerned about the distribution of reflected in § 300.370(a), the flexibility individuals from out of State must also funds when the permanent formula of States to provide additional support

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00243 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12648 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations to LEAs using these funds. However, it Act exceeds $4,924,672,200. The poverty. The note also encourages LEAs is appropriate to amend § 300.370 to regulations should be revised to ensure to include data on children who are clarify that SEAs may use these funds that charter schools established under enrolled in private schools and suggests directly, or distribute them on a State law as LEAs and LEAs not in alternative sources such as aggregate competitive, targeted, or formula basis existence in the year prior to the year in data on children participating in the free to LEAs. which the appropriation for the or reduced-price meals program under Section 300.712(b)(2)(i) is based on Assistance to States for the Education of the National School Lunch Act and section 611(g)(2)(B)(ii)(I) of the Act, Children with Disabilities program allocations under title I of the which requires that required flow exceeds $4,924,672,200 are eligible to Elementary and Secondary Education through funds to LEAs be distributed receive base payments. Act as bases for determining poverty. based on the relative numbers of In addition, if the boundaries of LEAs These suggestions still reflect options ‘‘children enrolled’’ in public and that were in existence or administrative for allocating funds, but need not be private elementary and secondary responsibility for providing services to specified in the regulations. The schools. Children enrolled include both children with disabilities ages 3 through requirement for States to use the best regular and special education students. 21 are changed, adjustments to the base data available to them should be The term ‘‘relative numbers’’, which payments of the affected LEAs also included in the regulations. is used in section 611(g)(2)(B)(ii) of the should be made. For example, a change Changes: The note has been removed Act and in proposed § 300.712(b)(2), in administrative responsibility might and § 300.712 has been expanded to adequately conveys the meaning that encompass a change in the age range for state that for the purpose of making the allocations of the 85 percent and the which an LEA is responsible for grants under this section, States must 15 percent will be the same proportion providing services such as where apply, on a uniform basis across all of the total available as the respective responsibility for serving high school LEAs, the best data that are available to numbers of children in the LEA to the students is transferred from one LEA to them on the numbers of children State totals. another. enrolled in public and private Section 300.712(b)(3) deals with the These adjustments will ensure that elementary and secondary schools and allocation of funds, not the use of funds. affected LEAs equitably share in their the numbers of children living in Section 611(g)(2)(B)(ii) of the Act, as base payments. The base amounts for poverty. reflected in proposed § 300.712(b)(2), new and previously existing LEAs, once requires that 15 percent of the funds recalculated, should become the new Former Chapter 1 State Agencies remaining after base payments be base payments for the LEAs. These base (§ 300.713) distributed based on the relative payments would not change unless the Comment: Commenters indicated that numbers of children living in poverty as payments subsequently need to be § 300.713, which mirrors the statutory determined by the SEA in each LEA. recalculated pursuant to § 300.712. language regarding payments to former The incidence of children living in Adjustments to base payments would Chapter 1 State agencies, should be institutional or other congregate care be based on the current numbers of clarified to indicate that these agencies facilities is not a factor in this children with disabilities served as must receive the current amount of their distribution, and cannot be added. determined by the SEA. In making a Part B allocation, rather than an amount However, SEAs may use funds available determination, the SEA may exercise that would not exceed the fiscal year for State level activities to provide substantial flexibility. For example the 1994 per child amount. Otherwise, the additional support for children in SEA may choose to revise base result would be a reduction of institutional or other congregate care payments based on the current location allocations to these agencies. The facilities. of children with disabilities included in commenters recommended adding a Changes: Section 300.370 has been a previous child count or a new count new paragraph (c) to § 300.713 to amended to add a new paragraph (c) to of children served by affected LEAs. provide that, in years where the per clarify that an SEA may directly use Changes: Section 300.712 has been child amount under Part B exceeds the funds that it retains but does not use for revised to clarify that, if LEAs are per child amount for fiscal year 1994, administration, or may distribute them created, combined, or otherwise each State agency shall receive the per to LEAs on a competitive, targeted, or reconfigured subsequent to the base year child amount under Part B for each formula basis. (i.e. the year prior to the year in which child to whom the agency is providing Comment: None. the appropriation under section 611(j) of special education and related services in Discussion: Although no comments the Act exceeds $4,924,672,200), the accordance with an IEP. were received for this Part regarding State is required to provide the LEAs Other commenters indicated the need base payments for new LEAs, a number involved with revised base allocations to clarify that payments to former of commenters on the Preschool Grants calculated on the basis of the relative Chapter 1 State agencies are targeted for for Children with Disabilities program numbers of children with disabilities direct service costs as in the past. regulations (34 CFR Part 301) raised the ages 3 through 21, or 6 through 21 Several commenters believe that issue of whether charter schools or depending on whether the State serves payments to former Chapter 1 State LEAs not in existence during fiscal year all children with disabilities ages 3 agencies must follow the child, and 1997 would be eligible for a base through 5, currently provided special recommended inserting the phrase payment under § 301.31(a) of the education by each of the affected LEAs. ‘‘including State-operated and State- regulations for the Preschool Grants for Comment: A number of commenters supported school programs’’ after 1994 Children with Disabilities program, and, requested that notes be deleted from the at the conclusion of § 300.713(a) to if so, how such payments should be regulations implementing Part B of ensure that the children who are calculated. IDEA. counted actually receive the funds for A similar issue exists with regard to Discussion: The note following this which they are eligible. base payments under the Assistance to section in the NPRM indicates that Some commenters stated that the States for the Education of Children States should use the best data available merger of the former Chapter 1 with Disabilities program after the to them in making allocations based on Handicapped program with Part B had appropriation under section 611(j) of the school enrollment and children living in a negative effect at the State level on

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00244 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12649 private special education schools, per child allocations that former State-supported programs, not to because funds intended for children are Chapter 1 Handicapped State agencies increase funding for State-operated and now being used by many States for both are entitled to as LEAs exceeds the State-supported programs themselves. State and municipal administrative amount per child that these agencies However, States, at their discretion, may costs. Other commenters recommended, received for fiscal year 1994 under the use funds available for State level consistent with the intent of the merger Chapter 1 Handicapped program in 40 activities to provide support for State- of the former Chapter 1 Handicapped States. SEAs in these States must operated or State-supported programs program with Part B, that these schools provide former Chapter 1 Handicapped under § 300.370. should be treated as LEAs for funding State agencies at least the minimum It should also be noted that, under the purposes, regardless of whether they amount per child that they are entitled Act, States are required to ensure that meet the Part B definition of LEA. to as LEAs, not the lesser amounts that all children with disabilities have access One commenter took issue with the they received per child under the to a free appropriate public education fact that the Act specifies a reporting Chapter 1 Handicapped program for regardless of the sources of funds that date of December 1 of the fiscal year, 1994. are used to provide that education. while the proposed regulation allows a For 10 States and the District of Ensuring that specific amounts of State, at its discretion, to report on Columbia, the minimum per child Federal funds are used for each of the December 1 or on the last Friday of amounts to which former Chapter 1 6 million children with disabilities who October. Since the Act sets a specific Handicapped State agencies are entitled receive special education services date, this commenter requests that only as LEAs are still slightly smaller than would be administratively unwieldy the statutory date be used in the the amounts that these agencies and would not necessarily help to regulation. received per child for 1994 under the ensure that States meet this Discussion: Funds provided to former Chapter 1 Handicapped program. In requirement. Chapter 1 State agencies that exceed these States, SEAs must provide the The Chapter 1 Handicapped program fiscal year 1994 levels are provided former Chapter 1 Handicapped State was merged with the IDEA Part B either because the amounts to which agencies with the amounts per child Assistance to States for the Education of former Chapter 1 State agencies are that these agencies are entitled to as Children with Disabilities program in entitled as LEAs, without regard to their LEAs. SEAs must then provide 1995. The merger was not affected by status as former Chapter 1 agencies, additional funds to the former Chapter the IDEA Amendments of 1997, and its exceed the minimum allocations for 1 Handicapped State agencies from the impact cannot be addressed by these former Chapter 1 agencies, or at the amounts that the SEAs set aside for regulations. discretion of the States from funds State level activities. The amount of Section 602(15) of the Act defines available to be set aside for State level these additional funds is equal to the LEA as including educational service activities. difference between the amount per child agencies. Educational service agencies The IDEA Amendments of 1997 that the former Chapter 1 State agencies are defined in section 602(4) of the Act maintain, in section 611(f), as reflected received under the Chapter 1 and § 300.10 as including public in § 300.370(a), the flexibility of States Handicapped program for 1994 and the institutions or agencies having to provide additional support to State amount per child they receive as LEAs, agencies beyond the formula multiplied by the lesser of the number administrative control and direction entitlement of LEAs under § 300.712. It of children ages 6 through 21 currently over a public elementary or secondary would be inappropriate, as well as served by the former Chapter 1 school. State agencies formerly provided inconsistent with the Act, to compel Handicapped State agencies or the funding under the Chapter 1 States that have voluntarily passed number of children ages 3 through 21 Handicapped program and which through higher levels of funding to State served by these agencies for 1994 under continue to provide special education agencies in the past to maintain those the Chapter 1 Handicapped program. and related services to children with levels of funding as a requirement. It is expected that for the Federal disabilities fall within this definition. There has been confusion in some fiscal year 1999 appropriation, which Individual schools that received funding States regarding the entitlement of will become available on July 1, 1999, through State agencies under the former Chapter 1 Handicapped State the minimum per child amounts that Chapter 1 Handicapped program are not agencies to funds distributed by formula will be provided to all LEAs, including LEAs under the Part B Assistance to to LEAs that would be above the former Chapter 1 Handicapped State States for the Education of Children amounts these State agencies received agencies, will exceed the per child with Disabilities program. per child for 1994 under the Chapter 1 allocations under the Chapter 1 Section 611(d)(2) of the Act specifies Handicapped program. Under the IDEA, Handicapped program in all States. that, for the purpose of allocating funds both before and after enactment of the Former Chapter 1 agencies are subject among States, States may report IDEA Amendments of 1997, the to the same requirements as other LEAs, children either as of December 1 or the amounts to which these State agencies and are not limited to using Part B funds last Friday in October of the fiscal year are entitled are minimum amounts. only for direct service costs. for which funds are appropriated. Using Former Chapter 1 Handicapped State Adding the phrase ‘‘including State- the same dates for establishing agencies are entitled to formula operated and State-supported school minimum funding levels for former allocations in the same amounts as other programs’’ after ‘‘1994’’ at the Chapter 1 Handicapped State agencies LEAs. They may also be eligible for conclusion of § 300.713(a) would not will reduce burden on States that count additional payments to bring their ensure that the children who are children in October by eliminating the funding levels per child up to the levels counted actually receive funds. need for a separate count of children they received under the Chapter 1 Moreover, the last paragraph in served by State agencies in December. Handicapped program for fiscal year § 300.713(a) deals with the optional use Changes: Language has been revised 1994. of funds available for State level in paragraph (a)(1) to clarify that the Under the initial allocation of fiscal activities to increase funding for LEAs amount that each former Chapter 1 State year 1998 funds, which became that formerly served children who had agency must receive is a minimum available on July 1, 1998, the minimum at one time been in State-operated or amount.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00245 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12650 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

Reallocation of LEA Funds (§ 300.714) Limitation for Freely Associated States requirements in section 618 of the Act Comment: One commenter (§ 300.719) are complex. The Secretary believes that recommended that this section be Comment: None. it would be better to address the data eliminated because it causes a Discussion: The references to ‘‘this reporting requirements of the new disincentive for LEAs to provide part’’ in paragraph (c) of this section section 618 as part of the clearance ‘‘adequate’’ or even more than should be changed to ‘‘Part B of the process for data collection rather than ‘‘adequate’’ FAPE. Act.’’ through these regulations. Another commenter stated that the Changes: Section 300.719 (c)has been Changes: The note has been removed. regulation must provide the State amended, consistent with the above Annual Report (§ 300.751) agency with a basis for determining that discussion. Comment: Commenters stated that an LEA is adequately providing FAPE to Annual Report of Children Served— while § 300.751(a) specifies the all children with disabilities residing in Report Requirement (§ 300.750) information that must be included in the area served by that agency with the report for any year before the total State and local funds, and indicated that Comment: Several commenters appropriation for section 611 of the Act there is a need for guidance on criteria objected to the note following § 300.750 first exceeds $4,924,672,200, it is for determining when any portion of the of the NPRM, stating that it reflects only unclear what information should be funds allocated under this part may be the requirements of prior law, and not included in the report after that date. removed. Criteria suggested by the all requirements in the current section The commenters indicated a need for commenter for this purpose include: (1) 611 of the Act. The commenters this clarification in the regulation. IEP related measures such as recommended that, if the note is retained, it needs to be revised to Other commenters recommended that appropriateness of measurable IEP goals the regulation clarify that if a child is and a high percentage of annual goals conform more closely to the current language used in the Act. For example, deaf-blind, that child must be reported successfully completed; (2) educational under that category, and if the child has inputs such as student staff ratios the references in the note to section 611(a)(5) of the Act should be deleted, more than one disability (other than including related services staff; and (3) deaf-blindness), that child must be a relatively large amount of unexpended since that section no longer exists. Also, the population that a State may count reported under multiple disabilities. IDEA funds. These commenters also requested that Discussion: The authority of SEAs to for allocation purposes no longer differs the regulations explain that the reallocate funds among LEAs if they from the population of children to responsibility for the annual census determine that an LEA is adequately whom the State must make FAPE count of deaf-blind children should be providing FAPE to all children with available, and this needs to be explained disabilities residing in the area served in the note. with the single and multi-State deaf- by the LEA and that the LEA does not Another commenter recommended blind projects. Discussion: Before the total need those funds to provide FAPE, is that the regulations on annual SEA appropriation for section 611 of the Act included in section 611(g)(4) of the Act. reports to the Department be amended first exceeds $4,924,672,200, a count of This authority cannot be removed to include the requirements of section children ages 3 through 21 will be used through regulations. However, it is 618(a)(1)(A) of the Act. for distributing funds. After this level is expected that SEAs would use this Discussion: The note following this reached, data on the number of children authority only in unusual circumstances section in the NPRM indicates that the (e.g., when there is a radical reduction number of children who are counted for served will continue to be necessary due in the number of children served by a the purpose of distributing funds may to the requirement in section 611(a)(2) LEA). be different from the children for whom of the Act that no State be allocated an Moreover, the instances in which an the States must make FAPE available. In amount per disabled child served SEA would reallocate the funds of an order to receive full funding under Part greater than 40 percent of the average LEA because the LEA is providing B of the IDEA, States must provide per-pupil expenditure in public adequate services and does not need the services to all children with disabilities elementary and secondary schools in funds should be relatively rare, and the ages 3 through 17, and to children 18 the United States. The language in circumstances causing such a through 21 when not inconsistent with § 300.751 should reflect this determination also should be unusual. State law or practice, or the order of any requirement. In addition, data included It would be very difficult to establish court. These statements in the note in the report does not necessarily reflect criteria that could be appropriately and reflect the requirements of IDEA. the flexibility potentially available to fairly applied in all cases. For this However, consistent with the decision the States to use sampling to collect data reason, the criteria for determining these to not include notes in the final or new data reporting requirements for instances should be left at the discretion regulations, the note should be deleted. children ages 3 through 9. of the States. It should be noted that until the The NPRM provided that a child with Changes: None. appropriation for the Assistance to deaf-blindness must be reported under States for the Education of Children the category ‘‘deaf-blindness’’ and that a Payments to the Secretary of the Interior with Disabilities program exceeds child who has more than one disability, for the Education of Indian Children $4,924,672,200, the interim formula other than deaf-blindness, must be (§ 300.715) requires that funds be distributed based reported under the category ‘‘multiple Comment: None. on the number of children served, and disabilities’’. Discussion: The reference to ‘‘this the limitations in section 611(a)(5) of The single and multi-State deaf-blind section’’ in paragraph (a) should also IDEA prior to the IDEA Amendments of projects, which are funded under include a reference to § 300.716 because 1997, which prohibit the Secretary from discretionary awards under Part D of the the earmarked funds include Indian counting more than 12 percent of Act, are not responsible for conducting children covered under both sections. children with disabilities in certain a census count of deaf-blind children. Changes: The term ‘‘this section’’ in cases, will be in effect until that time. Those projects were required to report § 300.715(a) has been revised to read The content of the report is addressed on the number of children with deaf- ‘‘this section and § 300.716.’’ in § 300.751. The reporting blindness that they serve. These Part

VerDate 03-MAR-99 18:40 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00246 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm01 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12651

300 regulations set out the requirements regulations implementing Part B of and Education except as covered under for participation of States under Part B IDEA. § 300.184(c)(2). of the Act. Discussion: Note 1 following this Annual Report of Children Served— Changes: This section has been section in the NPRM indicated that States may count children with Other Responsibilities of the State reworded to reflect in paragraph (a) data Education Agency (§ 300.754) required for the distribution of funds, disabilities in a Head Start or other including data on the numbers of preschool program operated or Comment: One commenter children with disabilities that are supported by a public agency if those recommended that the SEA should be provided special education and related children are provided special education required to sanction LEAs for providing services in the age groupings 3 through that meets State standards. All children intentionally misleading or false 5, 6 through 17, and 18 through 21. The who are counted must be enrolled in a information about the number of remainder of the section has been school or program providing special children with disabilities receiving revised to reflect the Secretary’s ability education or related services that is special education and related services to permit sampling to collect data, new operated or supported by a public within the LEA’s jurisdiction. data collection requirements in the Act, agency. However, a child with a Discussion: The IDEA Part B and to clarify that children who are not disability may also be enrolled in a Assistance to States for the Education of classified as developmentally delayed private school. All children who are Children with Disabilities program is and who have two disabilities counted must be provided with services administered primarily through SEAs. It consisting of deafness and blindness that meet State standards regardless of is in the individual State’s interest as should be reported under the category of whether they are also enrolled in a well as the national interest to ensure ‘‘deaf-blind’’. private school. that counts of children are accurate; Note 2 to this section in the NPRM requiring sanctions for LEAs that Annual Report of Children Served— indicated that where a child receives provide intentionally misleading or Certification (§ 300.752) special education from a public source false information would be unnecessary Comment: None. at no cost, but whose parents pay for the and overly prescriptive. The IDEA Discussion: The certification of an basic or regular education, the child allows States to impose sanctions may be counted. The revised § 300.753 accurate and unduplicated count of subject to the requirements of the Act. more clearly reflects the fact that children with disabilities receiving Changes: None. children with disabilities enrolled by special education and related services Comment: None. their parents in private schools are Discussion: Section 300.754(d) refers on the dates in question is critical only eligible to be counted. This is true to ‘‘reports’’ under §§ 300.750–300.753. with regard to obtaining information whether the curriculum of the school These sections refer to only one report. needed for the allocation of funds. consists of basic or regular education, or Changes: The word ‘‘reports’’ has Changes: The certification of an special education. been changed to ‘‘report’’. accurate and unduplicated count has Note 2 also indicated that the Comment: A number of commenters been limited to the data required under Department expects that there would requested that notes be deleted from the § 300.751(a), which, as revised, is only be limited situations in which regulations implementing Part B of limited to information required to make special education would be clearly IDEA. funding allocations to States. separated from regular education— Discussion: The note following this Annual Report of Children Served— generally, if speech services are the only section in the NPRM indicates that data Criteria for Counting Children special education required by the child. required in the annual report of children (§ 300.753) This expectation is not consistent with served are not to be transmitted to the the flexibility that LEAs have in Secretary in personally identifiable Comment: None. providing services to children in private form, and that States are encouraged to Discussion: Children with disabilities schools. collect these data in non-personally who are enrolled by their parents in As Note 2 indicated, a State may not identifiable form. The formats used by private schools should be able to be count Indian children on or near the Secretary for collecting data do not counted by LEAs if those children reservations and children on military provide for individual identification of receive special education or related facilities if it provides them no special children. The formats for data collection services, or both, that are provided in education. If an SEA or LEA is by States are a matter of State discretion. accordance with a services plan and responsible for serving these children, Changes: The note has been removed. meet the requirements of §§ 300.452– and does provide them special Disproportionality (§ 300.755) 300.462. The language in the NPRM education and related services, they could have been read to require that may be counted. Comment: Commenters recommended children with disabilities enrolled by If a public agency places or refers a that the regulation define what their parents in private schools be child with disabilities to a public or constitutes a significant provided all of the related services they private school for educational purposes, disproportionality based on race in the need to assist them in benefitting from parents may not be charged for any part identification, labeling, and placement special education in order for the LEAs of the child’s education. of children with disabilities, thus to count these children. Changes: The notes have been triggering the obligation to review and Changes: Section 300.753 has been removed, and language has been added revise, as appropriate, identification and revised to permit LEAs to count private to § 300.753 to clarify that, in order for placement policies, practices and school children with disabilities who a State to count children, the children procedures. Another commenter are receiving special education or must be enrolled in a school or program recommended additional language related services, or both, that meet that is operated or supported by a public requiring consultation with parent standards and are provided in agency, and that they may not count training and information centers, parent accordance with §§ 300.452–300.462. children who are served solely through and civil rights advocacy groups, and Comment: A number of commenters Federal programs, including programs others, during this process. Other requested that notes be deleted from the of the Departments of Interior, Defense, commenters suggested that data be

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00247 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12652 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations collected annually when the child count published on October 22, 1997 (62 FR in America will start school ready to is submitted, and that a requirement 55026) for the Early Intervention learn.’’ Children with developmental should be added that data be analyzed. Program for Infants and Toddlers with delays are likely to experience poor If disproportionality is found, a Disabilities. The Department solicited educational results because of a corrective action plan must be comments on proposed changes to six disability without appropriate early developed by the SEA, and such a plan regulatory provisions in the Early intervention. By addressing the effects should be reported to the Secretary and Intervention Program for Infants and of a disability or complications that to the public annually. Toddlers with Disabilities, formerly could arise if services are not provided, Another commenter was supportive of known as Part H of the Individuals with these children will have a greater the requirement in § 300.755 but noted Disabilities Education Act (IDEA). likelihood of better results, and require that, because many BIA schools are Effective July 1, 1998, Part H of IDEA less intensive or possibly no special serving American Indian children from (Part H) was relocated to Part C of IDEA services, when they are ready to enter wide catchment areas, an increasing (Part C). The proposed changes were school. The Part C Early Intervention number of children with disabilities are made to conform Part C to proposed Program helps States to address the enrolling in these schools for what may changes in Part B of IDEA. On April 14, needs of infants and toddlers with be valid reasons. The commenter 1998, the Department published disabilities and their families by recommended a requirement for review technical changes to the Part C promoting child find activities, and revision of policies by regulations to incorporate statutory implementing family-focused service representatives of the Department of the changes to Part C made by the IDEA systems, coordinating early intervention Interior who have experience in the Amendments of 1997 (63 FR 18290). A services on a statewide basis, and unique political, cultural, and notice requesting advice and providing critical services that geographical issues affecting the recommendations on Part C regulatory otherwise would not be available. As identification of these children as issues was also published on April 14, such, the program plays a major role in disabled and in need of special 1998 (63 FR 18297). Although the improving the school readiness of these education and related services. deadline for comments on Part C young children and meeting the Discussion: The Act provides that the regulatory issues was July 31, 1998, the National Education Goal of ensuring States and the Secretary of the Interior Department reopened the comment that every child enters school ready to must collect data, determine if period by publishing another notice on learn. disproportionality exists, and take August 14, 1998 (63 FR 43865–43866). Changes: None. corrective action. In order for States and In response to the Department’s the Department of the Interior to invitation in the NPRM published on General Comments determine if disproportionality exist October 22, 1997, several parties Comment: Several of the commenters they must establish criteria for submitted comments on the proposed requested that the Department issue a regulations. An analysis of the determining what constitutes significant full notice of proposed rulemaking comments and of the resulting changes disproportionality. It is expected that (NPRM) for the Part C program. in the regulations follow. Substantive the determination of disproportionality Commenters questioned why the issues are discussed under the section of will involve consideration of a wide particular regulatory provisions in the the regulations to which they pertain. range of variables peculiar to each State October 22, 1997 NPRM were singled Technical and other minor changes—’’ including income, education, health, out for revision. Many requested and suggested changes the Department cultural, and other demographic generally that the Department clarify the is not legally authorized to make under characteristics in addition to race. statutory amendments to Part C, such as the applicable statutory authority ‘‘—are Prescribing how the States should the provisions regarding natural not addressed. All Part C provisions determine disproportionality and take environments. corrective action would not reflect the amended by these regulations that were Discussion: The six provisions related varied circumstances existing in each not the subject of the NPRM are to Part C in these regulations have been State and is not consistent with amended only to conform provisions to revised in order to achieve consistency discretion afforded to States under the statutory changes to Part C made by the with parallel Part B regulations. statute. IDEA Amendments of 1997, or to It should also be noted that the conform technical provisions to changes Regarding the remainder of the Part C Department’s Office for Civil Rights also made to the Part B regulations. regulations, the Department solicited comments regarding all of the Part C looks at disproportionality in its review Goals 2000: Educate America Act of State and local activities, and that the regulations on April 14, 1998, and Office of Special Education Programs Comment: One commenter asked how extended the comment period on will monitor to ensure compliance with the Goals 2000: Educate America Act August 14, 1988. Comments received in this requirement. (Goals 2000) would be implemented for response to the October 22, 1997 NPRM The determination of infants and toddlers with disabilities, in regarding Part C regulations that were disproportionality is separate from a particular how the first goal of all not the subject of that NPRM will be determination as to whether any children in America starting school retained and considered with the corrective action is appropriate. The ready to learn would be realized for comments received pursuant to the Secretary of the Interior is expected to infants and toddlers with disabilities. April 14 and August 14, 1998, utilize knowledgeable individuals to The commenter asked if there would be solicitations. However, additional determine if corrective action is called definitions or criteria promulgated submissions from those same for in a particular instance. pursuant to Goals 2000 regarding an commenters are welcome. Changes: None. infant’s or toddler’s readiness to learn. These final regulations contain Discussion: The National Education several technical changes that were not Part C Goals are goals, not requirements; no included in the April 14, 1998 The following is an analysis of the definitions or criteria are necessary to regulatory changes. All of these changes significant issues raised by the public specify how States should make will be included in the next version of comments received on the NPRM progress towards goal one, ‘‘All children Part C regulations published in the Code

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00248 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12653 of Federal Regulations (CFR), which is period than would be appropriate for is now required to provide an revised each year. infants and toddlers. explanation of the State complaint As with the final Part B regulations Several changes to this provision are procedures to parents at the various published in this issue of the Federal in response to comments regarding the times specified in § 303.403(b)(4), as Register, these final Part C regulations corresponding provision in the Part B part of the ‘‘prior notice’’ requirement. will not contain notes. The critical regulations (§ 300.20). The general The requirements of § 303.403 regarding substantive portions of the notes will be definition of ‘‘parent’’ is amended to prior notice include communicating the incorporated into the corresponding make clear that adoptive parents have notice in the parents’ native language or regulatory provision or the applicable the same status as natural parents. In other mode of communication; discussion section in this preamble. addition, to avoid conflict with State therefore, it is unnecessary to add those Other information from the notes will be statutes, a provision is added permitting provisions to § 303.510. deleted. the use of foster parents under these Because a new paragraph (b) is added Changes: None. regulations unless State law prohibits to this section (see discussion below), foster parents from acting as parents for the language in proposed (b) from the Definition of Parent (§ 303.18) these purposes. For further explanation NPRM is moved to paragraph (a)(2) of Comment: There were a few of the changes, see the discussion this section. comments regarding the revisions to the regarding 34 CFR 300.20 in the Changes: A portion of the existing definition of parent at § 303.18. Some preamble to the final Part B regulations. note is incorporated into § 303.510(a) commenters liked the changes and some Changes: Section 303.18 has been and the note is removed. Proposed Note objected to the changes. Commenters amended to specifically include 2 is incorporated into the regulation as who objected did so primarily because adoptive parents, and to permit States in new § 303.510(b); the language in the proposed changes were perceived to certain circumstances to use foster proposed § 303.510(b) is moved to new conflict with prior OSEP opinions and parents as parents under the Act § 303.510(a)(2). In addition, the language in the proposed note following ultimately result in fewer children without amending relevant State § 303.511 regarding complaints from out having ‘‘parent’’ representation at statutes on the definition of ‘‘parent’’. of State is incorporated into meetings. Commenters also asked what The substance of the note has been § 303.510(a)(1). constitutes a ‘‘long-term parent incorporated into the regulations, and the note has been deleted. Comment: Several commenters relationship’’ for an infant or toddler. requested clarification of the provision Discussion: The changes to the Prior Notice (§ 303.403) regarding compensatory services in Note definition of parent under Part C are to Discussion: No comments were 2 to proposed § 303.510. Compensatory clarify that the definition is an inclusive received regarding proposed services are also referenced in proposed one and to conform Part C to Part B for § 303.403(b)(4), and it is included in § 303.511(c). One commenter stated that consistency and continuity purposes. these final regulations. However, given compensatory services are not The changes should result in more, the comments regarding the parallel appropriate for infants and toddlers rather than fewer, children having section under Part B, and the fact that receiving services under Part C; services parental representation, as the Part C does not have a separate are already year-round, and because the regulation clarifies that foster parents procedural safeguards notice, frequency and intensity of services are may, in appropriate circumstances, § 303.403(b)(3) is changed to make clear individually tailored to the child’s unless prohibited by State law, serve as that the notice given under this section needs in the IFSP, supplementing those parents. Under these regulations, the must contain all procedural safeguards services would not be appropriate. This term ‘‘parent’’ is defined to include under Part C, including the new commenter noted, however, that persons acting in the place of a parent, mediation procedures in § 303.419. families who procure services at their such as a grandparent or stepparent Changes: Section 303.403(b)(3) is own expense because an IFSP was not with whom the child lives, as well as amended to clarify that the notice must implemented in a timely manner should persons who are legally responsible for inform parents about all procedural be able to receive reimbursement. a child’s welfare, and, at the discretion safeguards available under §§ 303.401– Another commenter stated that of the State, a foster parent who meets 303.460. additional public discussion is needed the requirements in paragraph (b) of this before finalizing this provision section. Adopting Complaint Procedures regarding compensatory services. The With respect to the meaning of ‘‘long- (§ 303.510) commenter raised questions concerning term parental relationship,’’ this term Comment: One commenter requested how compensatory services would be was included to ensure that when a that the Department clarify how funded and provided by a lead agency child is in foster care, decisions frequently States are required to before a child turns three years old, how regarding services are made by the foster disseminate their State complaint such services would be funded and parents only if they have had, or will procedures in proposed § 303.510(b); provided after the child turns three, and have, a parental relationship that is on- the commenter also asked that the how such post-Part C services would be going rather than temporary. The goal is requirement include provisions for integrated with the child’s special that decisions regarding services will be limited-English speakers and non- education services. Another commenter made only by those who have or will readers. requested the Department’s ‘‘vision’’ for have a substantive understanding of the Discussion: It is unnecessary to the proposed application of this child’s needs. Thus, for example, a specify a frequency for dissemination of regulation. parental relationship would be State complaint procedures; States have Discussion: The note reflected what considered ‘‘long-term’’ if (1) at the time the responsibility to ensure that their has always been the case ‘‘—that lead the relationship is created, it is intended publicly-disseminated State complaint agencies have the authority to order to be a long-term arrangement, or (2) the materials are distributed to parents, as remedies in appropriate circumstances relationship has existed for a relatively well as to the other required entities, for a violation of Part C in resolving long period of time. For older children, and to ensure that the materials are kept complaints under the procedures in States could require a more lengthy time up to date. In addition, the lead agency §§ 303.510–303.512. However,

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00249 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12654 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations consistent with the decision to remove appropriate services, in place of regulations. If a State law provided a notes from the Part B regulations, and to proposed Note 2. Proposed paragraph more generous timeline for filing emphasize the importance of lead (b) has been moved to new complaints, the State could certainly agency action to resolve complaints in § 303.510(a)(2). use that timeline; it could, in the a way that provides individual relief alternative, amend its State law to be as Filing a Complaint (§ 303.511) when appropriate and addresses restrictive, but not more restrictive, than systemically the provision of Comment: Two commenters objected these Federal regulations. appropriate services, a provision is to the one-year time limit for filing a Regarding the issue of when it is added to this section. The provision complaint in proposed § 303.511(c). appropriate for an organization, rather clarifies that if the lead agency has They stated that parents are often not than an individual, to file a complaint, found a failure to provide appropriate knowledgeable about their rights at their the State complaint procedures broadly services to an infant or toddler with a first entrance into a complex system, permit any organization to file a disability through a complaint, the and that violations may not be apparent complaint alleging that the State is resolution must address both how to until after the child exits the system. violating IDEA, in order to permit remediate the denial of services, and The commenters stated that the one-year entities, as well as individuals, that how to provide appropriate services for limit may also conflict with existing become aware of violations to raise all infants and toddlers with disabilities State laws governing administrative them. With regard to the statement in in the State and in the future. While proceedings. These commenters also the note that the lead agency must recognizing that compensatory services, questioned when it would be resolve complaints even if received from in the sense used under Part B, may be appropriate for an organization to file a an individual or organization outside of inappropriate for an infant or toddler in complaint, and asked why the proposed the State, the lead agency is responsible many instances, it should not be note states that lead agencies must for ensuring compliance with Part C. A precluded where it is an appropriate resolve complaints filed by entities from complaint about implementation of the corrective action as determined by the another State. Act filed by an organization or lead agency based on the individual Discussion: The time limits in individual outside of the State is an circumstances. Lead agencies retain the proposed § 303.511(c) were added in additional means of bringing authority, responsibility, and flexibility recognition that at some point the issues compliance issues to the State’s to construct appropriate remedies in in a complaint are no longer reasonably attention. To be consistent with the individual cases in order to obtain the susceptible to resolution. However, such decision to remove all notes from the results needed for the child and family. a time limit should include an Part B regulations, and to make clear Possible remedies may include exception for continuing violations; this that complaints from out-of-State reimbursement of sums spent by a would include a violation for a specific organizations or individuals must also parent, services—compensatory or child, e.g., one that began when an be resolved, that concept is integrated otherwise, or other appropriate infant was 4 months old and still into § 303.510(a)(1). corrective action. continues at age two, as well as Changes: The language in proposed Regarding the issue of a complaint violations that continue on a systemic § 303.511(c) has been moved to filed after a child turns three and is no basis and affect other children. The paragraph (b) and changed to describe longer eligible for Part C services, if regulation also includes a three-year more accurately the remedies that could parents have a complaint about the time limit for cases in which a parent be requested under the three-year services received or not received by requests reimbursement or corrective limitation for State complaints. The note their child while an infant or toddler, action. As evidenced by the comments following § 303.511 regarding those parents would properly file the on the issue of compensatory services complaints filed by organizations or complaint with the lead agency that had under Part C (see discussion regarding individuals from another State has been responsibility for the child during that § 303.510 above), compensatory services deleted, and the substance of the note time period, even if the child has ‘‘aged may not be an appropriate remedy in has been moved to § 303.510(a)(1). out’’ of the Part C program at age three. some cases. Therefore, the language Minimum State Complaint Procedures; That lead agency has the responsibility regarding the three-year limit in these Timelines (§ 303.512) to resolve and, as appropriate, regulations should be changed to investigate the complaint, and award describe more accurately the remedies Comment: One commenter asked appropriate corrective action, which that may be requested, such as a whether eliminating the right to request may need to be designed by working parent’s request for reimbursement for Secretarial review would eliminate all with the SEA if the child is Part B- amounts spent to provide services in the potential appeals of a State’s decision. eligible, or by working with other IFSP that were not provided by the lead The commenter requested that a note be appropriate service providers if the agency. added to reference other procedures still child is not Part B-eligible. These As noted above in the response to available if the complainant is not regulations do not prevent parents from comments on § 303.510, these satisfied with a State’s decision. filing a complaint with the lead agency regulations do not prohibit individuals Discussion: If a complainant who after the child leaves the Part C from filing a complaint with the lead wishes to contest a lead agency’s program. In addition, if the alleged agency after the child has left the Part decision on a State complaint is a violation is systemic, corrective action C system, and require, within the parent, he or she may request a due would be required in order to ensure timeframes noted, that the State resolve process hearing under § 303.420 that a violation does not continue for the complaint. In addition, States are concerning a child’s identification, other infants and toddlers. However, to free to accept and resolve complaints evaluation, or placement, or the prevent undue burden on lead agencies regarding alleged violations that provision of appropriate early from very old cases, § 303.511(b) occurred outside these timelines, just as intervention services to the child and contains time limitations on complaints. they are free to add additional the child’s family. In addition, States Changes: A new paragraph (b) has protections in other areas that are not must make mediation under § 303.419 been added to § 303.510 to address how inconsistent with the requirements of available, at a minimum, when a parent a lead agency remedies a denial of the Act and its implementing requests a due process hearing. States

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00250 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12655 may provide for mediation at an earlier resulting hardship to them when state that they will not cover services if stage, thereby allowing for informal required to use private insurance to pay deductibles and co-payments are paid dispute resolution before or after the for services. for the family instead of by the family. State complaint process, preventing the Many commenters opposed the Commenters also stated that some State need for a due process hearing. proposed changes. Regarding the use of statutes require that private insurance is However, mediation may not be used to private insurance, many stated that the utilized prior to State funds and the deny or delay the parents’ right to due policies in proposed § 303.520(d) and proposed § 303.520 undermines these process. The previous existence of the Notes 1 and 2 contradict the ‘‘payor of statutes. option to request Secretarial review was last resort’’ concept underlying Part C. Regarding public insurance, not a substitute for these other Many commenters referred to the policy commenters stated that parental consent procedural rights for parents. It is not in § 303.527 that Part C Federal funds should not be required for access to necessary to add a note describing these are to supplement existing sources of public insurance, e.g., Medicaid, if the other procedural safeguards in funds, not provide full support, for early child is eligible for the public insurance. § 303.512, as they are adequately intervention. Commenters stated that The commenters also argued that States described elsewhere in these prior to Part C, private insurance would should be given the flexibility to require regulations. have been the payor of first resort for application for public health insurance The substance of the notes following many early intervention services, and as a condition for receiving early this section is incorporated into Medicaid the secondary source of intervention services, not only to enable § 303.512. The language of proposed payment. Part C access to other sources of Note 1 references a complaint that is Commenters also stressed that, funding, but also to ensure that children also the subject of a due process because FAPE does not apply to Part C, have access to health and medical care. hearing, but does not discuss the basing § 303.520(d) on the Notice of Those commenting against proposed situation of a complaint that also Interpretation published in 1980 § 303.520(e) and Note 3, regarding becomes the subject of a mediation regarding Part B, six years prior to the proceeds from insurance, stated that proceeding. Although the IDEA passage of Part C, is invalid. Further, in such a rule potentially precludes Amendments of 1997 encourage the use emphasizing the differences in Part B putting dollars back into an already of mediation as a dispute resolution and Part C policy, commenters noted under funded program. Commenters tool, a party’s mediation request should that under Part B, services are to be stated that under 34 CFR 80.25, States not serve as an excuse for a State to provided at no cost to the parents, should be required to return income delay the State complaint resolution whereas under Part C parents may be received from public and private timelines. Therefore, a mediation required to pay fees for services. insurance payments to the Part C proceeding should not in and of itself be Commenters stated that it is program. Further, if the Department considered an ‘‘exceptional contradictory to allow systems of does not require such reinvestment, circumstance’’ under § 303.512(b) so as payment, but prohibit the use of private commenters requested that it at least to extend the 60-day time limit for insurance if there is a financial cost to remain silent on the issue rather than resolution of complaints, unless the families. A few commenters also stated risk giving States encouragement for parties agree to such an extension. they believed the Department did not using insurance reimbursements Changes: Paragraphs (b) and (c) have adequately determine whether or not without any restrictions. been combined into a new paragraph there is a cost to parents in requiring the Discussion: As the foregoing (b). A new paragraph (c) has been added use of private insurance, and that a cost- comments note, there are many to clarify that if an issue in a complaint benefit analysis was not done. ramifications to a proposed regulation is the subject of a due process hearing, Commenters were also very regarding the use of private and public that issue (but not those outside of the concerned about the impact to Part C insurance under Part C. Therefore, the due process proceeding) would be set programs nationwide if private policy in proposed § 303.520(d) will not aside until the conclusion of the due insurance is more difficult to access; be finalized until more thorough process hearing, and that the hearing some stated that proposed § 303.520(d) examination of the issues can be done decision regarding an issue in a due could cause States to eliminate their through the process initiated by the process hearing would be binding in a infant and toddler programs entirely. April 14 and August 14, 1998 State complaint resolution; however, a Commenters stated that because Federal solicitations for comments, and in light public agency’s failure to implement a programs like Medicaid and Title V of the specific Part C statutory language due process decision would have to be require that private insurance must be and framework. resolved by the lead agency. The notes billed first for services covered in whole However, with respect to the issue of following this section have been or in part by such insurance, if private reimbursements in proposed removed, and their substance insurance is not accessible, Medicaid or § 303.520(e) and Note 3, the reasons incorporated into § 303.512. Title V will not be accessible. Some underlying the changes made to the commenters suggested that the use of corresponding § 300.142(f) in Part B Policies Related to Payment for Services private insurance under Part C be provide support for the same changes in (§ 303.520) treated in the same manner as it is Part C. This section clarifies that if a Comment: There were many under Title V and Medicaid and in this public agency receives funds from comments regarding the use of private way remain in compliance with the public or private insurance for services and public insurance under Part C. A mandate of § 303.527. under these regulations, the public few commenters supported proposed In addition, some commenters stated agency is not required to return those § 303.520(d) and (e), as well as that a policy that allows parents to deny funds to the Department or to dedicate corresponding notes. Supporting the access to private insurance, thereby those funds for use in the Part C provision in proposed § 303.520(d) on requiring the expenditure of State and program, which is how program income requiring families to use private Federal funds, has caused private must be used, although a public agency insurance only if there are no costs, insurance companies to deny payment retains the option of using those funds parents of children with disabilities for services if Part C potentially covers in this program if it chooses to do so. described the financial costs and the service. Insurance policies also often Reimbursements are similar to refunds,

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00251 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12656 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations credits, and discounts that are the proposed regulations. Very few IDEA prior to the enactment of the IDEA specifically excluded from program commenters specifically addressed the Amendments of 1997. Based on this analysis, income in 34 CFR 80.25(a). The Department’s analysis of the benefits and the Secretary has concluded that the expenditure that is reimbursed is costs of the statutory and non-statutory statutory changes included in this regulation changes incorporated into the proposed will not, on net, impose significant costs in considered to be an expenditure of regulations. any one year, and may result in savings to funds from the source that provides the One commenter stated that the analysis of State and local educational agencies. An reimbursement. Nothing in IDEA, the impact was inadequate and that the cost analysis of specific provisions follows: however, prohibits States from to school systems did not appear to be taken reinvesting insurance reimbursements seriously. However, this commenter did not Participation in Assessments back into the Part C program, and this provide comments on the cost assumptions Section 300.138 incorporates statutory regulatory provision should not be or analysis of specific items in the NPRM. requirements relating to the inclusion of viewed as discouraging such practice. One commenter questioned the discussion children with disabilities in general State and in the NPRM that indicated a possible district-wide assessments and the conduct of Reinvestment of insurance reduction of personnel needed to conduct alternate assessments for children who reimbursements in the Part C program is evaluations by 25 to 75 percent, and cannot be appropriately included in general undeniably a valuable method of suggested that additional meetings would assessments. helping fund the program; however, to probably be required for 18 to 24 months Although children with disabilities have avoid confusion, it is necessary to until the appropriate assessments can be not been routinely included in State and clarify by regulation that no current conducted at annual reviews and that district-wide assessments, the requirement to Federal law requires such reinvestment. additional personnel would be needed. include children with disabilities in In addition, proposed paragraph (e) Another commenter agreed that the changes assessment programs in which they can be has been revised to clarify that funds related to the conduct of the triennial appropriately included, with or without reevaluation may reduce some paperwork, accommodations, does not constitute a expended by a public agency from but noted that savings would not be realized change in Federal law. Because this statutory reimbursements of Federal funds will immediately for individual children because change is a clarification of, not a change in, not be considered State or local funds of the need for baseline data. One commenter the law, no cost impact is assigned to this for purposes of § 303.124. If Federal stated that it has taken the evaluation team requirement, which is incorporated in reimbursements were considered State one hour just to decide whether there is a § 300.138(a) requiring the participation of and local funds for purposes of the need to gather additional information. children with disabilities in general supplanting prohibition in § 303.124 of A few commenters provided specific assessments. these regulations, States would information about the cost and time involved However, States were not previously to comply with some of the requirements that experience an artificial increase in their required to conduct alternate assessments for were analyzed in the NPRM. For example, children who could not participate in the base year amounts and would then be one commenter pointed out that it would general assessments. The statutory required to maintain a higher, cost his district $18,000 to provide for requirement to develop and conduct alternate overstated level of fiscal effort in the substitute teachers so regular education assessments beginning July 1, 2000, succeeding fiscal year. teachers could attend 900 IEP meetings therefore, imposes a new cost for States and Changes: Proposed § 303.520(d), and lasting one to two hours—or $20 per meeting. districts. Notes 1 and 2, are removed; proposed Another commenter stated that the cost of The impact of this change will depend on § 303.520(e) is redesignated as providing substitute teachers would be an the extent to which States and districts § 303.520(d) with changes to conform to enormous burden for school districts, noting administer general assessments, the number that the average IEP meeting takes 1.5 to 2 of children who cannot appropriately § 300.142(f); and Note 3 is incorporated hours. into the text of § 303.520(d). participate in those assessments, the cost of The Department also received a few developing and administering alternate (Note: This attachment will not be codified comments on the cost of providing education assessments, and the extent to which in the Code of Federal Regulations) to children who have been suspended or children with disabilities are already expelled. One commenter said that the Attachment 2—Executive Order 12866 participating in alternate assessments. projections do not take into account the The analysis of the impact of this These regulations have been reviewed in expense of providing homebound services, requirement assumes that alternate tests accordance with Executive Order 12866. alternative placements or access to the would be administered to children with Under the terms of the order the Secretary general curriculum. Another commenter disabilities on roughly the same schedule as has assessed the potential costs and benefits agreed that the estimates of $29–$70 were too general assessments. This schedule will vary of this regulatory action. low and pointed out that an out-of-district considerably from State to State and within day placement in Vermont runs about Summary of Public Comments States, depending on their assessment policy. $20,000–$25,000 per school year. In most States, this kind of testing does not Many commenters expressed concern All of these comments were considered in about the costs and burden of complying begin before the third grade. In many States conducting the analysis of the benefits and and districts, general assessments are not with requirements incorporated into the costs of the final regulations. All of the Assistance to States for the Education of administered to children in all grades, but Department’s estimates and the assumptions rather at key transition points (for example, Children with Disabilities, Notice of on which they are based are described below. Proposed Rulemaking (NPRM). Commenters in grades 4, 8, and 11). complained about the cost of implementing Summary of Potential Benefits and Costs The extent to which States and districts will need to provide for alternate assessments various statutory requirements incorporated Benefits and Costs of Statutory Changes into the NPRM and identified a variety of will also vary depending on how the general requirements in the NPRM not required by For the information of readers, the assessments are structured. Based on the the statute that would increase following is an analysis of the costs and experience of States that have implemented administrative costs for school districts. benefits of the most significant statutory alternate assessments for children with Some commenters talked about the need to changes made by IDEA Amendments of 1997 disabilities, it is estimated that about one to employ additional staff to comply with new that are incorporated into the Assistance to two percent of the children in any age cohort requirements and others talked about the States for the Education of Children with will be taking alternate assessments. additional paperwork required. Some Disabilities regulations. In conducting this Based on this information, it is estimated commenters expressed concern about the analysis, the Department examined the extent that about 18 to 36 million of the children effect of the requirements on the ability of to which changes made by the IDEA who are expected to be enrolled in public schools to provide instruction to nondisabled Amendments of 1997 added to or reduced schools in school year 2000–2001 will be children and the difficulty teachers and the costs for school districts and others in candidates for general assessments. Of these, administrators would have in implementing relation to the costs of implementing the about 200,000 to 700,000 will be children

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00252 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12657 with disabilities who may require alternate Clarifying that the team must consider a developing and describing short-term assessments. number of special factors to the extent they objectives in each child’s IEP. While it would The costs of developing and administering are applicable to the individual child. The be difficult to estimate the impact of this these assessments are also difficult to gauge. statutory changes that are incorporated in statutory change, contained in In its report Educating One and All, the § 300.346 do not impose a new burden on § 300.347(a)(2), it clearly affords schools National Research Council states that the school districts because the factors that are greater flexibility and an opportunity to estimated costs of performance-based listed should have been considered, as reduce paperwork in those cases in which assessments programs range from less than appropriate, under the IDEA before the the team has previously included $2 per child to over $100 per student tested. enactment of IDEA Amendments of 1997. unnecessarily detailed curriculum objectives The State of Maryland has reported start-up These include: behavioral interventions for a in the IEP document. This change potentially costs of $191 per child for testing a child child whose behavior impedes learning, reduces the burden in preparing IEPs for 6 with a disability and $31 per child for the language needs for a child with limited million children each year. ongoing costs of administering an alternate English proficiency, Braille for a blind or Prior to the enactment of the IDEA assessment. visually impaired child, the communication Amendments of 1997, IDEA required the The cost impact of requiring alternate needs of the child, and the child’s need for participation of the ‘‘child’s teacher,’’ assessments will be reduced to the extent assistive technology. typically read as the child’s special education that children with disabilities are already Strengthening the focus of the IEP on teacher, but it did not explicitly require a participating in alternate assessments. Many access to the general curriculum in regular education teacher. The IDEA children with disabilities are already being statements about the child’s levels of Amendments of 1997, incorporated in assessed outside the regular assessment performance and services to be provided. The § 300.344 (a)(2) and (a)(3) and § 300.346(d) of program in order to determine their progress statutory changes that are incorporated in the final regulations, require the participation in meeting the objectives in their IEPs. In § 300.347 relating to the general curriculum of the child’s special education teacher and many cases, these assessments might be should not be burdensome because the a regular education teacher if the child is or adequate to meet the new statutory changes merely refocus the content of may be participating in the regular education requirement. statements that were already required to be classroom, while acknowledging that a Based on all of this information, the cost included in the IEP on enabling the child to regular education teacher participates in impact of this statutory change is not likely be involved in and progress in the general developing, reviewing, and revising the to be significant, and will be justified by the curriculum. child’s IEP ‘‘to the extent appropriate.’’ benefits of including all children in Requiring an explanation of the extent to The impact of this change will be accountability systems. which a child will not be participating with determined by the number of children with Incidental Benefits nondisabled children. This statutory disabilities who are or who may be requirement, which is incorporated in participating in the regular classroom in a The change made by section 613(a)(4) of § 300.347(a)(4), does not impose a burden given year, the number and length of IEP the Individuals with Disabilities Education because it replaces the requirement for a meetings, the extent of the regular education Act (IDEA), incorporated in § 300.235, statement of the extent to which the child teacher’s participation in them, the generates savings by reducing the time that will be able to participate in regular opportunity cost of the regular education would have been spent by special education educational programs. teacher’s participation, and the extent to personnel on maintaining records on how Requiring the IEP to include a statement of which regular education teachers are already their time is allocated in regular classrooms any needed modifications to enable a child attending IEP meetings. among children with and without to participate in an assessment, and, in cases State-reported data for school year 1994– disabilities. in which a child will not be participating in 1995 indicates that about 3.9 million To calculate the impact of this change, one a State or district-wide assessment, to children with disabilities aged 3 through 21 needs to estimate the number of special include a statement regarding why the spend at least 40 percent of their day in a education personnel who will be providing assessment is not appropriate and how the regular classroom (children reported as services to children with and without disabilities in regular classrooms and the child will be assessed. This statutory placed in regular classes and resource amount and value of time that would have requirement, which is incorporated in rooms). The participation of the regular been required to document their allocation of § 300.347(a)(5), will require some additional education teacher would be required for all time between disabled and nondisabled information to be included in the IEPs for of these children since these children are children. some children, but will not impose a spending at least part of their day in the Based on State-reported data on placement, significant burden on schools. Each year an regular classroom. it appears that about 4.4 million children will estimated 1.6 to 3.2 million children with State data also show that an additional 1.2 spend part of their day in a regular classroom disabilities are in grades in which schools are million children were served in separate this school year. States reported employing administering State or district-wide classrooms. A regular education teacher’s about 404,000 teachers and related services assessments. Prior to the enactment of the participation will clearly be required for personnel in total for school year 1995–96. IDEA Amendments of 1997, Federal law those children in separate classes who are The statutory change will eliminate required the participation of children with spending part of their school day in regular unnecessary paperwork for those special disabilities in general assessments with classes (less than 40 percent of their day). education personnel who have been working accommodations, as needed. Data indicate Other children may be participating with in the regular classroom and documenting that about 50 percent of children with nondisabled children in some activities in their allocation of time, and will encourage disabilities have been participating in State the same building. While a child’s individual the provision of special education services in and local assessments. Many of these needs and prospects will determine whether the regular classroom—a change that will children are receiving needed modifications a regular education teacher would need to benefit children with disabilities. and their IEPs currently include information attend a child’s IEP meeting in those cases, about those modifications. The requirement some proportion of these children are Individualized Education Programs for statements in the IEP about how children children for whom participation in regular The final regulations incorporate a number will be assessed will affect IEPs for children classrooms is a possibility, therefore of statutory changes in section 614(d) that who cannot participate in the general requiring the participation of a regular relate to the IEP process and the content of assessments and who are entitled to education teacher. the IEP. With the exception of one participate in alternate assessments Although the prior statute did not require requirement (the requirement to include a (estimated to be 200,000 to 700,000 children, the participation of a regular education regular education teacher on the IEP team), beginning in school year 2000–2001). teacher, it is not uncommon for States or it has been determined that, on balance, these Allowing the IEP team to establish school districts to require a child’s regular changes will not increase the cost of benchmarks rather than short-term objectives education teacher to attend IEP meetings. developing IEPs. Moreover, all the changes in each child’s IEP. There is considerable Based on all of this information, it is will produce significant benefits for children variation across States, districts, schools, and estimated that the participation of a regular and families. Key changes include: children in the amount of time spent on education teacher may be required in an

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00253 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12658 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations additional 3.9 to 5.3 million IEP meetings in students with disabilities—$7,184 per child which parents and others were informed of the next school year. for school year 1998–1999—the costs of its availability and possible benefits in While the opportunity costs of including a providing FAPE to these children would be resolving their complaints and the extent to regular education teacher in these meetings significant. which the mediator was perceived as a will be significant because of the number of Under the statutory change, LEAs schools neutral third-party. The changes made by the meetings involved, these costs will be more would still be required to use a portion of the IDEA Amendments of 1997 are expected to than justified by the benefits to be realized Federal funds provided under Part B of IDEA eliminate some of the differences in State by teachers, schools, children, and families. to provide services to parentally-placed mediation systems that have accounted for its Involving the regular education teacher in the children—an amount proportionate to the variable use and effectiveness. development of the IEP will not only provide percentage of the total population of children The benefits of making mediation more the regular education teacher with needed with disabilities who are parentally-placed— widely available are expected to be information about the child’s disability, and to carry out required child find and substantial, especially in relation to the costs. performance, and educational needs, but will evaluation activities. Therefore, in estimating States with well-established mediation help ensure that a child receives the supports the impact of this statutory change, one systems conduct considerably fewer due the child needs in the regular classroom, needs to subtract the cost of these public process hearings. For example, in California, including services and modifications that school obligations from the total projected hearings were held in only 5 and 7 percent will enable the child to progress in the savings. One would also need to take into of the cases in which they were requested in general curriculum. account the fact that some of the costs that 1994 and 1995, respectively. The average would have been covered by the school mediation appears to cost between $350 and Parentally-Placed Students in Private districts will simply shift to other sources $1000, while a due process hearing can cost Schools such as the private schools or the families of tens of thousands of dollars. Based on the This statutory change, which is the children. However, even if one discounts experience that many different States have incorporated in § 300.453, would require the amount of projected savings to the public had with mediation, it is estimated that school districts to spend a proportionate sector by 50 percent to take into possible hundreds of additional complaints will be amount of the funds received under Part B cost-shifting, the total net savings attributable resolved through mediation. The benefits to school districts and benefits to families are of IDEA on services to children with to the change in the law for these 19 States expected to be substantial. disabilities who are enrolled by their parents is expected to be very significant. in private elementary and secondary schools. Discipline The change does not have an impact on Mediation The final regulations (§§ 300.121, 300.122, most States because the statute does not Section 300.506 reflects the new statutory 300.520, and 300.521) incorporate a number represent a change in the Department’s provisions in section 615(e) of IDEA, which of significant changes to IDEA that relate to interpretation of the law as it was in effect require States to establish and implement the procedures for disciplining children with prior to the enactment of the IDEA mediation procedures that would make disabilities. Amendments of 1997. However, in four mediation available to the parties whenever Some of the key changes contained in Federal circuits, the courts have concluded a due process hearing is requested. IDEA section 615(k) afford school districts that, without the statutory change, school specifies how mediation is to be conducted. additional tools for responding to serious districts generally were responsible for The impact of this change will depend on behavioral problems, and in that regard, do paying for the total costs of special education the following factors: the number of due not impose any burdens on schools or and related services needed by students with process hearings that will be requested, the districts. disabilities who have been parentally-placed extent to which the parties to those hearings The statutory change reflected in in private schools. Therefore, this change will agree to participate in mediation, the § 300.520(a)(2) would give school officials does produce potential savings for school cost of mediation, the extent to which the authority to remove children who districts in those 19 States affected by these mediation would have been used in the engaged in misconduct involving weapons or court decisions. The States are: Arkansas, absence of this requirement to resolve illegal drugs. Under prior law, school Colorado, Connecticut, Iowa, Kansas, complaints, and the extent to which officials had the authority to remove children Louisiana, Minnesota, Mississippi, Missouri, mediation obviates the need for a due process who brought guns, but could not remove New Mexico, Nebraska, New York, North hearing. children who engaged in misconduct Dakota, Oklahoma, South Dakota, Texas, Data for previous years suggests one can involving other weapons or illegal drugs over Utah, Vermont, and Wyoming. expect about one complaint for every 1000 the objection of their parents unless they To determine the impact of the change, one children served or about 6,000 requests for prevailed in a due process proceeding or needs to estimate the number of parentally- due process hearings during this school year. obtained a temporary restraining order from placed children with disabilities that LEAs in This projection probably overstates the a court. The statutory change reflected in these States would have been required to number of complaints because it does not § 300.521 would give school officials the serve, but for this change. Using private take into account the effect of the IDEA option of seeking relief from a hearing officer school enrollment data for school year 1995– Amendments of 1997, which, on balance, can rather than a court in the case of a child the 1996 and projected growth rates, it is be expected to result in better school is seeking to remove because the child estimated that approximately 1.5 million implementation of the law and higher poses a risk of injury to the child or others. students will be enrolled in private schools parental satisfaction with the quality of In both cases, the child would continue to in these 19 States in this school year. services and compliance with IDEA. receive services in an alternative educational There is no reliable data on the number of Many of these complaints would have been setting that is required to meet certain children with disabilities who are parentally- resolved through mediation even without the standards. It is difficult to assess the impact placed in private schools. However, if one statutory change. Over 39 States had of either of these statutory changes on assumes that children with disabilities are mediation systems in place prior to the schools because there is virtually no found in private schools in the same enactment of the IDEA Amendments of 1997. information available on the extent to which proportion as they are found in public Data for 1992 indicate that, on average, States parents disagree with districts that propose to schools in these States, or at least in the same with mediation systems held mediations in remove these children. This new authority proportion that children with speech about 60 percent of the cases in which would only be used in those cases. impairments and learning disabilities are hearings were requested. Nevertheless, the Nevertheless, the benefits of this authority found in public schools, one would estimate number of mediations is expected to increase appear to be substantial insofar as the that there are between 80,000 and 120,000 even in States that already have mediation changes help schools provide for a safe children with disabilities who are parentally- systems. Although most States report using environment for all children, while ensuring placed in private schools. mediation as a method of resolving disputes, that any children with disabilities who are If one assumes that, on average, the cost of there have been considerable differences in moved to an alternative setting continue to providing a free appropriate education to its implementation and use. In general, the receive the services they need. these students would be approximately equal extent to which mediation has been used in The statutory change reflected in to the average excess costs for educating States probably depends on the extent to § 300.520(b) will require school officials to

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00254 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12659 convene the IEP team in certain cases in able to achieve the same economies of scale with testing. It is estimated that the which removal is contemplated to develop an in providing services to small numbers of elimination of unnecessary testing could assessment plan and behavioral interventions children in alternative settings as they do in reduce the opportunity costs for the (or that the IEP team members review the serving children generally. personnel involved in conducting the child’s behavioral intervention plan if there While this statutory change will have a triennial evaluation by as much as 25 to 75 is one). The impact of this requirement is cost impact on the States in the 4th and 7th percent. While there is no national data on discussed below as part of the discussion of Circuits, the costs for these States will be the average cost of conducting a triennial non-statutory changes. justified by the benefits of continuing evaluation under the current regulations, it is The requirement in section 612(a)(1)(A), educational services for children who are the assumed that a triennial evaluation would incorporated in § 300.121, that all children least likely to succeed without the help they require the participation of several aged 3 through 21 must have made available need. professionals for several hours and cost as to them a free appropriate public education, The statutory change reflected in § 300.122 much as $1000. including children who have been suspended could generate potential savings for all States These savings would be somewhat or expelled from school, does not represent by removing the obligation to provide mitigated by the increased costs associated a change in the law as the law was educational services to individuals 18 years with the new statutory requirement to obtain interpreted by the Department prior to the old or older who were incarcerated in adult parental consent before conducting a enactment of the IDEA Amendments of 1997. prisons and who were not previously reevaluation. Under the final regulations, It clarifies the Department’s long-standing identified as disabled. No information is parental consent would be required if a test position that the IDEA requires the available on the number of prisoners with is conducted as part of a reevaluation, for continuation of special education and related disabilities who were not previously example, or when any assessment instrument services even to children who have been identified. is administered as part of a reevaluation. expelled from school for conduct that has If one assumes, for purposes of this been determined not to be a manifestation of Triennial Evaluation analysis, that savings are achievable in their disability. The previously existing regulations roughly half of the triennial evaluations that However, this statutory change does required a school district to conduct an will be conducted and that elimination of represent a change in the law in two circuits evaluation of each child served under IDEA unnecessary testing could reduce personnel in which Federal Circuit courts disagreed every three years to determine, among other costs by at least 25 percent, one would with the Department’s interpretation of the things, whether the child is still eligible for project substantial savings for LEAs that are law—the 4th and 7th Circuits. The affected special education. The IDEA Amendments of attributable to this change. States are: Virginia, Maryland, North 1997 change this requirement to reduce Benefits and Costs of Proposed Non-statutory Carolina, South Carolina, West Virginia, unnecessary testing and therefore reduce Regulatory Provisions Illinois, Indiana, and Wisconsin. costs. Specifically, section 614(c) of IDEA, The following is an analysis of the benefits To assess the impact of this change, one incorporated in § 300.533, allows the and costs of the nonstatutory final regulatory needs to estimate the extent to which evaluation team to dispense with additional provisions that includes consideration of the students would have been excluded from tests to determine the child’s continued special effects these changes may have for education, but for this change in the statute, eligibility if the team concludes this small entities. and the cost of providing the required information is not needed. However, these The final regulations primarily affect State services to these students during the period tests must be conducted if the parents so and local educational agencies, which are they are expected to be excluded from their request. responsible for carrying out the requirements regular school due to a long-term suspension The savings resulting from this change will of Part B of IDEA as a condition of receiving or expulsion. depend on the following factors: the number Federal financial assistance under IDEA. There is a paucity of data available on of children for whom an evaluation is Some of the proposed changes also affect disciplinary actions, and very little for the conducted each year to comply with the children attending private schools and States in the 4th and 7th Circuits. Using data requirement for a triennial evaluation, the consequently indirectly affect private collected by the Office for Civil Rights for cost of the evaluation, and an estimate of the schools. school year 1994, it is estimated that extent to which testing will be reduced For purposes of this analysis as it relates approximately 60,000 students with because it is determined by the IEP team to to small entities, the Secretary has focused on disabilities aged 6 through 21 will be be unnecessary and is not requested by the local educational agencies because these suspended during this school year in the parents. regulations most directly affect local school affected States. But to determine the impact Based on an analysis of State-reported data, districts. The analysis uses a definition of of the prohibition on ceasing services in it is estimated that approximately 1.5 million small school district developed by the these States, one needs to know the number children will be eligible for triennial National Center for Education Statistics for of suspensions each student received and evaluations in school year 1998–1999 or purposes of its recent publication, their duration—information that is not roughly 25 percent of the children to be ‘‘Characteristics of Small and Rural School provided by OCR data. However, more served. Districts.’’ In that publication, NCES defines detailed data compiled by a few States would The IDEA Amendments of 1997 make it a small district as ‘‘one having fewer students suggest that a relatively small percentage of clear that districts no longer need to conduct in membership than the sum of (a) 25 students with disabilities who are suspended testing to determine whether a child still has students per grade in the elementary grades (no more than about 15 percent) receive a disability, if the evaluation team it offers (usually K–8) and (b) 100 students suspensions of greater than 10 days at a time determines this information is not needed per grade in the secondary grades it offers and a much smaller number of students are and the parent agrees. However, while the (usually 9–12)’’. Using this definition, expelled. regulation permits the team to dispense with approximately 34 percent of the Nation’s Little information is available on the cost unneeded testing to determine whether the school districts would be considered small of providing services in an alternative setting child still has a disability, the team still has and serve about 2.5 percent of the Nation’s for a student who has been suspended an obligation to meet to review any existing students. NCES reports that approximately 12 temporarily or expelled from school. evaluation data and to identify what percent of these students have IEPs. However, it is reasonable to assume that the additional data are needed to determine Both small and large districts will average cost per day of providing services in whether the child is still eligible for special experience economic impacts from this rule. an alternative setting probably would be no education and related services, the present Little data are available that would permit a less than the average daily total costs of levels of performance of the child, and separate analysis of how the changes affect serving children with disabilities, which is whether any modifications in the services are small districts in particular. about $75 per day. Although costs will vary needed. In view of these requirements, it is This analysis assumes that the effect of the considerably depending on the needs of the assumed that there will be some cost final regulations on small entities would be individual student and the type of alternative associated with conducting the triennial roughly proportional to the number of setting, costs are likely to be higher on evaluation even in those cases in which both children with disabilities served by those average because districts are unlikely to be the team and the parents agree to dispense districts.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00255 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12660 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

For school year 1998–1999, we estimate will not increase costs for LEAs because it skills that will allow them to support the that approximately 47 million children will reflects the Department’s longstanding policy implementation of their child’s IEP or IFSP. be enrolled in public elementary and interpretation regarding the eligibility of Section 300.26(b)(3)—Definition of secondary schools. Using the NCES children with ADD/ADHD. ‘‘specially-designed instruction’’—Paragraph definition and assuming all districts grew at Section 300.8—Definition of day—The (b)(3) defines ‘‘specially-designed the same rate between school year 1993–1994 final regulations add definitions of ‘‘day,’’ instruction’’ in order to give more definition and 1998–1999, the Secretary estimates that ‘‘business day,’’ and ‘‘school day,’’ terms that to the term ‘‘special education,’’ which is approximately 1.18 million children are are used in the statute. Including these defined in this section as ‘‘specially-designed enrolled in small districts. Applying the definitions will reduce confusion about the instruction.’’ The definition is intended to NCES estimate of 12 percent, we estimate meaning of these terms and will not impose clarify that the purpose of adapting the that these districts serve approximately costs. The definition of ‘‘day’’ represents the content, methodology, or delivery of 140,000 children with disabilities of the 6 Department’s longstanding interpretation of instruction is to address the child’s unique million children with disabilities served that term. In defining ‘‘business day,’’ the needs and to ensure access to the general nationwide. Department used a commonly understood curriculum. This provision increases the There are many provisions in the final measure of time so that both parents and potential of children with disabilities to regulations that are expected to result in school officials could easily understand participate more effectively in the general economic impacts—both positive and timelines established in the regulations. curriculum. negative. This analysis estimates the impact Section 300.10—Definition of educational Section 300.26—Travel training—The final of those non-statutory provisions that were service agency—The final regulations clarify regulations amend the definition of ‘‘special not required by changes that were made in that the term ‘‘educational service agency’’ education’’ to include a reference to travel the statute by the IDEA Amendments of 1997. includes agencies that meet the definition of training in paragraph (a)(2) and a definition In conducting this analysis, the Department ‘‘intermediate educational units’’ under prior of travel training in paragraph (b)(4)— estimated the additional costs or savings for law. This change does not impose any costs clarifications that do not impose any school district attributable to these on States. additional costs. provisions in relation to the costs of Section 300.18—Charter schools as LEAs— Section 300.121—Free appropriate public implementing the statute, as amended by the The final regulations amend the definition of education—The final regulations add IDEA Amendments of 1997. an ‘‘LEA’’ to include public charter schools language to clarify that the responsibility to The following is a summary of the established as LEAs under State law. This provide FAPE beginning no later than a estimated economic and non-economic change, which adds clarity, does not impose child’s third birthday means that an IEP or impact of the key changes in this final any costs. IFSP must be in effect by that date, and that regulation: Section 300.19—Native language—The a child turning three during the summer Section 300.2—Applicability to public final regulations expand the definition of must receive services if the IEP team agencies—The regulations add charter ‘‘native language’’ to clarify that in all direct determines that the child needs extended schools to the list of entities to which the contact with the child, communication must school year services. This language, which regulations apply. Language is also added in be in the language normally used by the child represents the Department’s longstanding paragraph (b)(2) regarding the applicability of and not the parents if there is a difference interpretation of the statute, does not impose the regulations to each public agency that has between the two, and that for individuals any additional burden on LEAs. The final direct or delegated authority to provide with deafness or blindness, or for individuals regulations also include language in special education and related services in a with no written language, the mode of paragraph (e) to clarify that the group State receiving Part B funds, regardless of communication would be that normally used determining a child’s eligibility must make that agency’s receipt of Part B funds. Neither by the individual. This clarification does not an individualized determination as to change imposes any additional burden; both impose any additional costs for LEAs beyond whether a child who is progressing from were included for clarity. what Federal law would already require. grade to grade needs special education and Section 300.7—Child with a disability— Section 300.20—Foster parents—The final related services—another clarification that The final regulations add a new paragraph regulations clarify that foster parents may act does not impose any additional costs for (a)(2) to clarify that if a child has one of the as parents unless State law prohibits such LEAs. disabilities listed in paragraph (a), but only practice. This provision does not impose any Section 300.121—FAPE for Children needs a related service and not special costs. The definition is intended to promote suspended or expelled from school—Section education, the child is not a ‘‘child with a the appropriate involvement of foster parents 300.121 incorporates the statutory provision disability’’ under Part B, unless the service is consistent with the best interests of the child that the right to a free appropriate public considered special education under State by ensuring that those who best know the education extends to children with standards. This change is not likely to affect child are involved in decisions about the disabilities who have been suspended or the number of children eligible for services child’s education. To the extent there is any expelled from school. Paragraph (d)(1) under this part substantially because this economic impact, it should reduce costs on clarifies that a public agency need not clarification reflects a longstanding States and local agencies that they would provide services to a child who has been interpretation of the Department. otherwise incur for training and appointing suspended for fewer than 10 days in a school Section 300.7(c)(1)—Autism—The final surrogate parents for children whose year if services are not provided to regulations amend the definition of ‘‘autism’’ educational interests could appropriately be nondisabled children. Paragraph (d)(2) to clarify that if a child manifests represented by their foster parents. describes when and to what extent services characteristics of this disability category after Section 300.22—Definition of public must be provided to children who have been age 3, the child could be diagnosed as having agency—The final regulations add public removed from their current educational ‘‘autism’’ if the other criteria are satisfied. charter schools to the list of public agencies. placement for more than 10 school days in This clarification does not impose any This change does not impose any additional a given school year. Paragraph (d)(2) provides additional burden on LEAs. costs on States as Federal law already that the public agency must provide services Section 300.7(c)(9)—Attention deficit requires States to be ultimately responsible to the extent necessary to enable the child to disorder—The final regulations amend the for ensuring FAPE for all children with appropriately progress in the general definition of ‘‘other health impairment’’ to disabilities in public schools in the State. curriculum and advance toward achieving add ADD/ADHD to the list of conditions that Section 300.24—Related services—The the goals in the child’s IEP if the suspension could render a child eligible for services final regulations modify the definition of is for 10 school days or less or is for behavior under this part. The language relating to occupational therapy to make clear that it that is not a manifestation of the child’s other health impairments is also modified to encompasses services provided by a qualified disability. In the case of suspensions of 10 clarify that limited strength, vitality or occupational therapist—a clarification that days or fewer, school personnel, in alertness includes a child’s heightened does not impose any additional costs. The consultation with the special education alertness to environmental stimuli that final regulations revise the definition of teacher, determine if, and to what extent results in limited alertness with respect to parent counseling and training to include services must be provided to a child who has the educational environment. This change helping parents to acquire the necessary been suspended for more than 10 days in a

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00256 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12661 given school year. In the case of suspensions suspended at least once for more than modify its standard if it has only one entry- of more than 10 days, this determination 10 consecutive days. level academic degree requirement. This would be made by the IEP team. Paragraph Section 300.122(a)(3)—Exception to right language clarifies the extent of flexibility (d)(2) also refers to the statutory standard for to FAPE (Graduation)—Paragraph (a)(3) afforded to States in meeting IDEA’s services for children removed for misconduct provides that a student’s right to FAPE ends personnel standards requirement and involving weapons, drugs, and substantial when the student has graduated with a therefore may reduce costs for States and likelihood of injury. regular high school diploma, but not if the LEAs. The final regulations also add language In determining whether and how to student graduates with some other certificate, in a new paragraph (g)(2) that explains that regulate on this issue, the Department such as a certificate of attendance, or a the State option relating to allowing LEAs to considered the impact of various alternatives certificate of completion. The final use the most qualified personnel available on small and large school districts and regulations further clarify that graduation can be invoked even if a State has reached children with disabilities and their families, constitutes a change in placement, requiring its established date for a specific profession— especially the adverse educational impact on written prior notice. Given the importance of another clarification regarding the flexibility a child who has been suspended for more a regular high school diploma for a student’s that is available to States. Language is added than a few days and on more than one post-school experiences, including work and in a new paragraph (g)(3) that clarifies that occasion. The final regulations strike an further education, making it clear that the a State that continues to experience shortages appropriate balance between the educational expectation for children with disabilities is must address them in its CSPD. needs of students and the burden on schools. the same as for nondisabled children Section 300.139—Reporting on Schools will be relieved of the potential provides a significant benefit to children assessments—The final regulations require obligation to provide services for a significant with disabilities. The impact of this change, SEA reports on wide-scale assessments to population of children who are briefly however, is difficult to assess. Many States, include children with disabilities in aggregated results for all children to better suspended a few times during the course of including most of those that report a high ensure accountability for results for all the school year, but required to consider the number of children with disabilities leaving children. This regulation is expected to have educational impact of suspensions on school with a certificate of completion or a minimal impact on the cost of reporting children with chronic or more serious some other certificate that is not a regular assessment results. It could increase the behavioral problems who are repeatedly high school diploma, indicate that students number of data elements reported depending excluded from school. with disabilities have the right to continue to on whether States continue to report trend The cost of this regulation depends on how work to earn a regular high school diploma data for a student population that does not the statutory requirement to provide services after receiving that certificate. Little include children with disabilities to the to children who have been suspended or information is available to evaluate how extent required by § 300.138. There will be expelled is interpreted. If the statute is read many students who now can return to school no impact on school districts since this to require schools to provide services to all after receiving some other certificate of requirement applies to reports that are children who are suspended for one or more completion do so, or how many would return to school if States are required to adopt a prepared by the State educational agency. school days, this regulation would result in policy that clearly indicates that students Section 300.142—Medicaid substantial savings for school districts. If the who exited with a certificate have the right reimbursement—The final regulations add statute is read to give schools the flexibility to continued services. Several State directors language to paragraph (b)(1) specifying that a not to provide services to children suspended of special education indicated that relatively noneducational public agency may not for fewer than 10 school days at a time, few students who now can return, do so. The disqualify an eligible service for Medicaid regardless of the cumulative effect, as long as cost of serving even 10,000 of the 25,000 reimbursement because that service is there is no pattern of exclusion that warrants students who exit each year with certificates provided in a school context. A new treating an accumulation that exceeds 10 would be substantial. paragraph (b)(3) has been added regarding school days as a change in placement, this Section 300.125—Child find—The final the responsibility of State agencies and LEAs regulation would impose some additional regulations clarify the link between child to provide all services described in a child’s costs. find under Parts B and C. The final IEP in a timely manner regardless of which Based on data collected by the Office regulations also add language clarifying that agency pays for the services. These for Civil Rights for school year 1992 and the State’s child find responsibilities extend clarifications of statutory requirements data on the number of children who are to highly mobile children such as the relating to interagency coordination between currently being served under IDEA, it is homeless and migrant children and children educational and noneducational agencies do estimated that approximately 300,000 progressing from grade to grade if they are not impose any additional costs. suspected of having disabilities and in need Section 300.142(e)—Use of public children with disabilities will be of special education. None of these changes insurance—Paragraph (e) describes the suspended for at least one school day impose any requirements beyond what the circumstances under which a public agency during this school year. Many of these statute has been interpreted to require. may access a parent’s Medicaid or other children will be suspended on more Section 300.132(c)—LEA participation in public insurance to pay for required services. than one occasion for one or more days. transition planning conference—The Paragraph (e)(2) provides that a public Because of the differences among the regulations require an LEA representative to agency may not require parents to sign up for children who are expected to be participate in planning conferences arranged public insurance in order for their child to suspended and the range of their service by the lead agency for children who are receive FAPE. Paragraph (e)(2) further needs, the costs of and the burden receiving services under Part C and may be clarifies that a public agency may not require eligible for preschool services under Part B. parents to assume an out-of-pocket expense associated with providing This requirement does not result in and may not use a child’s benefits if that use individualized services in an alternative significant costs for school districts. Only would decrease available coverage, require setting to every child who is suspended about 100,000 children age out of early the parents to pay for services that would for one or more school days would be intervention services each year and in many otherwise be covered by public insurance, substantial. Limiting the requirement to cases, LEA representatives have been increase premiums or lead to discontinuation children who have been suspended for participating in the transition planning of insurance, or risk loss of eligibility for more than 10 days in the school year conferences for these children, although they home and community-based waivers. Under would reduce costs substantially. Based have not been required to do so. the statute, public agencies are required to on data from a few selected States, it Section 300.136—Personnel standards— provide children with disabilities with a free, The final regulations add new paragraphs appropriate public education. It has been the appears that no more than about 45,000 (b)(3) and (b)(4) to clarify that a State is not Department’s longstanding interpretation of these 300,000 children with required to establish any particular academic under IDEA and section 504 of the disabilities will be suspended for more degree requirement for entry-level Rehabilitation Act that this means a public than 10 days in a school year. Of these, employment of personnel in a particular agency may not require parents of children an estimated 15,000 are expected to be profession or discipline and that a State may with disabilities to use private insurance

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00257 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12662 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations proceeds to pay for services their children are administering a public insurance program. impose any additional burden beyond what entitled to receive if the parents would incur This clarification does not impose any local policies and law would otherwise a financial cost as a result. A financial cost additional costs. impose. would include an out-of-pocket expense, a Section 300.148—Public participation— Section 300.234—Schoolwide programs— decrease in coverage, or an increase in The final regulations add language to clarify The final regulations add language clarifying premiums. This interpretation is equally that if a policy or procedure has been through that children with disabilities in schoolwide applicable to the use of public insurance. a State-required public participation process projects must receive services in accordance Although these changes appear to limit an that is comparable to and consistent with the with an IEP and must be afforded all of the LEA’s access to public insurance to cover the Federal requirements, the State would not rights and services guaranteed to such costs of FAPE, all of these changes are based have to subject the policy or procedure to children under the IDEA. This clarification on the statutory requirement to provide FAPE public comment again. This should result in does not impose any additional burden on and, therefore, do not impose additional savings to States and would not increase LEAs. costs on LEAs beyond what the law would burden. Section 300.280—Notice for public require. Moreover, these clarifications would Section 300.152—Commingling—Language participation—The final regulations clarify not affect the use of public insurance has been added to clarify that the required what constitutes ‘‘adequate’’ notice in programs such as Early Periodic Screening, assurance regarding commingling may be paragraphs (b) and (c) and do not impose any Diagnosis and Testing that do not impose any satisfied by the use of a separate accounting additional burden. limits on coverage or require any co- system that includes an audit trail of the Section 300.281—Public participation— payments. expenditure of Part B funds and that separate Paragraph (a) further clarifies the Section 300.142(f) and (g)—Use of private bank accounts are not required. This ‘‘reasonableness’’ standard implied in the insurance— Paragraph (f)(1) clarifies that guidance merely incorporates the statutory requirement, while paragraph (b) public agencies may only access parents’ Department’s prior interpretation and does reflects a statutory requirement in the private insurance to pay for required services not add any burden for States. General Education Provisions Act. These if the parents consent to its use. As noted Section 300.156(b)—Annual description of changes do not impose any additional costs. above, it has been the Department’s Part B set-aside funds—Paragraph (b) Section 300.300—Child find—The final longstanding interpretation that a public provides that if a State’s plans for the use of regulations clarify that the State must ensure agency may not require parents to use private its State level or State agency funds do not child find is fully implemented throughout insurance proceeds to pay for services the differ from those for the prior year the State the State. This clarification does not impose child is entitled to receive if the parents may submit a letter to that effect instead of any additional costs. The final regulations would incur a financial cost as a result. submitting a description of how the funds also add language to clarify that the services Because it is reasonable to assume that use would be used. The effect of this regulation and placement needed by each child with a of private insurance will result in a financial is inconsequential because it implements the disability must be based on the child’s cost in almost all cases, this provision, which Department’s long-standing interpretation unique needs and not on the child’s would allow for the use of private insurance that a letter is sufficient in this case. disability. This clarification does not impose with parental consent, would increase Section 300.197—Compliance—Paragraph any costs on school districts. options available to LEAs for accessing (c) requires SEAs to consider adverse Section 300.301(c)—Implementation of insurance—that is, in cases in which the complaint decisions under the State IEP—The final regulations add language in a parents consent, whether or not a financial complaint procedures in meeting their new paragraph (d) making it clear that there cost is incurred. responsibilities under § 300.197 to determine can be no delay in implementing a child’s However, to ensure that use of parents’ whether any LEA or State agency is failing IEP in any case in which the payment source insurance proceeds is voluntary and that to comply. Consideration of these decisions is being reconciled. This clarification does parents do not experience unanticipated is expected to impose minimal burden on not impose any additional costs. financial consequences, the final regulations States that are appropriately meeting their Section 300.308—Assistive technology— require that parents provide informed responsibilities under this section. The final regulations add a provision that consent. This consent must be obtained each Section 300.231—Maintenance of effort clarifies that a public agency must permit a time a public agency attempts to access (MOE)—The final regulations make it clear child to have access to a school-purchased private insurance. This clarification could that an LEA meets the maintenance of effort assistive technology device at home or in have the effect of limiting access to the use requirement by spending at least the same another setting if necessary to ensure FAPE. of private insurance but is consistent with total or average per capita amount of State This change does not impose any additional the Department’s longstanding interpretation and local school funds for the education of costs on school districts because it that such use must be voluntary. children with disabilities as in the prior year. implements a longstanding policy of the A new paragraph (g) is added that clarifies This change reduces the burden on LEAs of Department. that Part B funds may be used for services maintaining spending on special education Section 300.309—Extended school year covered by a parent’s public or private in those cases in which the State is willing services—The final regulations specify that insurance and to cover the costs of accessing to assume increased responsibility for States may not limit eligibility for extended a parent’s insurance such as paying funding. school year services based on disability and deductible or co-pay amounts. This Section 300.232—Exception to may not limit types and amounts of services; clarification does not impose any additional maintenance of effort— Paragraph (a) makes and clarify that States may establish costs on LEAs. it clear that an LEA may only reduce standards such as likelihood of regression for Section 300.142(h)—Program income— expenditures associated with departing determining eligibility for ESY and that every This paragraph clarifies that a public agency personnel if those personnel are replaced by child is not entitled to receive ESY. These that receives proceeds from insurance for qualified, lower-salaried personnel. Allowing changes in the regulations impose no burden services is not required to return those funds LEAs to reduce their expenditures by not beyond what is required by the statute to the Department or dedicate those funds to replacing departing personnel would violate because they reflect the Department’s this program and that funds expended by a congressional intent, as expressed in the longstanding policy interpretation of what is public agency from reimbursement of Federal House and Senate Committee reports, and required to provide FAPE. funds will not be considered reimbursement diminish special education services in those Section 300.312—Charter schools—The for purposes of §§ 300.154 and 300.231 of districts. The final regulations also clarify final regulations add a new provision that these regulations. This change increases that in those cases in which an LEA is makes clear that children with disabilities flexibility for State and local agencies in invoking the exception to the MOE who attend charter schools and their parents using the proceeds from insurance. requirement and replacing personnel who retain all rights under these regulations. The Section 300.142(i)—Construction—This have departed with lower salaried personnel, regulations further explain which entity in paragraph makes it clear that the IDEA that this must be done consistent with school the State is responsible for ensuring that the regulations should not be read to alter the board policies, applicable collective requirements of the regulations are met. requirements imposed by other laws on a bargaining agreements, and State law. This These clarifications do not impose any State Medicaid agency or any other agency clarification of the relationship does not additional burdens on States, schools

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00258 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12663 districts, or charter schools beyond what the developed, reviewed, or revised on or after Section 300.346(a)(1)—Performance on statute would otherwise require. July 1, 1998 must meet the requirements of assessments—The final regulations require Section 300.313—Developmental delay IDEA, as implemented. This language the IEP team to consider the child’s (DD)—The final regulations add a new clarifies the statute and eliminates the performance on general State and district- provision describing the use of the burden that would be associated with wide assessments, in considering the child’s developmental delay designation. This redoing all IEPs to conform with the new initial or most recent evaluation. This section sets out the requirements for use of requirements before July 1. The one-time cost clarification is not likely to impose an the DD designation. It clarifies that States and of reconvening millions of IEP teams before additional costs because one can reasonably LEAs may use the DD designation for any July 1 would have been substantial. assume that most IEP teams would consider child who has an identifiable disability, Section 300.344(c) and (d)—Participants in this information as a matter of course in provided all the child’s identified needs are IEP meetings—The final regulations add a determining the child’s present levels of addressed, and clarifies that States may new paragraph (c) clarifying that performance. adopt, if they wish, a common definition of determinations about the knowledge and Section 300.347—Transition services—The DD for Parts B and C. These changes clarify expertise of other individuals invited to be final regulations delete the requirement from the flexibility the statute affords States in on the IEP team are made by the parent or the existing regulations that requires a using the DD designation and, therefore, the public agency that invited them. This justification for not providing particular impose no costs. clarification reduces potential burden by transition services. This change eliminates Section 300.341—State standards—The minimizing opportunities for disputes with unnecessary paperwork. final regulations clarify that a child placed by respect to whether the parent or public Section 300.349—Private school a public agency must receive an education agency may invite another individual to placements—The final regulations that meets SEA and LEA standards. The cost participate on the team. A new paragraph (d) incorporate the previous regulatory impact of this change depends largely on the has been added to clarify that a public agency requirement regarding inviting a extent to which non-special education may designate another IEP team member as representative of the private school to a personnel in schools in which a public the public agency representative of the IEP child’s IEP meeting. This requirement does agency is placing children do not meet SEA team. Permitting an individual to perform not impose a significant burden, while and LEA standards. Approximately four dual functions will reduce the cost of helping to ensure appropriate percent of the six million children expected conducting IEP meetings for school districts. implementation of IEPs for children placed to be served under IDEA in school year 1998– Section 300.344(b)—Including the child in in private schools. 1999 are expected to be placed in private the IEP meeting—Paragraph (b) requires the Section 300.350—Accountability—The schools. Because these schools are typically school to invite students to participate in IEP final regulations include a statement schools for exceptional children, virtually all meetings if the meeting will include regarding the responsibilities of public of the professionals employed by these agencies and teachers to make good faith consideration of transition services needs or schools are special education teachers and efforts to ensure that a child achieves the transition services. The effect of this related services personnel, who must meet growth projected in the IEP, even though the provision is to give 14- and 15-year-olds, and SEA and LEA under the prior law, as IEP should not be regarded as a performance in some cases, younger students the implemented by the regulations. Paragraph contract. This clarification does not impose opportunity to participate. The existing (b) clarifies that each public educational any additional costs on agencies and is agency is responsible for developing and regulations have required schools to invite intended to promote proper implementation implementing an IEP for each child it serves students to meetings in which transition of the IEP requirements. or places or refers. This clarification imposes services were to be discussed. These would Section 300.401—Children placed in no additional cost on public agencies since include all students aged 16 years and older, private schools—The final regulations it represents a longstanding interpretation of and in some cases, younger students. The law specify that a child placed in a private school the statute. has also given other children, if appropriate, by a public agency as a means of providing Section 300.342(b)—Implementation of the opportunity to participate in the IEP FAPE must receive an education that meets IEPs—The final regulations add language meeting. Therefore, in some cases, 14- and the standards that apply to the SEA and LEA. requiring that each child’s IEP be accessible 15-year-olds may be already participating. For example, all personnel who provide to the child’s teachers and service providers The costs of notifying students about a educational services must meet the personnel and that each teacher and provider be meeting or trying to ensure that the students’ standards that apply to SEA and LEA informed of specific responsibilities related interests and preferences are accommodated personnel providing similar services. This to implementing the IEP and of needed are more than justified by the benefits of change could increase the costs of these accommodations, modifications, and including students in a discussion of their placements to the extent this change required supports for the child. This regulation is not own transition needs, including their private schools to increase their salaries in expected to impose any undue burden on planned course of study in secondary school. order to recruit regular education personnel schools. The regulations clarify what is Section 300.345(b)—Participants in IEP who meet SEA and LEA standards. However, minimally required to promote effective meeting—The final regulations clarify that the costs imposed by this change are implementation of the IEP requirements and the public agency must inform parents of expected to be minimal. Less than two allow schools flexibility in determining how their right and that of the public agency to percent of the six million children served to comply. invite someone to the IEP meeting who has under Part B are placed by public agencies Section 300.342(c)—Use of IFSP— knowledge or special expertise. This in private schools. These schools are Paragraph (c) requires school districts to additional requirement will impose minimal typically special schools in which most of obtain written informed consent from parents burden on schools because this information the education personnel are providing before using an IFSP instead of an IEP, which could be included in other notices the special education and related services. These is based on an explanation of the differences schools are already required to provide to personnel have been required to meet SEA between the two documents. The regulation parents. and LEA standards under prior law. would impose a cost burden on districts in Section 300.345(f)—Copy of the IEP—The Section 300.403—Reimbursement for those States that elect to allow parents to opt final regulations require the public agency to private placements—The final regulations for the use of an IFSP instead of an IEP. provide parents a copy of the IEP. The cost include language in paragraph (c) that makes However, once a form is developed that of this change will depend on the extent to it clear that a private placement must be explains the differences between an IFSP and which parents are currently receiving copies. appropriate to be eligible for reimbursement, an IEP, the costs of providing this form to Under current regulations, schools are but does not need to meet State standards. parents and obtaining written consent are required to provide a copy to parents who This clarification, which is based on most likely minimal, and are justified by the request one. It is reasonable to assume that Supreme Court decisions regarding the basic benefits of ensuring that parents understand schools routinely provide a copy to parents standard for reimbursement, does not impose the role of the IEP in providing access to the who attend the IEP meeting. The cost of any additional costs on State or local general education curriculum. providing copies to those parents who would agencies. Section 300.342(d)—Effective date for not otherwise receive copies is not likely to Section 300.451—Consultation on child IEPs—Paragraph (d) provides that all IEPs be substantial. find—The final regulations add a new

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00259 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12664 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations paragraph (b) to require public agencies to children will receive services, what services of meetings in which they are entitled to consult with representatives of parentally- will be provided, how and where services participate. It further limits what is meant by placed private school students on how to would be provided, and how they would be the term ‘‘meeting.’’ These regulations conduct child find. Paragraph (a) clarifies evaluated. The regulations make it clear that impose the minimal requirements necessary that the child find activities for parentally- the representatives must have a genuine to implement the statute. The language in placed children must be comparable to child opportunity to express their views and that paragraph (b)(1) helps to clarify what is find activities for children with disabilities in the consultation must be before the LEA required to provide parents with a public schools. The consultation requirement makes its final decisions. The regulations meaningful opportunity to attend meetings may impose an additional burden but is also require the LEA to conduct meetings to while the language in paragraph (b)(2) is expected to better enable school districts to develop a services plan for each private designed to reduce unnecessary burden by carry out this mandatory function. The school child and to ensure the participation clarifying what constitutes a ‘‘meeting.’’ requirement for comparability does not of a representative of the child’s private Section 300.501(c)—Placement meetings— impose any additional burden, but clarifies school at the meeting. These regulations help Paragraph (c) of § 300.501 specifies that the the intent of the statute, which does not ensure effective implementation of the procedures to be used to meet the new distinguish between child find activities for provisions relating to serving parentally- statutory requirement of parental children enrolled in public schools and those placed children and impose minimal burden involvement in placement decisions. It conducted for children in private schools. on school districts. provides that the procedures used for Section 300.452—Services plan—A Section 300.455—Services to children in parental involvement in IEP meetings also be paragraph has been added that clarifies that private schools—The final regulations clarify used for placement meetings. These include a services plan must be implemented for each that services provided private school specific requirements relating to notice, parentally-placed private child who is children must be provided by personnel methods for involving parents in the meeting, receiving services under Part B. This meeting SEA standards; that children in and recordkeeping of attempts to ensure their clarification does not impose any additional private schools may receive different participation. Because in many cases burden. amounts of services than children in public placement decisions will be made as part of Section 300.453—Expenditures on child schools; and that there is no individual IEP meetings, as is already the case in most find in private schools—A new paragraph (b) entitlement to services; each child to be jurisdictions, the impact of this regulation requires States to conduct a child count of provided services must have a services plan. will be minimal. In those cases in which private school children with disabilities and These changes do not impose any additional placement meetings are conducted separately consult with representatives of private school costs on school districts; indeed they reflect from the IEP meetings, the benefits of making children in deciding how to conduct that the Department’s longstanding interpretation substantial efforts to secure the involvement count. This count is necessary to enable of the provisions relating to serving of parents and provide for their meaningful States to determine how much they are parentally-placed children. participation in any meeting to discuss their required to spend on providing special Section 300.456—Treatment of child’s placement more than justify the costs. education and related services to this transportation—Consistent with the Section 300.502—Independent educational population. A new paragraph (c) clarifies that Department’s longstanding interpretation, the evaluation—Paragraph (a) provides that on the costs of child find for private school final regulations state that transportation request for an independent education children may not be considered in must be provided to private school children evaluation (IEE) parents are provided with determining whether the LEA met the if necessary to enable them to benefit from information about where an IEE may be requirement for proportionate expenditures the services that are offered. The regulations obtained and the agency criteria applicable to on parentally-placed children. This provision also clarify that the cost of providing the IEEs, criteria that must be consistent with the does not impose any additional cost on transportation may be included in calculating definition of an IEE. Paragraph (b) makes it school districts because it has been the whether the LEA has met its financial clear that if a parent requests an IEE, the Department’s longstanding interpretation that obligations. The final regulations further agency must either initiate a due process child find includes the identification of clarify that the LEA is not required to provide hearing to show that its evaluation is children in private schools and that the cost transportation between the child’s home and appropriate or provide for an IEE at public of child find for private school children may the private school. These clarifications could expense. The final regulations also provide not be considered in determining whether reduce the potential cost for school districts that a public agency may request an the LEA has met the requirements to serve of complying with the requirement for explanation from the parents regarding their children in private schools. Paragraph (d), proportionate expenditures. concerns when a parent requests an IEE at which clarifies that States and LEAs are not Section 300.457—Complaints of public expense, but such an explanation may prohibited from spending additional funds parentally-placed children—The final not be required and the public agency may on providing special education and related regulations make it clear that due process not delay providing the IEE, or initiating a services to parentally-placed children beyond procedures do not apply to parentally-placed due process hearing. These provisions what would be required, does not impose any children. This clarification will reduce costs requiring the agency to provide information additional costs. Paragraph (b) requires the to the extent that LEAs have allowed parents to the parents and take action do not result LEA to conduct a child count of children to use the due process procedures to bring in significant additional costs because if the with disabilities in private schools on the complaints relating to parentally-placed agency did not take action, parents would be same day in which the overall count is children. This section also clarifies that due free to request due process to compel action. conducted, to consult with private school process procedures do apply to child find. It is important for parents to be informed representatives on conducting that annual This change will increase costs to the extent about the relevant agency criteria for an IEE count, and to use that count to determine that parents were unaware of their ability to since the parent has a right to an IEE at required expenditures. Although the bring complaints about child find and now public expense and the IEE must meet agency requirement to conduct the child count on a do so. criteria to be considered by the public agency date certain limits LEA flexibility and the Section 300.500(b)(1)(iii)—Parental in determining eligibility. required consultation imposes a burden, both consent—The final regulations add language Paragraph (e) provides that a public agency requirements help ensure that the child to clarify that a revocation of consent does may not impose conditions or timelines count accurately reflects the size of the not have retroactive effect if the action related to obtaining an independent private school population. consented to has already occurred. This evaluation. This requirement, which arguably Section 300.454—Services to children in change protects LEAs from complaints limits the flexibility of school districts, is private schools—The final regulations clarify regarding services provided in reliance on critical to ensuring that school districts do that no private school child has an individual parental consent that was subsequently not find ways to circumvent the right right to receive any of the services the child revoked. It does not impose any costs on provided by the IDEA to parents to obtain an would receive if enrolled in a public school. LEAs. independent evaluation. This section further provides that each LEA Section 300.501(b)—Parental access to Sections 300.504(b)(14)—Notice to parents shall consult with representatives of private meetings—Paragraph (b) of § 300.501 defines regarding complaint procedures—The final school children in determining which when and how to provide notice to parents regulations require that the required

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00260 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12665 procedural safeguards notice to parents impact on States, given current practices. if a State hearing officer in a due process include information about how to file a Many States contract with private hearing or a review official in a State level complaint under State complaint procedures. organizations to conduct their mediations. review agrees with the parents that a change Because districts are already required to Others use employees of the State in placement is appropriate, the child’s provide this notice to parents, the additional educational agency, which, in most cases, is placement must be treated in accordance cost of adding this information will be one- not the agency providing direct services. with that agreement. This regulation is not time and minimal. The burden on small Given the significant benefits to children, expected to have a significant cost impact districts could be minimized if each SEA families, and school districts of expeditiously because it is based on the Supreme Court’s were to provide its LEAs with appropriate resolving disagreements without resort to language in Burlington School Committee v. language describing the State procedures for litigation, the benefits of this change easily Department of Education, and the decisions inclusion in the parental notices. Making justify any cost or inconvenience to States. of appellate courts in such circuits as the 3rd parents aware of a low cost and less Section 300.506(d)(2)—Failure to and 9th. If paragraph (c) were not included adversarial mechanism that they can use to participate in meeting—Paragraph (d)(2) in the regulation, in many cases, parents resolve disputes with school districts should would specify that a parent’s failure to would be expected to be able to successfully result in cost savings and more cooperative participate in a meeting at which a argue, as they have in the past, that the relationships between parents and districts. disinterested person explains the benefits of hearing officer’s decision to change the Section 300.505(a)(3)—Parental consent and encourages the use of mediation could placement of a child be implemented. The for reevaluation—Paragraph (a)(3) clarifies not be used as a reason to deny or delay the cost impact of this regulation in other circuits that the new statutory right of parents to parent’s right to a due process hearing. This and cases in which the placement change consent to a reevaluation of their child does change is not likely to limit the benefits to would not have occurred is indeterminate not require parental consent prior to the school districts of mediation as it is unlikely because in some cases implementation of the review of existing data or administering a test that parents who are unwilling to participate hearing officer’s decision will result in or other evaluation procedure that is given to in such a meeting with a disinterested person moving children to more costly placements all children (unless all parents must consent). would be willing to engage in the voluntary and, in other cases, to less costly placements. As a matter of good practice, school mediation provided for in the statute. In either case, the benefits to the child of personnel should be engaged in reviewing Section 300.507(c)(4)—Failure to provide securing an appropriate placement justify information about the child’s performance on notice—Paragraph (c)(4) makes it clear that any potential increase in costs or other an on-going basis. Requiring parental consent failure by parents to provide the notice burdens to the school district. for this activity would have imposed a required by the statute cannot be used by a Section 300.519—Change in placement— significant burden on school districts with school district to delay or deny the parents’ The final regulations define a change in right to due process. This regulation would little discernable benefit to the children placement in the context of disciplinary eliminate the possibility that public agencies served under these regulations. removals as a removal for more than 10 will delay a due process hearing pending Paragraph (c)(2) uses the procedures that consecutive school days or a series of receipt of a notice that they deem to be were in the prior regulations dealing with removals that constitute a pattern because acceptable. This regulation does not impose inviting parents to IEP meetings as a basis for they cumulate to more than 10 school days any cost on school districts and would help defining what it means to undertake ensure that parents are afforded appropriate in a school year and, because of such factors ‘‘reasonable measures’’ in obtaining parental and timely access to due process. as the length of each removal, the total consent. The intent of the change is to Section 300.510(b)(2)(vi)—Access to amount of time the child is removed, and the meaningfully operationalize the statutory findings and decisions—The final regulations proximity of the removals to one another. right of parents to consent to a reevaluation give parents the option of selecting an This change does not impose any additional of their child. Given the importance of electronic or written copy of the findings and costs. It is consistent with longstanding parental involvement in all parts of the decisions in the administrative appeal of a interpretations of the law. process, any burden imposed by the due process decision. This is consistent with Section 300.520(a)—Authority of School proposed recordkeeping requirements is the statutory right of the parents to a written Personnel—Paragraph (a) clarifies that school justified by the benefits of securing parental or electronic copy of the decision and personnel may remove a child with a consent to the reevaluation. findings in the due process hearing. It is disability for school code violations for up to Section 300.506—Impartial mediation— important to ensure that parents are provided 10 days at a time more than once during a Paragraph (b)(2) specifies that if the mediator the decisions and findings in a way that is school year, as long as such removals do not is not selected from the list of mediators on most useful to them. The cost of constitute a change in placement. This a random basis, such as rotation, both parties implementing this requirement is expected to clarification does not result in any additional must be involved in selecting the mediator be negligible. costs or savings for school districts because and agree with the selection of the mediator. Section 300.513(b)—Attorneys’ fees— it is consistent with the Department’s Paragraph (c) interprets the statutory Paragraph (b) provides that funds provided longstanding interpretation of the law and requirement that mediation be conducted by under Part B of IDEA could not be used to the statute, as amended. an impartial mediator to mean that a pay attorneys’ fees or costs of a party related Section 300.520(b) and (c)—Behavioral mediator may not be an employee of any LEA to an action or proceeding under section 615 interventions—Paragraph (b) of this section or a State agency that is providing direct of IDEA. This regulation does not increase makes it clear that if a child is removed from services to the child and must not have a the burden on school districts or otherwise his or her current placement for 10 schools personal or professional conflict of interest. substantially affect the ability of school days or fewer in a given year, the school is However, a person will not be considered an districts to pay attorneys’ fees that are not required to convene the IEP team to employee merely for being paid to serve as awarded under IDEA or to pay for their own develop an assessment plan for the child. a mediator. Since participation in mediation attorneys. It merely establishes that attorneys’ Paragraph (b) further provides that a school is voluntary, it must be viewed as an fees must be paid by a source of funding would be required to do so if the child were attractive alternative to both public agencies other than Part B based on the Department’s suspended for more than 10 days in a given and parents. Both parties must trust the position that limited Federal resources not be school year. Paragraph (b) specifies that the process and the first test of that is the used for these costs. This regulation is not IEP team meeting to consider behavioral selection of the mediator. It is unlikely that expected to have a cost impact on small (or interventions occur within 10 business days parents would regard an employee of the large) districts because all districts have non- of the behavior that leads to discipline rather other party to the dispute to be impartial or Federal sources of funding that are than 10 calendar days, and clarifies that, if a person who has a personal or professional significantly greater than the funding the child does not have a behavior conflict of interest. Providing for impartiality provided under IDEA. Currently, funds intervention plan, the purpose of the meeting should help promote the use of mediation provided to States under the IDEA represent is to develop an assessment plan. After and improve its overall effectiveness in about ten percent of special education completing the assessments specified in the resolving disagreements. The impact of expenditures. plan, the team must meet to develop disallowing these individuals from serving as Section 300.514(c)—Hearing officer appropriate behavioral interventions to mediators is not likely to have a significant decisions—The final regulations clarify that address that behavior. Because the statute

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00261 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12666 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations could be read to require that the IEP team be that a school is required to conduct a placement on the grounds that returning a convened for this purpose the first time a manifestation review only when the removal child to his or her regular placement would child is suspended in a given year, the constitutes a change in placement. be dangerous. This change, which increases requirement in the final regulations would As was the case in considering section the options available to school districts for significantly reduce the burden on school 300.520(c), the Department considered the dealing with a child engaged in dangerous districts. potential benefits to the child and impact on behavior, does not impose any costs on The business day alternative would further districts of convening the IEP team. school districts. minimize the burden on school districts and The conclusion was that the IEP team Section 300.527—Basis of knowledge—The would not have a significant impact on should not be required to meet and final regulations make a number of clarifying children with disabilities, in light of other determine whether the child’s behavior was changes: Language is added to paragraph protections for children. a manifestation of the disability unless the (b)(2) to clarify that the behavior or In determining whether to regulate on this district is proposing a suspension of more performance must be in relation to one of the issue, the Secretary considered the potential than 10 days at a time or a suspension that disability categories. Paragraph (b)(4) has benefits of providing behavioral constitutes a pattern of exclusion. The cost of been revised to require that expressions of interventions to children who need them and convening the team to conduct a concern about the child be made to personnel the impact on school districts of convening manifestation review outweigh the potential who have responsibility for child find or the IEP team to develop behavioral benefits to a child being suspended for a few special education referrals. A new paragraph interventions if children are suspended. days, particularly because the statute clearly has been added to clarify that if an agency Based on consideration of the costs and allows the school a period of ten days after acts and determines that the child is not benefits to children and schools, the IEP team the misconduct occurs to convene the team eligible, and provides proper notice to the should not be required to meet and develop for purposes of conducting the manifestation parents, and there are no additional bases of or review behavioral interventions for a child determination. In the case of short term knowledge that were not considered, the unless the child was engaged in repeated or suspensions, the team would often be agency would not be held to have a basis of significant misconduct. The costs and burden meeting after the child had already returned knowledge. These changes reduce costs for of convening the team the first time a child to school. LEAs by further specifying what is required is suspended outweigh any potential benefits The primary purpose of this review is to for determining that an LEA has a basis for to the child if the child is receiving a short- ensure that a child will not be punished for knowledge that a child is a child with a term suspension for an infraction. At the behavior that is related to his or her disability. By specifying, for example, that same time, the benefits of requiring a plan for disability. The team is required to consider, expressions of concern be made to personnel a child who has already been suspended for for example, whether the child’s disability responsible for child find or special more than 10 days justify the costs given the has impaired his or her ability to understand education referral eliminates the possible benefits of early intervention to both students the impact and consequences of his or her interpretation that a school must provide and schools. behavior and whether the child’s disability services and other protections to children The final regulations further provide that has impaired the child’s ability to control the who were the subject of conversation in the case of a subsequent suspension of less behavior subject to discipline. Conducting between any two people in the school. than 10 days that does not constitute a change in placement for a child who has a this review is of little use after the child has Without these clarifications, commenters behavioral intervention plan, a meeting returned to school. A review would have have suggested that potentially all children would not be required to review the limited applicability to future actions. Even could avail themselves of IDEA protections. behavioral intervention plan unless one or in those cases in which the child engaged in Roughly three million nondisabled more team members believe that the child’s identical misconduct, one’s assessment of the children are expected to be the subject of IEP or its implementation need modification. relationship between the child’s behavior disciplinary actions during this school year. Since the statute could be read to require that and disability could change. Moreover, the Parents are likely to raise this issue in the the IEP team meet to review the child’s plan statute clearly contemplates an case of long-term suspensions and expulsions each time the child is suspended, this individualized assessment of the conduct at in which identification as a child with a language further reduces the cost to school issue. Once a child has been suspended for disability ensures the non-cessation of districts. more than 10 days in a given year, the team educational services, among other Section 300.521—Due process hearing for will already be considering the need for protections. An estimated 300,000 removal—The final regulations specify that a changes in the child’s behavior intervention nondisabled children receive long-term hearing officer is to make the determination plan, if the child has one, or will be meeting suspensions or expulsions in a given school authorized by section 615(k)(2) of IDEA to develop one, if the child does not. year. Based on the public comments on this (regarding whether a child’s current Requiring an additional meeting to examine section of the regulations, it would appear educational placement is substantially likely the relationship between the child’s behavior that a basis for knowledge claim could be to result in injury to self or others) in a due and disability is unlikely to produce sustained in a significant percentage of these process hearing. additional information that would inform the cases. Assuming for purposes of this analysis A hearing that meets the requirement for a development of appropriate behavioral that it could be sustained in about 10 percent due process hearing is the most appropriate strategies. Requiring the behavioral of cases, the costs of providing services, for forum for expeditiously and fairly assessment to be conducted once a child has example, to those children during the period determining whether the district has been suspended for 10 days in a school day in which they are excluded from school demonstrated by substantial evidence will help ensure that the district responds would be considerable because only a (defined by statute as ‘‘beyond a appropriately to the child’s behavior. minority of States currently provide services preponderance of the evidence’’) that This regulation would significantly reduce to children without disabilities who have maintaining the current placement is costs for school districts if the statute is read been disciplined. Therefore, the savings substantially likely to result in injury and to to require a manifestation review every time resulting from these clarifications are consider the appropriateness of the child’s a child is suspended. considerable. current placement and the efforts of the Section 300.523(f)—Manifestation Section 300.528—Expedited due process district to minimize the risk of harm. determination—The final regulations clarify hearings—The final regulations specify that The cost impact of this regulation on that if the team identifies deficiencies in the States establish a timeline for expedited due school districts will be limited because in child’s IEP, its implementation, or process hearings that meets certain cases in which school districts and parents placement, the agency must take immediate standards. These include: ensuring written agree about the proposed removal of a steps to remedy the deficiencies. This decisions are mailed to the parties in less dangerous child, no hearing is necessary. In clarification does not impose any costs than 45 days, with no extensions that result those few cases in which there is beyond what the statute would require. in a decision more than 45 days from the disagreement, the benefits of conducting a Section 300.526—Placement in alternative request for the hearing, and providing for the due process hearing justify the costs. setting—Language is added to paragraph (c) same timeline whether the hearing is Section 300.523—Manifestation to make clear that a school district may requested by a public agency or parent. determination—Paragraph (a) makes it clear request a hearing officer to extend a 45-day Paragraph (b) further clarifies that the State

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00262 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12667 may alter other State-imposed procedural children are not eligible if they need the student at age 18. The regulations further rules from those it uses for other hearings. specialized instruction because of limited provide that if the rights of parents under These clarifications provide States with English proficiency or lack of instruction in Part B of IDEA are transferred to the student maximum flexibility in conducting these reading or math, but do not need specialized at the age of majority, then the rights of hearings while ensuring equitable treatment instruction because of a disability. This parents regarding education records also for parents and public agencies. Requiring clarification does not impose any costs on transfer. This clarification does not impose such hearings within 45 days imposes school districts, but reflects the statutory any additional costs on school districts. minimal burden on States since 45 days intent. Section 300.581–300.587—Procedures for provides ample time—more time than Section 300.534(c)—Termination of enforcement—The final regulations clarify proposed by many of the commenters—and eligibility—Paragraph (c) clarifies that an the types of notice and hearing that the the requests for such hearings are not evaluation is not required before the Department would provide before taking an expected to be great. Requests for expedited termination of a student’s eligibility under enforcement action under Part B of IDEA. hearings will only be made in those cases Part B due to graduation with a regular high Providing clarity about the applicable involving serious misconduct in which there school diploma or aging out under State law. procedures for the various types of is a disagreement between the parents and This clarification reduces the costs for school enforcement actions will benefit potential public agency regarding action proposed by districts by eliminating the need to conduct subjects of enforcement actions and the the public agency. evaluations for the 146,000 students who are Department by ensuring that time and Section 300.529—Transmittal of education expected to exit high school in school year resources are not spent on unnecessary records—The final regulations clarify that a 1998–1999 by graduating or aging out. disputes about procedures or needless child’s special education and disciplinary Section 300.535(a)(1)—Eligibility process. records may only be transmitted to the extent determination procedures—The final Section 300.589—Waiver procedures—The that such transmission is permitted under the regulations add parents to the variety of final regulations describe the procedures to Family Educational Rights and Privacy Act sources from which the public agency will be used by the Secretary in considering a (FERPA). This clarification, which restricts draw in interpreting evaluation data for the request from an SEA of a waiver of the the extent to which such records may be purpose of determining if the child is a child supplement, not supplant and maintenance transmitted to certain agencies, consistent with a disability. This change imposes of effort requirements in the IDEA with the requirements of FERPA, does not minimal burden while providing for Amendments of 1997. This regulation does impose any burden on school districts. meaningful parental involvement, consistent not impose any cost on local school districts. Section 300.532—Evaluation procedures— with the requirements for including parents The procedures will only affect a State The final regulations require that assessments in the team that determines eligibility. requesting a waiver under Part B. of children with limited English proficiency Section 300.552(e)—Placement in regular Section 300.624—Capacity-building must be selected and administered to ensure classroom—The final regulations provide subgrants—The final regulations make it that they measure the extent to which a child that a child may not be denied placement in clear that States can establish priorities in has a disability and needs special education, an age-appropriate regular classroom solely awarding these subgrants. The language and do not instead measure the child’s because the child’s education requires provides permissive authority to be used at English language skills. This change, which modification to the general curriculum. This the discretion of each State, clarifying the clarifies requirements under both IDEA and change clarifies the requirement in the law intent of the statutory change and imposing Title VI, does not impose any additional that a child may only be removed from the no burden on State agencies. Allowing States burden. The final regulations also add regular educational environment if education to use these funds to foster State-specific language requiring that if an assessment is in the regular class cannot be achieved improvements should lead to improving not conducted under standard conditions, satisfactorily with the use of supplementary educational results for children with information about the extent to which the aids and services. Although this clarification disabilities. assessment varied from standard conditions, may result in an increase in the number of Section 300.652—Advisory panel such as the qualifications of the person children served in regular classes, it does not functions—The final regulations add administering the test or the method of test impose costs on school districts beyond what language stating that the panel’s administration, must be included in the the statute itself would require because of the responsibilities include advising on the evaluation report. This change will impose a longstanding requirement to serve children education of students with disabilities who burden on school districts only to the extent in the least restrictive environment. have been incarcerated in adult prisons. This that the evaluation team does not currently Section 300.562—Access to records—The additional burden will not impose significant include information in its report on the final regulations make clear that agencies costs. extent to which an assessment varied from must comply with requests for access to Section 300.653—Advisory panel standard conditions. Information about the records by parents prior to any meetings, but procedures—The final regulations include qualifications of the person administering the no more than 45 days after request, language in paragraph (d) to require panel test and the method of test administration is consistent with FERPA. This provision meetings to be announced long enough in needed so that the team of qualified minimizes burden on LEAs by not imposing advance to afford people a reasonable professionals can evaluate the effects of a shorter deadline than provided by FERPA, opportunity to attend and require that agenda variances in such areas on the validity and except as necessary to provide access before items be announced in advance and that reliability of the reported information. The an IEP meeting or hearing. This provision meetings be open. These changes impose final regulations clarify that in evaluating a helps ensure that parents have the ability to minimal burden while facilitating child all needs of the child must be adequately prepare for and participate in IEP meaningful participation in the meetings. identified, including any commonly linked to meetings and due process hearings, which Sections 300.660(a) and 303.510(a)— a disability other than the child’s. This are crucial to ensuring each child’s right to Information about State complaint change does not impose any additional a free appropriate public education. procedures—The final regulations require burden on districts, but clarifies what is Section 300.571—Consent for disclosure of States to widely disseminate their complaint intended by the term ‘‘comprehensive’. information—The final regulations provide procedures. While this proposed requirement Section 300.533(b)—Review of existing for an exception to the requirement for would increase costs for those State data—The final regulations make it clear that parental consent for disclosure of education educational agencies that have not the group that is responsible for reviewing records, consistent with the language in established procedures for widely existing data on the child as part of an initial § 300.529. This does not impose any costs on disseminating this information, the Secretary evaluation or a reevaluation need not meet to school districts and resolves an apparent could have prescribed specific mechanisms conduct this review. This clarification contradiction in the regulations with respect for this dissemination but chooses not to, in reduces costs for school districts by to disclosure of education records to law order to give SEAs flexibility in determining eliminating unnecessary meetings of this enforcement and juvenile justice agencies. how to accomplish this. The requirement group. Section 300.574—Children’s rights relating would not have any direct impact on small Section 300.534(b)—Eligibility to records—The final regulations clarify that districts and would benefit parents who determination—Paragraph (b) clarifies that the parents’ rights under FERPA transfer to believe that a public agency is violating a

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00263 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12668 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations requirement of these regulations, by 1997, that noted that this procedure provides had been filed. On the other hand, allowing providing them the information they would very limited benefits to children with States to focus their complaint resolution need to get an official resolution of their disabilities or to IDEA programs and involves procedures on issues that are relevant to the issue without having to resort to a more a considerable expenditure of the resources current operation of the State’s special formal, and generally more costly, dispute of the Office of Special Education Programs education program may serve to improve resolution mechanism. and other offices of the Department. The services for these children. Section 300.660(b) and 303.510(b)— Inspector General’s report concluded that Section 300.712—Allocations to LEAs— Remedies—The final regulations require greater benefit to the programs and The final regulations clarify how to calculate States in resolving complaints to address individuals covered by IDEA would be how to remedy the failure to provide achieved if the Department eliminated the the base payments to LEAs under the appropriate services, including awarding of Secretarial review process and focused on permanent formula in a case in which LEAs compensatory relief and corrective action. improving State procedures for resolving have been created, combined, or otherwise This clarification does not impose any complaints and implementing IDEA reconfigured. Although recalculation itself additional costs beyond those that would be programs. This change, and the changes in imposes some burden on the SEA, the otherwise required by the statute. §§ 300.660(b), 300.503(b)(8), 303.510(b), and regulations provide the SEA with Section 300.661(c) and 303.512(c)— 303.403(b)(4) that require greater public considerable flexibility in doing that Requirements for complaint procedures—The notice about the State complaint procedures, recalculation. For example, the SEA final regulations add language that clarifies would implement those recommendations. determines which LEAs have been affected how the State complaint process interacts Sections 300.662 and 303.511—State by the creation, combination, or with the due process hearing process. The reviews—This change relieves States of the reconfiguration and what child count data to language clarifies that a State may set aside requirement to review complaints about use in allocating the funds among the any part of a complaint being addressed in violations that occurred more than three affected LEAs. a due process hearing; that the due process years before the complaint. This limitation Language has also been added to the hearing decision is binding; and that failure on the age of the complaints is expected to regulations that in implementing the to implement a due process decision must be reduce the cost to SEAs of investigating and permanent formula States must apply, on a addressed by the SEA. This clarification is reviewing complaints. There is no reason to uniform basis, the best data available to expected to reduce costs by reducing believe this change would adversely affect them. This clarification does not impose any unnecessary disputes about the relationship small districts. There is also no reason to between the two processes. expect that this proposal would have a additional burden on States in allocating Sections 300.661 and 303.512—Secretarial significant negative impact on individuals or funds. review—The final regulations delete the entities submitting complaints under these Section 300.753—Annual child count— provision providing for Secretarial review of procedures as it is unlikely that complaints The final regulations clarify that the SEA complaints filed under State complaint alleging a violation that occurred more than may count parentally-placed private school procedures. The effect of this change on three years in the past and that do not allege children if a public agency is providing small (and large) districts would be a continuing violation or request special education or related services that inconsequential because of the small number compensatory services would result in an meet State standards to these children. This of requests for these reviews. This was done outcome that puts the protected individuals clarification does not impose any burden on in recognition of the report of the under these regulations in a better position SEAs or LEAs while helping to ensure a more Department’s Inspector General of August than they would have been in if no complaint equitable distribution of IDEA funds.

ATTACHMENT 3.ÐDISPOSITION OF NPRM NOTES IN FINAL PART 300 AND 303 REGULATIONS 1 [Note: Attachment 3 will not be codified in the Code of Federal Regulations]

I. List of notes by section in NPRM II. Disposition of notes in final regulations

Subpart A

300.1ÐPurposes: • Independent living ...... • In discussion under § 300.1; and in Appendix A (Re-transition services). 300.2ÐApplicability to State, local, and private agencies: • Requirements are binding on each public agency regardless of whether it receives B • Added to Reg as § 300.2(a)(2). funds. Definitions Used in This Part 1. List of terms defined in specific sections ...... 1. Moved to Index under ``Definitions.'' 2. Abbreviations used ...... 2. Terms identified in Reg text. 300.6ÐAssistive technology service: • Definitions of assistive technology device and service are identical to Technology Act of • Deleted. 1988. 300.7ÐChild with a disability: 1. Autism characteristics after age 3 is still Autism ...... 1. Added to Reg as § 300.7(c)(1)(ii). 2. Developmental DelayÐExplanation ...... 2. Added to Reg at § 300.7(b)(2). 3. Dev. DelayÐH.Rpt statement on importance of ...... 3. In discussion under § 300.7(b). 4. Emotional disturbance (ED)ÐH.Rpt statement ...... 4. In discussion under § 300.7(c). 5. ADD/ADHDÐEligible under OHI or other disability category if meet criteria under 5. ``ADD/ADHD'' and ``limited alertness'' added § 300.7(a). to § 300.7(c)(9). 300.12ÐGeneral curriculum: • Term relates to content and not setting ...... • Added to Reg (IEPЧ 300.347(a)(1)(i), (2)(i)). In discussion of ``Gen. Cur.'' 300.15ÐIEP Team: • IEP team may also serve as placement team ...... • In discussion under § 300.16. 300.17ÐLEA: • Charter school that meets def of ``LEA'' is eligible for B-$; & must comply w/B if it re- • Added to Reg as part of § 300.312. ceives B-$. 300.18ÐNative language: • (1) Sections where term is used ...... • (1) Listed in Index.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00264 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12669

ATTACHMENT 3.ÐDISPOSITION OF NPRM NOTES IN FINAL PART 300 AND 303 REGULATIONS 1ÐContinued [Note: Attachment 3 will not be codified in the Code of Federal Regulations]

I. List of notes by section in NPRM II. Disposition of notes in final regulations

(2) Exceptions to definition ...... (2) Added to Reg at § 300.19. In discussion under § 300.19. 300.19ÐParent: • ``Parent'' includes a grandparent or stepparent, etc ...... • Added to Reg at § 300.20(a)(3). 300.22ÐRelated services: 1. All related services may not be required ...... 1. In discussion under § 300.24. 2. H. Rpt. on O/M services and travel training ...... 2. In discussion under § 300.24. ÐTravel training added as § 300.26(a)(2)(ii) and (b)(4). 3. Use of paraprofessionals if consistent w/.136 ...... 3. In discussion under §§ 300.24; 300.136. 4. TransportationÐsame as nondisabled; accommodations ...... 4. Added to Q±33 in Appendix A. 300.24ÐSpecial education: • A child must need special education to be eligible under Part B of the Act ...... • Added to Reg as § 300.(7)(a)(2); In discus- sion under § 300.26. 300.27ÐTransition services: • May be special education or related services.. List under § 300.27(c) is not exhaustive ...... • Added to Reg as § 300.29(b). In discussion under § 300.29.

Subpart B

300.121ÐFree appropriate public education: 1. FAPE obligation begins on 3rd birthday ...... 1. Added to Reg as § 300.121(c). 2. Re-child progressing from grade to grade ...... 2. Added to Reg as §§ 300.121(e), 300.125(a)(2)(ii), and § 300.300(d). 300.122ÐException to FAPE for certain ages: 1. FAPE and graduation ...... 1. ``Prior notice'' added to Reg as § 300.122(a)(3)(iii). ÐA new § 300.534(c)(2) states that evaluation is not required for graduation with a regular diploma. 2. H.Rpt. Re-students with disabilities in adult prisons ...... 2. Added as § 300.122(a)(2)(ii). 300.125ÐChild find: 1. Collection of data subject to confidentiality ...... 1. Added to Reg as § 300.125(e). 2. Services must be based on unique needs ...... 2. Added to Reg as § 300.300(a)(3). 3. Child find under Parts B and C ...... 3. Added to Reg as § 300.125(c). 4. Extend child find to highly mobile children ...... 4. Added to Reg as § 300.125(a)(2)(i). 300.127ÐConfidentiality of * * * information: • Reference to FERPA ...... • Deleted. (Already covered under 300.560± 300.576.) 300.130ÐLeast restrictive environment: • H. Rpt. statement Re-continuum ...... • Added to Reg at § 300.130(a). 300.135ÐComprehensive system of personnel development: • H.RptÐDisseminate information on Ed research * * * States able to use infoÐ(a)(2) • In discussion under § 300.135. ReÐSIP. 300.136ÐPersonnel standards: 1. Regs require States to use own highest requirements. Defs not limited to traditional cat- 1. Added to Reg as § 300.136(b)(2). egories. 2. State may require * * * good faith effort * * * shortages ...... Added to Reg as § 300.136(g)(2). 3. If State only 1 entry-level degree, modification of standard to ensure FAPE won't violate 3. Added to Reg as § 300.136(b)(4). (b)/(c). 300.138ÐParticipation in assessments: • Only small no. children need alternate assmts ...... • In discussion under § 300.138. 300.139ÐReports relating to assessments: • Re aggregate data ((b)), PA may also Rpt data other ways (e.g.,.. trendline * * *) ...... • In discussion under § 300.139. 300.142ÐMethods of ensuring services: 1. H.RptÐImport. of ensuring services Re E/non-ed agencies* * *Medicaid ...... 1. Added to Reg at § 300.142(b)(1)(ii). 2. Intent of (e) = services @ no cost-parents ...... 2. In discussion under § 300.142. 3. Pub Agency can pay certain pvt insur costs for parents ...... 3. Added to Reg at § 300.142(g). 4. If PA receives $ from insurers to return the $ ...... 4. Added to Reg at § 300.142(h)(2). 300.152ÐProhibition against commingling: • Assurance is satisfied by sep accounting system...... • Added to Reg as § 300.152(b). 300.185ÐMeeting the excess cost requirement: • LEA must spend certain minimum amount * * * Excess costs = costs of special ed that • In discussion under § 300.185. exceed minimum. 300.232ÐException to maintenance of effort: • H.RptÐVoluntary departure ReÐpersonnel paid at/ near topÐscale; guidelines to in- • Added to Reg as § 300.232(a)(2). voke exception. 300.234ÐSchoolwide programs: • Although funds may be combined, disabled children must still receive services re-IEP .... • Added to Reg at § 300.234(c). 200.241ÐTreatment of charter schools:

VerDate 03-MAR-99 17:45 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00265 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm01 PsN: 12MRR2 12670 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

ATTACHMENT 3.ÐDISPOSITION OF NPRM NOTES IN FINAL PART 300 AND 303 REGULATIONS 1ÐContinued [Note: Attachment 3 will not be codified in the Code of Federal Regulations]

I. List of notes by section in NPRM II. Disposition of notes in final regulations

• B-Regs that apply to pub schools also apply to charter schools; H.RptÐExpect full com- • In discussion under § 300.241. pliance.

Subpart C

300.300ÐProvision of FAPE: 1. FAPE Requirement applies to disabled children in school and those with less severe 1. In discussion under § 300.300. disabilities. 2. State must ensure child find fully implemented ...... 2. Added to Reg at § 300.300(a)(2). 3. Why age rangeÐchild find is greater than FAPE ...... 3. In discussion under § 300.300. 300.302ÐResidential placement: • Requirement applies to placements in St. schools ...... • In discussion under § 300.302. 300.303ÐProper functioning of hearing aids: • Statement from H. Rpt. on 1978 appropriation bill related to status of hearing aids ...... • In discussion under § 300.303. 300.304ÐFull educational opportunity goal: • S.Rpt (1975) on artsÐBrooklyn Museum: ...... • In discussion under § 300.304. 300.305ÐProgram options: • List not exhaustive ...... • In discussion under § 300.305. 300.307ÐPhysical education: • H.Rpt (142)ÐMust assure PE available to all HC ...... • In discussion under § 300.307. 300.309ÐExtended school year services: 1. LEA may not limit to particular categories or duration. All disabled children not entitled .. 1. Added to Reg at § 300.309(a)(3). 2. States may establish standards * * * Factors may consider = likelihood of regression ... 2. In discussion under § 300.309. 300.341ÐSEA Responsibility (ReÐIEPs): • Section applies-all public agencies, including other State agencies ...... • Added to Reg as § 300.341(b). 300.342ÐWhen IEPs must be in effect: 1. It is expected that IEPs will be implemented immediately after the meeting (with excep- 1. In discussion under § 300.342. tions). 2. RequirementsÐincarcerated youth apply 6±4±97 ...... 2. Deleted. 3. IEP vs IFSPÐwritten informed consent ...... 3. In discussion under § 300.342(c). 300.343ÐIEP meetings: • Offer of services within 60 daysÐconsent ...... • In discussion under § 300.343. 300.344ÐIEP Team: • Reg Ed teacher at IEP meeting = one who works with the child; if more than oneÐdes- • In discussion under § 300.344 ignate. 300.345ÐParent participation: • Parent notice ReÐbring others..procedure used = agency discretion * * * But keep • Added to Reg as § 300.345(b). record of efforts. 300.346ÐDevelopment; review, & revision of IEP: 1. Importance ReÐConsideration of special factors ...... 1. In discussion under § 300.346. 2. ReÐ``Deaf Students Educational Services'' (1992) ...... 2. In discussion under § 300.346. 3. IEP team and LEP students ...... 3. In discussion under § 300.346. 300.347ÐContent of IEP: 1. Import of transition services for students below 16 ...... 1. In discussion under § 300.347. 2. H.Rpt ReÐimport of general curriculum ...... 2. In discussion under § 300.347. 3. H.RptÐGen CurriculumÐlength of IEP vs adjustments ...... 3. In discussion under § 300.347. 4. H.RptÐTeaching methods not in IEP ...... 4. In discussion under § 300.347. 5. Reports to parents on Annual Goals vs Reg. Reports ...... 5. In discussion under § 300.347. 6. H.RptÐtransition service needs vs services ...... 6. In discussion under § 300.347. 7. OK for transition-needs/services below 14 and 16 ...... 7. In discussion under § 300.347. 300.350ÐIEPÐaccountability: • Public agency must make good faith effort; parents have right to complain ...... • Added to Reg as § 300.350(b). 300.360ÐUse of LEA allocation for direct services: • If LEA doesn't apply for Pt. B funds, SEA must use in LEA ...... • Added to Reg at § 300.360(b).

Subpart D

300.453ÐExpenditures: • LEAs may provide services beyond those required ...... • Added to Reg at § 300.453(d). 300.456ÐLocation of services: 1. ZobrestÐRe on-site services ...... 1. In discussion under § 300.456. 2. Transportation to from site * * * not from home ...... 2. Added to Reg at § 300.456(b)(1).

Subpart E

300.500ÐGen. Resp. of public agencies; definitions: • Parent consent, if revoked is not retroactive ...... • Added to Reg at § 300.500(b)(1)(iii). 300.502ÐIndependent educational evaluation: 1. Parent not required to specify areas of disagreement ...... 1. Added to Reg at § 300.501(b). 2. Pub agenciesÐshould make info on IEEs widely available; may not require parent-evals 2. Added to Reg at § 300.502(a)(2). meet all criteria.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00266 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations 12671

ATTACHMENT 3.ÐDISPOSITION OF NPRM NOTES IN FINAL PART 300 AND 303 REGULATIONS 1ÐContinued [Note: Attachment 3 will not be codified in the Code of Federal Regulations]

I. List of notes by section in NPRM II. Disposition of notes in final regulations

300.505ÐParental consent: 1. Pub. agency may use due process to override refusal, unless doing soÐinconsistent w/ 1. In discussion under § 300.503. St law. 2. PA must provide servs in any area not in dispute; if necÐFAPEÐuse override; may 2. In discussion under § 300.503. recons proposal. 3. If parents refuse-reeval needed for servs, & St law prevnts override-reeval, PA may 3. In discussion under § 300.503. cease servs. 300.506 Mediation: 1. H. RepÐIf mediator not selected randomly Pub. agency and parents both must select ... 1. Added to Reg at § 300.506(b)(2)(ii). 2. H. RepÐPreserve parental access RtsÐFERPA; confidentiality pledge ...... 2. In discussion under § 300.506. 300.507ÐImpartial due process hearing; parent notice; disclosure: 1. Determination of whether hearing request is based on new info must be made by HO ... 1. In discussion under § 300.507. 2. H. Rep. ReÐAttorneys' fees; and the value of the parent notice requirement ...... 2. In discussion under § 300.507. 300.510ÐFinality of decision; appeal; impartial review: 1. SEA may conduct review directly or thru another agency; but remains response for final 1. In discussion under § 300.510. decision. 2. All parties have right to counsel; if Rev Officer holds a hearing, other rights in 300.509 2. In discussion under § 300.510. apply. 300.513ÐAttorneys' fees: • A State may enact a law permitting HOs to award fees ...... • In discussion under § 300.513. 300.514ÐChild's status during proceedings: • Public agency may use normal procedures for dealing with children who are endanger- • In discussion under § 300.514. ing themselves or others. 300.520ÐAuthority of School personnel: 1. Removal for 10 days or lessÐnot a chg in placmt; a series of removals that total +10 1. In discussion under § 300.520. days may be. 2. PA need not conduct review in (b), but encouraged Ck ifÐserves in accord w/IEP..or 2. In discussion under § 300.520. addressed. 300.523ÐManifestation determination review: 1. H.RptÐEx of manifestation vs not * * * But not intendedÐ base finding on tech viola- 1. In discussion under § 300.523. tion-IEP. 2. If manifestationÐLEA must correct any deficiencies found ...... 2. Added to Reg at § 300.523(f). 300.524ÐDetermination that behavior not a manifestation of disability: • During pendencyÐchild remains in current placmt or placmt under 300.526, whichever • In discussion under § 300.524. applies. 300.526ÐPlacement during appeals: • An LEA may seek subsequent expedited hearings if child still dangerous & issue not re- • Added to Reg as § 300.526(c)(4). solved. 300.532ÐEvaluation procedures: 1. Re LEPÐaccurate assmt of child's lang proficency ...... 1. In discussion under § 300.532. 2. If no one at sch Re-LEP, contact LEAs, IHEs ...... 2. In discussion under § 300.532. 3. If assmt not done under standard conditions, include in eval Rpt. Info needed by team .. 3. Added to Reg as § 300.532(a)(2). 300.533ÐDetermination of needed evaluation data: • Purpose of review by a group; composition of team will vary depending on nature or dis- • In discussion under § 300.533. ability. 300.535ÐProcedures for determining eligibility and placement: • All eval sources not required for each child ...... • In discussion under § 300.535. 300.551ÐContinuum of alternative placements: • Home instruction usually only for limited No. children (medically fragile) ...... • In discussion under § 300.551. 300.552ÐPlacements: 1. Group in (a)(1) could also be IEP teamÐif .344 ...... 1. In discussion under § 300.552. 2. Main rule in LRE = indiv decisions + alternate placmts; applicability to preschool chil- 2. Added to Reg at § 300.552. dren. 3. If IEP team considers-provides for behavioral interventions * * * many disruptive chil- 3. In discussion under § 300.552. dren-Reg cl. 300.553ÐNonacademic settings: • Section taken from 504 Regs ...... • In discussion under § 300.553. 300.554ÐChildren in public or private institutions: • LRE provisions apply to Children in public and private institutions ...... • In discussion under § 300.554. 300.573ÐDestruction of information: • Info may be kept forever unless parents reject; (Why records are important ** *) ...... • In discussion under § 300.573. 300.574ÐChildren's rights: 1. Under FERPA Regs, Rts transfer at age 18 ...... 1. Added to Reg at § 300.574(b). 2. If Rts transfer re-.517, Rts re Ed-records also transfer; but public agency must give 615 2. Added to Reg at § 300.574(c). notice to parents and student. 300.587ÐEnforcement: • Other enforcement actions include cease and desist order * * * and a compliance • In discussion under § 300.587. agreement.

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00267 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2 12672 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

ATTACHMENT 3.ÐDISPOSITION OF NPRM NOTES IN FINAL PART 300 AND 303 REGULATIONS 1ÐContinued [Note: Attachment 3 will not be codified in the Code of Federal Regulations]

I. List of notes by section in NPRM II. Disposition of notes in final regulations

Subpart F

300.600ÐResponsibility for all educational programs: • Provision = Congressional desireÐcentral point of contact. S.Rpt (1975) *** Options • In discussion under § 300.600. 300.623ÐAmount required for subgrants to LEAs': • Amt. required for subgrants will varyÐyr-to-yr. $ for subgrants 1 yr become flow-thru in • In discussion under § 300.623. next. 300.624ÐState discretion in awarding subgrants: • Purpose of subgrants to LEAsÐto provide $ SEA can direct Re needsÐcan't address • In discussion under § 300.624. Re-formula-$. 300.650ÐEstablishment of Advisory panels: • Panel must advise on students in Adult prisons ...... • Added to Reg at § 300.652(b). 300.660ÐAdoption of State complaint procedures: • SEA may award compensory damages Re-denial of FAPE ...... • Added to Reg at § 300.660(b). 300.661ÐMinimum State complaint procedures: 1. If complaint also subject of a hearing, must set aside any part addressed-hearing; but 1. Added to Reg at § 300.661(c)(1). resolve the rest. 2. If issue in complaint already decided in a hearing (same parties), H-decision = binding .. 2. Added to Reg at § 300.661(c)(2). 300.662ÐFiling a complaint: • SEA must resolve complaint, even if it is filed by indiv-organization in another State ...... • Added to Reg at § 300.662(a).

Subpart G

300.712ÐAllocations to LEAs: • Re-85%Ðuse best data available; new data not needed-pvt schs. Re-15%Ðuse best • Added to Reg at § 300.712. (Examples). 300.750ÐAnnual report of children served-report requirement: • ReportÐsolely for allocation purposes; count may differ from children who receive FAPE • In discussion under § 300.750. 300.753ÐAnnual report of children served-criteria for counting children: 1. State may count children in Head Start if Sp Ed ...... 1. Covered by reg. note deleted. 2. Criteria related to counting children in private schools and certain Indian children ...... 2. Covered by reg. note deleted. 300.754ÐAnnual report of children served-other responsibilities of SEA: • Data are not to go to Secretary in personally identifiable form ...... • In discussion under § 300.754.

Part 303

303.19ÐParent: • Definition: examples of grandparent, stepparent ...... • Added to Reg in § 303.19(a)(3). 303.510ÐAdopting Complaint Procedures: 1. Complaints can be against any public agency or private provider; these procedures are 1. Public/private added to Reg in in addition to other rights. § 303.510(a)(1); ``other rights'' in discussion under § 303.512. 2. Compensatory services possible ...... 2. Added to Reg in § 303.510(b). 303.511ÐAn organization or individual may file a complaint: • Complaints from out-of-state OK ...... • Added to Reg in § 303.510(a)(1). 303.512ÐMinimum State complaint procedures: 1. Same issues in complaint and due process hearing ...... 1. Added to Reg in § 303.512(c)(1). 2. Issues previously decided in due process hearing ...... 2. Added to Reg in § 303.512(c)(2). 303.520ÐPolicies related to payment for services: 1. Use of private insurance must be voluntary ...... 1. Deleted. 2. State can use Part C funds to pay insurance costs ...... 2. Deleted. 3. Insurance reimbursements not treated as program income; spending Federal reimburse- 3. ``Program income'' added to discussion ments doesn't violate nonsupplanting rule. under § 303.512; ``nonsupplanting'' added to Reg in § 303.512(d)(2). 1 All notes have been removed as notes from the regulations. The substance of certain notes has been added to the text of the regulation, or included in the Notice of Interpretation on IEPs in ``Appendix A.'' A description of each of these notes (and most of the other notes in the NPRM) is included in the ``discussion'' under the Analysis of Comments (Attachment 1 to the final regulations). Column II, above, describes the primary action taken with each note (e.g., (1) ``Added to Reg ** *'' (or to Appendix A); (2) ``In discussion under ** *;'' or ``Deleted.'')

[FR Doc. 99–5754 Filed 3–11–99; 8:45 am] BILLING CODE 4000±01±P

VerDate 03-MAR-99 12:38 Mar 11, 1999 Jkt 183247 PO 00000 Frm 00268 Fmt 4701 Sfmt 4700 E:\FR\FM\12MRR2.XXX pfrm07 PsN: 12MRR2