Provision of Early Intervention Services to Eligible Infants and Toddlers With Disabilities and Their Families, and Special Education and Related Services to Children With Disabilities Within the Section 6 School Arrangements

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 80

Provision of Early Intervention Services to Eligible Infants and

Toddlers With Disabilities and Their Families, and Special Education

and Related Services to Children With Disabilities Within the Section 6

School Arrangements

agency: Office of the Secretary, DoD.

action: Final rule.

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summary: Guidance is required for the Department of Defense (DoD)

Section 6 School Arrangements and the Military Services pursuant to

Section 6 of the Impact Aid Law of 1950, as amended (20 U.S.C. 241), as

amended by Pub. L. 102-119, ``Individuals with Disabilities Act (IDEA)

Amendments of 1991.'' By statute, DoD must provide all substantive

rights, protections and procedural safeguards, including due process

procedures of IDEA, in the DoD Section 6 School Arrangements. This

final rule provides guidance outlining the procedures for the provision

of early intervention services for eligible children with disabilities

ages birth to 2 (inclusive) and a free appropriate education and

related services, for children with disabilities ages 3 to 21

(inclusive) enrolled in the DoD Section 6 School Arrangements.

effective date: July 25, 1994.

for further information contact: Dr. Hector O. Nevarez, Director,

Section 6 Schools, on (703) 696-4373/4361.

SUPPLEMENTARY INFORMATION:

Background

On October 6, 1993, 58 FR 51996, the Office of the Secretary of

Defense published an interim final rule (32 CFR part 80) that

implemented the IDEA, as amended, in the Section 6 Schools and for

eligible infants and toddlers. Today's final action, except for

administrative amendments for clarity, does not differ from the interim

final rule. This final rule reflects the change of the title of the

Department of Defense organization formerly known as the Directorate

for Industrial Security Clearance Review (DISCR). This organization is

now named the Defense Office of Hearings and Appeals (DOHA).

Comments

Two comments were received from the public on the interim final

rule.

1. Comment: State reason for release of records and set a time

limit-usually six months from the date of signature that the release is

signed.

Reply: The reason for release of records will be apparent in each

case. Therefore, this recommendation has not been accepted. The final

rule requires that the student activity for which the parental consent

is being sought be specified. This necessarily involves stating the

reason for parental consent. Because the final rule further provides

that parental consent may be revoked at any time, a fixed time of

expiration for that consent is unnecessary.

2. Comment: Why can't standardized test be used as part of the

evaluation?

Reply: The final rule does not preclude the use of standardized

tests. Under Sec. 80.3(n), ``basic tests'' do not qualify as acceptable

evaluative instruments. Standardized tests, however, are not included

in the category of ``basic tests.''

Rulemaking Analyses

Executive Order 12866, ``Regulatory Planning and Review''

It has been determined that 32 CFR part 80 is not a significant

regulation action. This final rule does not:

(1) Have an annual effect of the economy of $100 million or more or

adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or State, local or tribal governments or communities;

(2) Cause a serious inconsistency or other wise interfere with an

action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants,

user fees, or loan programs or the rights and obligations of recipients

thereof; or

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

this Executive Order.

Public Law 96-354, ``Regulatory Flexibility Act''

It has been determined that this final rule is not subject to the

Regulatory Flexibility Act (5 U.S.C. 601) because it will not have a

significant economic impact on a substantial number of small entities.

The primary financial effect of the final rule will be a reduction in

administrative costs and other burdens resulting from the

simplification and clarification of policies.

Public Law 96-511, ``Paperwork Reduction Act''

It has been determined that 32 CFR part 80 does not impose any

reporting or recordkeeping requirements under the Paperwork Reduction

Act of 1980 (44 U.S.C. 3501-3520).

This final rule is issued to provide guidance, required by statute,

with respect to (1) the implementation of the IDEA, as amended, in the

DoD Section 6 Schools and (2) the provision of early intervention

services to infants and toddlers who, but for their age, would be

entitled to enroll in such Section 6 Schools. Section 6 School

Arrangements are conducted by DoD pursuant to section 6 of Pub. L. 81-

874, as amended, 20 U.S.C. 241, and Section 505(c) of Pub. L. 97-31, 20

U.S.C. 241 note.

List of Subjects in 32 CFR Part 80

Education of individuals with disabilities, Individuals with

disabilities, Infants and children.

Accordingly, title 32, chapter I, subchapter C, is amended to

revise part 80 to read as follows:

PART 80--PROVISION OF EARLY INTERVENTION SERVICES TO ELIGIBLE

INFANTS AND TODDLERS WITH DISABILITIES AND THEIR FAMILIES, AND

SPECIAL EDUCATION CHILDREN WITH DISABILITIES WITHIN THE SECTION 6

SCHOOL ARRANGEMENTS

Sec.

80.1 Purpose.

80.2 Applicability and scope.

80.3 Definitions.

80.4 Policy.

80.5 Responsibilities.

80.6 Procedures.

Appendix A to Part 80--Procedures for the Provision of Early

Intervention Services for Infants and Toddlers With Disabilities, Ages

0-2 (Inclusive), and Their Families

Appendix B to Part 80--Procedures for Special Educational Programs

(Including Related Services) and for Preschool Children and Children

With Disabilities (3-21 Years Inclusive)

Appendix C to Part 80--Hearing Procedures

Authority: 20 U.S.C. 1400 et seq.; 20 U.S.C. 241; 20 U.S.C. 241

note.

Sec. 80.1 Purpose.

This part:

(a) Establishes policies and procedures for the provision of early

intervention services to infants and toddlers with disabilities (birth

to age 2 inclusive) and their families, and special education and

related services to children with disabilities (ages 3-21 inclusive)

entitled to receive special educational instruction or early

intervention services from the Department of Defense under Pub. L. 81-

874, sec. 6, as amended; Pub. L. 97-35, sec. 505(c); the Individuals

with Disabilities Education Act, Pub. L. 94-142, as amended; Pub. L.

102-119, sec. 23; and consistent with 32 CFR parts 285 and 310, and the

Federal Rules of Civil Procedures (28 U.S.C.).

(b) Establishes policy, assigns responsibilities, and prescribes

procedures for:

(1) Implementation of a comprehensive, multidisciplinary program of

early intervention services for infants and toddlers ages birth through

2 years (inclusive) with disabilities and their families.

(2) Provision of a free, appropriate education including special

education and related services for preschool children with disabilities

and children with disabilities enrolled in the Department of Defense

Section 6 School Arrangements.

(c) Establishes a Domestic Advisory Panel (DAP) on Early

Intervention and Education for Infants, Toddlers, Preschool Children

and Children with Disabilities, and a DoD Coordinating Committee on

Domestic Early Intervention, Special Education and Related Services.

(d) Authorizes the publication of DoD Regulations and Manuals,

consistent with DoD 5025.1-M,\1\ and DoD forms consistent with DoD

5000.12-M\2\ and DoD Directive 8910.1\3\ to implement this part.

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\1\Copies may be obtained, at cost, from the National Technical

Information Service, 5285 Port Royal Road, Springfield, VA 22161.

\2\See footnote 1 to Sec. 80.1(c).

\3\See footnote 1 to Sec. 80.1(c).

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Sec. 80.2 Applicability and scope.

This part:

(a) Applies to the Office of the Secretary of Defense, the Military

Departments, the Chairman of the Joint Chiefs of Staff and the Joint

Staff, the Unified and Specified Commands, the Inspector General of the

Department of Defense, the Defense Agencies, and the DoD Field Agencies

(hereafter referred to collectively as ``the DoD Components'').

(b) Encompasses infants, toddlers, preschool children, and children

receiving or entitled to receive early intervention services or special

educational instruction from the DoD on installations with Section 6

School Arrangements, and the parents of those individuals with

disabilities.

(c) Applies only to schools operated by the Department of Defense

within the Continental United States, Alaska, Hawaii, Puerto Rico, Wake

Island, Guam, American Samoa, the Northern Mariana Islands, and the

Virgin Islands.

Sec. 80.3 Definitions.

(a) Assistive technology device. Any item, piece of equipment, or

product system, whether acquired commercially or off the shelf,

modified, or customized, that is used to increase, maintain, or improve

functional capabilities of individuals with disabilities.

(b) Assistive technology service. Any service that directly assists

an individual with a disability in the selection, acquisition, or use

of an assistive technology device. This term includes:

(1) Evaluating the needs of an individual with a disability,

including a functional evaluation of the individual in the individual's

customary environment.

(2) Purchasing, leasing, or otherwise providing for the acquisition

of assistive technology devices by individuals with disabilities.

(3) Selecting designing, fitting, customizing, adapting, applying,

maintaining, repairing, or replacing of assistive technology devices.

(4) Coordinating and using other therapies, interventions, or

services with assistive technology devices, such as those associated

with existing educational and rehabilitative plans and programs.

(5) Training or technical assistance for an individual with

disabilities, or, where appropriate, the family of an individual with

disabilities.

(6) Training or technical assistance for professionals (including

individuals providing educational rehabilitative services), employers,

or other individuals who provide services to, employ, or are otherwise

substantially involved in the major life functions of an individual

with a disability.

(c) Attention deficit disorder (ADD). As used to define students,

encompasses attention-deficit hyperactivity disorder and attention

deficit disorder without hyperactivity. The essential features of this

disorder are developmentally inappropriate degrees of inattention,

impulsiveness, and hyperactivity.

(1) A diagnosis of ADD may be made only after the child is

evaluated by appropriate medical personnel, and evaluation procedures

set forth in this part (appendix B to this part) are followed.

(2) A diagnosis of ADD, in and of itself, does not mean that a

child requires special education; it is possible that a child diagnosed

with ADD, as the only finding, can have his or her educational needs

met within the regular education setting.

(3) For a child with ADD to be eligible for special education, the

Case Study Committee, with assistance from the medical personnel

conducting the evaluation, must then make a determination that the ADD

is a chronic or acute health problem that results in limited alertness,

which adversely affects educational performance. Children with ADD who

are eligible for special education and medically related services will

qualify for services under ``Other Health Impaired'' as described in

Criterion A, paragraph (h)(1) of this section.

(d) Autism. A developmental disability significantly affecting

verbal and non-verbal communication and social interaction generally

evident before age 3 that adversely affects educational performance.

Characteristics of autism include irregularities and impairments in

communication, engagement in repetitive activities and stereotyped

movements, resistance to environmental change or change in daily

routines, and unusual responses to sensory experiences. The term does

not include children with characteristics of the disability of serious

emotional disturbance.

(e) Case Study Committee (CSC). A school-based committee that

determines a child's eligibility for special education, develops and

reviews a child's individualized education program (IEP), and

determines appropriate placement in the least restrictive environment.

A CSC is uniquely composed for each child. Participants on a CSC must

include:

(1) The designated representative of the Section 6 School

Arrangement, who is qualified to supervise the provision of special

education. Such representative may not be the child's special education

teacher.

(2) One, or more, of the child's regular education teachers, if

appropriate.

(3) A special education teacher.

(4) One, or both, of the child's parents.

(5) The child, if appropriate.

(6) A member of the evaluation team or another person knowledgeable

about the evaluation procedures used with the child.

(7) Other individuals, at the discretion of the parent or the

Section 6 School Arrangement, who may have pertinent information.

(f) Child-find. The ongoing process used by the Military Services

and a Section 6 School Arrangement to seek and identify children (from

birth to 21 years of age) who show indications that they might be in

need of early intervention services or special education and related

services. Child-find activities include the dissemination of

information to the public and identification, screening, and referral

procedures.

(g) Children with disabilities ages 5-21 (inclusive). Those

children ages 5-21 years (inclusive), evaluated in accordance with this

part, who are in need of special education as determined by a CSC and

who have not been graduated from a high school or who have not

completed the requirements for a General Education Diploma. The terms

``child'' and ``student'' may also be used to refer to this population.

The student must be determined eligible under one of the following four

categories:

(1) Criterion A. The educational performance of the student is

adversely affected, as determined by the CSC, by a physical impairment;

visual impairment including blindness; hearing impairment including

deafness; orthopedic impairment; or other health impairment, including

ADD, when the condition is a chronic or acute health problem that

results in limited alertness; autism; and traumatic brain injury

requiring environmental and/or academic modifications.

(2) Criterion B. A student who manifests a psychoemotional

condition that is the primary cause of educational difficulties; a

student who exhibits maladaptive behavior to a marked degree and over a

long period of time that interferes with skill attainment, classroom

functioning or performance, social-emotional condition, and who as a

result requires special education. The term does not usually include a

student whose difficulties are primarily the result of:

(i) Intellectual deficit;

(ii) Sensory or physical impairment;

(iii) Attention deficit hyperactivity disorder;

(iv) Antisocial behavior;

(v) Parent-child or family problems;

(vi) Disruptive behavior disorders;

(vii) Adjustment disorders;

(viii) Interpersonal or life circumstance problems; or

(ix) Other problems that are not the result of a severe emotional

disorder.

(3) Criterion C. The educational performance of the student is

adversely affected, as determined by the CSC, by a speech and/or

language impairment.

(4) Criterion D. The measured academic achievement of the student

in math, reading, or language is determined by the CSC to be adversely

affected by underlying disabilities (including mental retardation and

specific learning disability) including either an intellectual deficit

or an information processing deficit.

(5) Criterion E. A child, 0-5 inclusive, whose functioning level as

determined by the CSC, is developmentally delayed and would qualify for

special education and related services as determined by this

regulation.

(h) Consent. This term means that:

(1) The parent of an infant, toddler, child, or preschool child

with a disability has been fully informed, in his or her native

language, or in another mode of communication, of all information

relevant to the activity for which permission is sought.

(2) The parent understands and agrees in writing to the

implementation of the activity for which his or her permission is

sought. The writing must describe that activity, list the child's

records that will be released and to whom, and acknowledge that the

parent understands consent is voluntary and may be prospectively

revoked at any time.

(3) The parent of an infant, toddler, preschool child or child must

consent to the release of records. The request for permission must

describe that activity, list each individual's records that will be

released and to whom, and acknowledge that the parent understands that

consent is voluntary and may be prospectively revoked at any time.

(4) The written consent of a parent of an infant or toddler with a

disability is necessary for implementation of early intervention

services described in the individualized family service plan (IFSP). If

such parent does not provide consent with respect to a particular early

intervention service, then the early intervention services for which

consent is obtained shall be provided.

(i) Deaf. A hearing loss or deficit so severe that the child is

impaired in processing linguistic information through hearing, with or

without amplification, to the extent that his or her educational

performance is adversely affected.

(j) Deaf-blind. Concomitant hearing and visual impairments, the

combination of which causes such severe communication and other

developmental and educational problems that they cannot be accommodated

in special education programs solely for children with deafness or

children with blindness.

(k) Developmental delay. A significant discrepancy in the actual

functioning of an infant or toddler when compared with the functioning

of a nondisabled infant or toddler of the same chronological age in any

of the following areas of development: Physical development, cognitive

development, communication development, social or emotional

development, and adaptive development as measured using standardized

evaluation instruments and confirmed by clinical observation and

judgment. A significant discrepancy exists when the one area of

development is delayed by 25 percent or 2 standard deviations or more

below the mean or when two areas of development are each delayed by 20

percent or 1\1/2\ standard deviations or more below the mean.

(Chronological age should be corrected for prematurity until 24 months

of age.)

(l) Early intervention service coordination services. Case

management services that include integration and oversight of the

scheduling and accomplishment of evaluation and delivery of early

intervention services to an infant or toddler with a disability and his

or her family.

(m) Early intervention services. Developmental services that:

(1) Are provided under the supervision of a military medical

department.

(2) Are provided using Military Health Service System and community

resources.

(i) Evaluation IFSP development and revision, and service

coordination services are provided at no cost to the infant's or

toddler's parents.

(ii) Incidental fees (e.g., child care fees) that are normally

charged to infants, toddlers, and children without disabilities or

their parents may be charged.

(3) Are designed to meet the developmental needs of an infant or

toddler with a disability in any one or more of the following areas:

Physical development, cognitive development, communication development,

social or emotional development, or adaptive development.

(4) Meet the standards developed by the Assistant Secretary of

Defense for Health Affairs (ASD(HA)).

(5) Include the following services: Family training, counseling,

and home visits; special instruction; speech pathology and audiology;

occupational therapy; physical therapy; psychological services; early

intervention program coordination services; medical services only for

diagnostic or evaluation purposes; early identification, screening, and

assessment services; vision services; and social work services. Also

included are assistive technology devices and assistive technology

services; health services necessary to enable the infant or toddler to

benefit from the above early intervention services; and transportation

and related costs that are necessary to enable an infant or toddler and

the infant's or toddler's family to receive early intervention

services.

(6) Are provided by qualified personnel, including: Special

educators; speech and language pathologists and audiologists;

occupational therapists; physical therapists; psychologists; social

workers; nurses' nutritionists; family therapists; orientation and

mobility specialists; and pediatricians and other physicians.

(7) To the maximum extent appropriate, are provided in natural

environments, including the home and community settings in which

infants and toddlers without disabilities participate.

(8) Are provided in conformity with an IFSP.

(n) Evaluation. Procedures used to determine whether an individual

(birth through 21 inclusive) has a disability under this part and the

nature and extent of the early intervention services and special

education and related services that the individual needs. These

procedures must be used selectively with an individual and may not

include basic tests administered to, or used with, all infants,

toddlers, preschool children or children in a school, grade, class,

program, or other grouping.

(o) Family training, counseling, and home visits. Services

provided, as appropriate, by social workers, psychologists, and other

qualified personnel to assist the family of an infant or toddler

eligible for early intervention services in understanding the special

needs of the child and enhancing the infant or toddler's development.

(p) Free appropriate public education. Special education and

related services for children ages 3-21 years (inclusive) that:

(1) Are provided at no cost (except as provided in paragraph

(xx)(1) of this section, to parents or child with a disability and are

under the general supervision and direction of a Section 6 School

Arrangement.

(2) Are provided at an appropriate preschool, elementary, or

secondary school.

(3) Are provided in conformity with an Individualized Education

Program.

(4) Meet the requirements of this part.

(q) Frequency and intensity. The number of days or sessions that a

service will be provided, the length of time that the service is

provided during each session, whether the service is provided during

each session, and whether the service is provided on an individual or

group basis.

(r) Health services. Services necessary to enable an infant or

toddler, to benefit from the other early intervention services under

this part during the time that the infant or toddler is receiving the

other early intervention services. The term includes:

(1) Such services as clean intermittent catheterization,

tracheostomy care, tube feeding, the changing of dressings or osteotomy

collection bags, and other health services.

(2) Consultation by physicians with other service providers on the

special health care needs of infants and toddlers with disabilities

that will need to be addressed in the course of providing other early

intervention services.

(3) The term does not include the following:

(i) Services that are surgical in nature or purely medical in

nature.

(ii) Devices necessary to control or treat a medical condition.

(iii) Medical or health services that are routinely recommended for

all infants or toddlers.

(s) Hearing impairment. A hearing loss, whether permanent or

fluctuating, that adversely affects an infant's, toddler's, preschool

child's, or child's educational performance.

(t) High probability for developmental delay. An infant or toddler

with a medical condition that places him or her at substantial risk of

evidencing a developmental delay before the age of 5 years without the

benefit of early intervention services.

(u) Include; such as. Not all the possible items are covered,

whether like or unlike the ones named.

(v) Independent evaluation. An evaluation conducted by a qualified

examiner who is not employed by the DoD Section 6 Schools.

(w) Individualized education program (IEP). A written statement for

a preschool child or child with a disability (ages 3-21 years

inclusive) developed and implemented in accordance with this part

(appendix B to this part).

(x) Individualized family service plan (IFSP). A written statement

for an infant or toddler with a disability and his or her family that

is based on a multidisciplinary assessment of the unique needs of the

infant or toddler and concerns and the priorities of the family, and an

identification of the services appropriate to meet such needs,

concerns, and priorities.

(y) Individuals with disabilities. Infants and toddlers with

disabilities, preschool children with disabilities, and children with

disabilities, collectively, ages birth to 21 years (inclusive) who are

either entitled to enroll in a Section 6 School Arrangement or would,

but for their age, be so entitled.

(z) Infants and toddlers with disabilities. Individuals from birth

to age 2 years (inclusive), who need early intervention services

because they:

(1) Are experiencing a developmental delay, as measured by

appropriate diagnostic instruments and procedures, of 25 percent (or 2

standard deviations below the mean), in one or more areas, or 20

percent (or 1\1/2\ standard deviations below the mean), in two or more

of the following areas of development: Cognitive, physical,

communication, social or emotional, or adaptive development.

(2) Are at-risk for a developmental delay; i.e., have a diagnosed

physical or mental condition that has a high probability of resulting

in developmental delay; e.g., chromosomal disorders and genetic

syndromes.

(aa) Intercomponent. Cooperation among the DoD Components and

programs so that coordination and integration of services to

individuals with disabilities and their families occur.

(bb) Medically related services. (1) Medical services (as defined

in paragraph (cc) of this section) and those services provided under

professional medical supervision that are required by a CSC either to

determine a student's eligibility for special education or, if the

student is eligible, the special education and related services

required by the student under this part in accordance with 32 CFR part

345.

(2) Provision of either direct or indirect services listed on an

IEP as necessary for the student to benefit from the educational

curriculum. These services may include: Medical; social work; community

health nursing; dietary; psychiatric diagnosis; evaluation, and follow

up; occupational therapy; physical therapy; audiology; ophthalmology;

and psychological testing and therapy.

(cc) Medical services. Those evaluative, diagnostic, and

supervisory services provided by a licensed and credentialed physician

to assist CSCs and to implement IEPs. Medical services include

diagnosis, evaluation, and medical supervision of related services that

by statute, regulation, or professional tradition are the

responsibility of a licensed and credentialed physician.

(dd) Mental retardation. Significantly subaverage general

intellectual functioning, existing concurrently with deficits in

adaptive behavior and manifested during the developmental period, that

adversely affects a preschool child's or child's educational

performance.

(ee) Multidisciplinary. The involvement of two or more disciplines

or professions in the provision of integrated and coordinated services,

including evaluation and assessment activities, and development of an

IFSP or IEP.

(ff) Native language. When used with reference to an individual of

limited English proficiency, the language normally used by such

individuals, or in the case of an infant, toddler, preschool child or

child, the language normally used by the parent of the infant, toddler,

preschool child or child.

(gg) Natural environments. Settings that are natural or normal for

the infant or toddler's same age peers who have no disability.

(hh) Non-section 6 school arrangement or facility. A public or

private school or other institution not operated in accordance with 32

CFR part 345. This term includes Section 6 special contractual

arrangements.

(ii) Nutrition services. These services include:

(1) Conducting individual assessments in nutritional history and

dietary intake; anthropometric, biochemical and clinical variables;

feeding skills and feeding problems; and food habits and food

preferences.

(2) Developing and monitoring appropriate plans to address the

nutritional needs of infants and toddlers eligible for early

intervention services.

(3) Making referrals to appropriate community resources to carry

out nutrition goals.

(jj) Orthopedic impairment. A severe physical impairment that

adversely affects a child's educational performance. The term includes

congenital impairments (such as club foot and absence of some member),

impairments caused by disease (such as poliomyelitis and bone

tuberculosis), and impairments from other causes such as cerebral

palsy, amputations, and fractures or burns causing contracture.

(kk) Other health impairment. Having an autistic condition that is

manifested by severe communication and other developmental and

educational problems; or having limited strength, vitality, or

alertness due to chronic or acute health problems that adversely affect

a child's educational performance as determined by the CSC, such as:

ADD, heart condition, tuberculosis, rheumatic fever, nephritis, asthma,

sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, and

diabetes.

(ll) Parent. The biological father or mother of a child; a person

who, by order of a court of competent jurisdiction, has been declared

the father or mother of a child by adoption; the legal guardian of a

child; or a person in whose household a child resides, provided that

such person stands in loco parentis to that child and contributes at

least one-half of the child's support.

(mm) Personally identifiable information. Information that includes

the name of the infant, toddler, preschool child, child, parent or

other family member; the home address of the infant, toddler, preschool

child, child, parent or other family member; another personal

identifier, such as the infant's, toddler's, preschool child's,

child's, parent's or other family member's social security number; or a

list of personal characteristics or other information that would make

it possible to identify the infant, toddler, preschool child, child,

parent, or other family member with reasonable certainty.

(nn) Preschool children with disabilities. These are students, ages

3-5 years (inclusive), who need special education services because

they:

(1) Are experiencing developmental delays, as measured by

appropriate diagnostic instruments and procedures in one or more of the

following areas: Cognitive development, physical development,

communication development, social or emotional development, and

adaptive development; and

(2) Who, by reason thereof, need special education and related

services.

(oo) Primary referral source. The DoD Components, including child

care centers, pediatric clinics, and parents that suspect an infant,

toddler, preschool child or child has a disability and bring that

infant, toddler, preschool child or child to the attention of the Early

Intervention Program or school CSC.

(pp) Public awareness program. Activities focusing on early

identification of infants and toddlers with disabilities, including the

preparation and dissemination by the military medical department to all

primary referral sources of information materials for parents on the

availability of early intervention services. Also includes procedures

for determining the extent to which primary referral sources within the

Department of Defense, especially within DoD medical treatment

facilities, and physicians disseminate information on the availability

of early intervention services to parents of infants or toddlers with

disabilities.

(qq) Qualified. With respect to instructional personnel, a person

who holds at a minimum a current and applicable teaching certificate

from any of the 50 States, Puerto Rico, or the District of Columbia, or

has met other pertinent requirements in the areas in which he or she is

providing special education or related services not of a medical nature

to children with disabilities. Providers of early intervention services

and medically related services must meet standards established by the

ASD(HA).

(rr) Related services. This includes transportation, and such

developmental, corrective, and other supportive services (including

speech pathology and audiology; psychological services; physical and

occupational therapy; recreation, including therapeutic recreation and

social work services; and medical and counseling services), including

rehabilitation counseling (except that such medical services shall be

for diagnostic and evaluative purposes only) as may be required to

assist a child with a disability to benefit from special education, and

includes the early identification and assessment of disabling

conditions in preschool children or children. The following list of

related services is not exhaustive and may include other developmental,

corrective, or supportive services (such as clean intermittent

catheterization), if they are required to assist a child with a

disability to benefit from special education, as determined by a CSC.

(1) Audiology. This term includes:

(i) Audiological, diagnostic, and prescriptive services provided by

audiologists who have a Certificate of Clinical Competence--Audiology

(CCC-A) and pediatric experience. Audiology shall not include speech

therapy.

(ii) Identification of children with hearing loss.

(iii) Determination of the range, nature, and degree of hearing

loss, including referral for medical or other professional attention

designed to ameliorate or correct that loss.

(iv) Provision of ameliorative and corrective activities, including

language and auditory training, speech-reading (lip-reading), hearing

evaluation, speech conservation, the recommendation of amplification

devices, and other aural rehabilitation services.

(v) Counseling and guidance of children, parents, and service

providers regarding hearing loss.

(vi) Determination of the child's need for group and individual

amplification, selecting and fitting an appropriate aid, and evaluating

the effectiveness of amplification.

(2) Counseling services. Services provided by qualified social

workers, psychologists, guidance counselors, or other qualified

personnel to help a preschool child or child with a disability to

benefit from special education.

(3) Early identification. The implementation of a formal plan for

identifying a disability as early as possible in the individual's life.

(4) Medical services. Those evaluative, diagnostic, and supervisory

services provided by a licensed and credentialed physician to assist

CSCs in determining whether a child has a medically related disability

condition that results in the child's need for special education and

related services and to implement IEPs. Medical services include

diagnosis, evaluation, and medical supervision of related services

that, by statute, regulation, or professional tradition, are the

responsibility of a licensed and credentialed physician.

(5) Occupational therapy. Therapy that provides developmental

evaluations and treatment programs using selected tasks to restore,

reinforce, or enhance functional performance. It addresses the quality

and level of functions in areas such as behavior, motor coordination,

spatial orientation; visual motor and sensory integration; and general

activities of daily living. This therapy, which is conducted or

supervised by a qualified occupational therapist, provides training and

guidance in using special equipment to improve the patient's

functioning in skills of daily living, work, and study.

(6) Parent counseling and training. Assisting parents in

understanding the special needs of their preschool child or child and

providing parents with information about child development and special

education.

(7) Physical therapy. Therapy that provides evaluations and

treatment programs using exercise, modalities, and adaptive equipment

to restore, reinforce, or enhance motor performance. It focuses on the

quality of movement, reflex development, range of motion, muscle

strength, gait, and gross motor development, seeking to decrease

abnormal movement and posture while facilitating normal movement and

equilibrium reactions. The therapy, which is conducted by a qualified

physical therapist, provides for measurement and training in the use of

adaptive equipment and prosthetic and orthotic appliances. Therapy may

be conducted by a qualified physical therapist assistant under the

clinical supervision of a qualified physical therapist.

(8) Psychological services. Services listed in paragraphs (rr) (8)

(i) through (rr) (8) (iv) of this section that are provided by a

qualified psychologist:

(i) Administering psychological and educational tests and other

assessment procedures.

(ii) Interpreting test and assessment results.

(iii) Obtaining, integrating, and interpreting information about a

preschool child's or child's behavior and conditions relating to his or

her learning.

(iv) Consulting with other staff members in planning school

programs to meet the special needs of preschool children and children,

as indicated by psychological tests, interviews, and behavioral

evaluations.

(v) Planning and managing a program of psychological services,

including psychological counseling for preschool children, children,

and parents. For the purpose of these activities, a qualified

psychologist is a psychologist licensed in a State of the United States

who has a degree in clinical or school psychology and additional

pediatric training and/or experience.

(9) Recreation. This term includes:

(i) Assessment of leisure activities.

(ii) Therapeutic recreational activities.

(iii) Recreational programs in schools and community agencies.

(iv) Leisure education.

(10) School health services. Services provided, pursuant to an IEP,

by a qualified school health nurse, or other qualified person, that are

required for a preschool child or child with a disability to benefit

from special education.

(11) Social work counseling services in schools. This term

includes:

(i) Preparing a social and developmental history on a preschool

child or child identified as having a disability.

(ii) Counseling the preschool child or child with a disability and

his or her family on a group or individual basis, pursuant to an IEP.

(iii) Working with problems in a preschool child's or child's

living situation (home, school, and community) that adversely affect

his or her adjustment in school.

(iv) Using school and community resources to enable the preschool

child or child to receive maximum benefit from his or her educational

program.

(12) Speech pathology. This term includes the:

(i) Identification of preschool children and children with speech

or language disorders.

(ii) Diagnosis and appraisal of specific speech or language

disorders.

(iii) Referral for medical or other professional attention to

correct or ameliorate speech or language disorders.

(iv) Provision of speech and language services for the correction,

amelioration, and prevention of communicative disorders.

(v) Counseling and guidance of preschool children, children,

parents, and teachers regarding speech and language disorders.

(13) Transportation. This term includes transporting the individual

with a disability and, when necessary, an attendant or family member or

reimbursing the cost of travel ((e.g., mileage, or travel by taxi,

common carrier or other means) and related costs (e.g., tolls and

parking expenses)) when such travel is necessary to enable a preschool

child or child to receive special education (including related

services) or an infant or toddler and the infant's or toddler's family

to receive early intervention services. Transportation services

include:

(i) Travel to and from school and between schools, including travel

necessary to permit participation in educational and recreational

activities and related services.

(ii) Travel from school to a medically related service site and

return.

(iii) Travel in and around school buildings.

(iv) Travel to and from early intervention services.

(v) Specialized equipment (including special or adapted buses,

lifts, and ramps) if required to provide special transportation for an

individual with a disability.

(vi) If necessary, attendants assigned to vehicles transporting an

individual with a disability when that individual requires assistance

to be safely transported.

(ss) Section 6 School Arrangement. The schools (pre-kindergarten

through grade 12) operated by the Department of Defense within the

CONUS, Alaska, Hawaii, Puerto Rico, Wake Island, Guam, American Samoa,

the Northern Mariana Islands, and the Virgin Islands. Section 6 School

Arrangements are operated under DoD Directive 1342.21.\4\

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\4\See footnote 1 to Sec. 80.1(c).

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(tt) Separate facility. A school or a portion of a school,

regardless of whether it is used by the Section 6 School Arrangement,

that is only attended by children with disabilities.

(uu) Serious emotional disturbance. The term includes:

(1) A condition that has been confirmed by clinical evaluation and

diagnosis and that, over a long period of time and to a marked degree,

adversely affects educational performance and that exhibits one or more

of the following characteristics:

(i) An inability to learn that cannot be explained by intellectual,

sensory, or health factors.

(ii) An inability to build or maintain satisfactory interpersonal

relationships with peers and teachers.

(iii) Inappropriate types of behavior under normal circumstances.

(iv) A tendency to develop physical symptoms or fears associated

with personal or school problems.

(v) A general, pervasive mood of unhappiness or depression.

(2) Schizophrenia, but does not include children who are socially

maladjusted, unless it is determined that they are otherwise seriously

emotionally disturbed.

(vv) Service provider. Any individual who provides services listed

in an IEP or an IFSP.

(ww) Social work services. This term includes:

(1) Preparing a social or developmental history on an infant,

toddler, preschool child or child with a disability.

(2) Counseling with the infant, toddler, preschool child or child

and family in a group or individual capacity.

(3) Working with individuals with disabilities (0-21 inclusive) in

the home school, and/or community environment to ameliorate those

conditions that adversely affect development or educational

performance.

(4) Using school and community resources to enable the child to

receive maximum benefit from his or her educational program or for the

infant, toddler, and family to receive maximum benefit from early

intervention services.

(xx) Special education. Specially designed instruction, at no cost

to the parent, to meet the unique needs of a preschool child or child

with a disability, including instruction conducted in the classroom, in

the home, in hospitals and institutions, and in other settings, and

instruction in physical education. The term includes speech pathology

or any other related service, if the service consists of specially

designed instruction, at no cost to the parents, to meet the unique

needs of a preschool child or child with a disability, and is

considered ``special education'' rather than a ``related service.'' The

term also includes vocational education if it consists of specially

designed instruction, at no cost to the parents, to meet the unique

needs of a child with a disability.

(1) At no cost. With regard to a preschool child or child eligible

to attend Section 6 School Arrangements, specially designed instruction

and related services are provided without charge, but incidental fees

that are normally charged to nondisabled students, or their parents, as

a part of the regular educational program may be imposed.

(2) Physical education. The development of:

(1) Physical and motor fitness.

(ii) Fundamental motor skills and patterns.

(iii) Skills in aquatics, dance, and individual and group games and

sports (including intramural and lifetime sports).

(iv) A program that includes special physical education, adapted

physical education, movement education, and motor development.

(3) Vocational education. This term means organized educational

programs that are directly related to the preparation of individuals

for paid or unpaid employment, or for additional preparation for a

career requiring other than a baccalaureate or advanced degree.

(yy) Special instruction. This term includes:

(1) Designing learning environments and activities that promote the

infant's, toddler's, preschool child's or child's acquisition of skills

in a variety of developmental areas, including cognitive processes and

social interaction.

(2) Planning curriculum, including the planned interaction of

personnel, materials, and time and space, that leads to achieving the

outcomes in the infant's, toddler's, preschool child's or child's IEP

or IFSP.

(3) Providing families with information, skills, and support

related to enhancing the skill development of the infant, toddler, or

preschool child or child.

(4) Working with the infant, toddler, preschool child, or child to

enhance the infant's, toddler's, preschool child's or child's

development and cognitive processes.

(zz) Specific learning disability. A disorder in one or more of the

basic psychological processes involved in understanding or in using

spoken or written language that may manifest itself as an imperfect

ability to listen, think, speak, read, write, spell, or do mathematical

calculations. The term includes such conditions as perceptual

disabilities, brain injury, minimal brain dysfunction, dyslexia, and

developmental aphasia. The term does not include preschool children or

children who have learning problems that are primarily the result of

visual, hearing, or motor disabilities, mental retardation, emotional

disturbance, or environmental, cultural, or economic differences.

(aaa) Speech and language impairments. A communication disorder,

such as stuttering, impaired articulation, voice impairment, or a

disorder in the receptive or expressive areas of language that

adversely affects a preschool child's or child's educational

performance.

(bbb) Superintendent. The chief official of a Section 6 School

Arrangement responsible for the implementation of this part on his or

her installation.

(ccc) Transition services. A coordinated set of activities for a

toddler that may be required to promote movement from early

intervention, preschool, and other educational programs into different

programs or educational settings. For a student 14 years of age and

older, transition services are designed within an outcome-oriented

process, which promotes movement from school to post-school activities,

including post-secondary education, vocational training, integrated

employment (including supported employment), continuing and adult

education, adult services, independent living, or community

participation. The coordinated set of activities shall be based upon

the individual student's needs, taking into account the student's

preferences and interests, and shall include instruction, community

experiences, the development of employment and other post-school adult

living objectives, and when appropriate, acquisition of daily living

skills and functional vocational evaluation.

(ddd) Traumatic brain injury. An injury to the brain caused by an

external physical force or by an internal occurrence, such as stroke or

aneurysm, resulting in total or partial functional disability or

psychosocial maladjustment that adversely affects educational

performance. The term includes open or closed head injuries resulting

in mild, moderate, or severe impairments in one or more areas,

including cognition; language, memory; attention; reasoning; abstract

thinking; judgment; problem solving; sensory; perceptual and motor

abilities; psychosocial behavior; physical function; and information

processing and speech. The term does not include brain injuries that

are congenital or degenerative or brain injuries that are induced by

birth trauma.

(eee) Vision services. Services necessary to ameliorate the effects

of sensory impairment resulting from a loss of vision.

(fff) Visual impairment. A sensory impairment including blindness

that, even with correction, adversely affects a preschool child's or

child's educational performance. The term includes both partially

seeing and blind preschool children and children.

Sec. 80.4 Policy.

It is DoD policy that:

(a) All individuals with disabilities ages 3 to 21 years receiving

or entitled to receive educational instruction from the Section 6

School Arrangements shall be provided a free, appropriate education

under this part in accordance with the IDEA as amended, 20 U.S.C.

Chapter 33; Pub. L. 102-119, Section 23; and DoD Directive 1342.21.

(b) All individuals with disabilities ages birth through 2 years

(inclusive) and their families are entitled to receive early

intervention services under this part, provided that such infants and

toddlers would be eligible to enroll in a Section 6 School Arrangement

but for their age.

Sec. 80.5 Responsibilities.

(a) The Under Secretary of Defense for Personnel and Readiness

(USD(P&R)) shall:

(1) Ensure that all infants and toddlers with disabilities (birth

through 2 years inclusive) who but for their age would be eligible to

attend the Section 6 Arrangement Schools, and their families are

provided early intervention services in accordance with IDEA as

amended, (20 U.S.C., Chapter 33, Subchapter VIII.) and in conformity

with the procedures in appendix A to this part.

(2) Ensure that preschool children and children with disabilities

ages 3-21 years (inclusive) receiving educational instruction from

Section 6 School Arrangements are provided a free appropriate public

education and that the educational needs of such preschool children and

children with disabilities are met using the procedures established by

this part.

(3) Ensure that educational facilities and services provided by

Section 6 School Arrangements for preschool children and children with

disabilities are comparable to educational facilities and services for

non-disabled students.

(4) Maintain records on special education and related services

provided to children with disabilities, consistent with 32 CFR part

310.

(5) Ensure the provision of all necessary diagnostic services and

special education and related services listed on an IEP (including

those supplied by or under the supervision of physicians) to preschool

children and children with disabilities who are enrolled in Section 6

School Arrangements. In fulfilling this responsibility, (USD(P&R)), or

designee, may use intercomponent arrangements, or act through contracts

with private parties, when funds are authorized and appropriated.

(6) Develop and implement a comprehensive system of personnel

development, in accordance with 20 U.S.C. 1413-(a)(3), for all

professional staff employed by a Section 6 School Arrangement. This

system shall include:

(i) Inservice training of general and special educational

instructional and support personnel,

(ii) Implementing innovative strategies and activities for the

recruitment and retention of medically related service providers,

(iii) Detailed procedures to assure that all personnel necessary to

carry out the purposes of this part are appropriately and adequately

prepared and trained, and

(iv) Effective procedures for acquiring and disseminating to

teachers and administrators of programs for children with disabilities

significant information derived from educational research,

demonstration, and similar projects, and

(v) Adopting, where appropriate, promising practices, materials,

and technology.

(7) Provide technical assistance to professionals in Section 6

School Arrangements involved in, or responsible for, the education of

preschool children or children with disabilities.

(8) Ensure that child-find activities are coordinated with other

relevant components and are conducted to locate and identify every

individual with disabilities.

(9) Issue guidance implementing this part.

(10) Undertake evaluation activities to ensure compliance with this

part through monitoring, technical assistance, and program evaluation.

(11) Chair the DoD Coordinating Committee on Domestic Early

Intervention, Special Education, and Related Services, which shall be

composed of representatives of the Secretaries of the Military

Departments, the Assistant Secretary of Defense for Health Affairs

(ASD(HA)), the General Counsel of the Department of Defense (GC, DoD),

and the Director, Section 6 Schools.

(12) Through the DoD Coordinating Committee on Demestic Early

Intervention, Special Education, and Related Services, monitor the

provision of special education and related services and early

intervention services furnished under this part, and ensure that

related services, special education, and early intervention services

are properly coordinated.

(13) Ensure that appropriate personnel are trained to provide

mediation services in cases that otherwise might result in due process

proceedings under this part.

(14) Ensure that transition services from early intervention

services to regular or special education and from special education to

the world of work are provided.

(15) Ensure that all DoD programs that provide services to infants

and toddlers and their families (e.g., child care, medical care,

recreation) are involved in a comprehensive intercomponent system for

early intervention services.

(16) Ensure, whenever practicable, that planned construction not

yet past the 35 percent design phase and new design begun after the

date of this part of renovation of school or child care facilities

includes consideration of the space required for the provision of

medically related services and early intervention services.

(17) Shall establish the Domestic Advisory Panel that shall:

(i) Consist of members appointed by the USD (P&R) or Principal

Deputy USD (P&R). Membership shall include at least one representative

from each of the following groups:

(A) Individuals with disabilities.

(B) Parents, including minority parents of individuals with

disabilities from various age groups.

(C) Section 6 School Arrangements special education teachers.

(D) Section 6 School Arrangements regular education teachers.

(E) Section 6 School Arrangements Superintendent office personnel.

(F) The Office of Director, Section 6 Schools.

(G) The Surgeons General of the Military Departments.

(H) The Family Support Programs of the Military Departments.

(I) Section 6 School Arrangements School Boards.

(J) Early Intervention service providers on installations with

Section 6 School Arrangements.

(K) Other appropriate personnel.

(ii) Meet as often as necessary.

(iii) Perform the following duties:

(A) Review information and provide advice to ASD (P&R) regarding

improvements in services provided to individuals with disabilities in

Section 6 Schools and early intervention programs.

(B) Receive and consider the views of various parent, student, and

professional groups, and individuals with disabilities.

(C) When necessary, establish committees for short-term purposes

composed of representatives from parent, student, family and other

professional groups, and individuals with disabilities.

(D) Review the findings of fact and decision of each impartial due

process hearing conducted pursuant to this part.

(E) Assist in developing and reporting such information and

evaluations as may aid Section 6 Schools and the Military Departments

in the performance of duties under the part.

(F) Make recommendations, based on program and operational

information, for changes in the budget, organization, and general

management of the special education program, and in policy and

procedure.

(G) Comment publicly on rules or standards regarding the education

of individuals with disabilities.

(H) Assist in developing recommendations regarding the transition

of toddlers with disabilities to preschool services.

(b) The Assistant Secretary of Defense for Health Affairs in

consultation with the USD(P&R), the GC, DoD, and the Secretaries of the

Military Departments, shall:

(1) Establish staffing and personnel standards for personnel who

provide early intervention services and medically related services.

(2) Develop and implement a comprehensive system of personnel

development in accordance with 20 U.S.C. 1413(a)(3), including the

training of professionals, paraprofessionals and primary referral

sources, regarding the basic components of early intervention services

and medically related services. Such a system may include:

(i) Implementing innovative strategies and activities for the

recruitment and retention of early intervention service providers.

(ii) Ensuring that early intervention service providers and

medically related service providers are fully and appropriately

qualified to provide early intervention services and medically related

services, respectively.

(iii) Training personnel to work in the military environment.

(iv) Training personnel to coordinate transition services for

infants and toddlers with disabilities from an early intervention

program to a preschool program.

(3) Develop and implement a system for compiling data on the

numbers of infants and toddlers with disabilities and their families in

need of appropriate early intervention services, the numbers of such

infants and toddlers and their families served, the types of services,

and other information required to evaluate the implementation of early

intervention programs.

(4) Resolve disputes among the DoD Components arising under

appendix A of this part.

(c) Secretaries of the Military Departments shall:

(1) Provide quality assurance for medically related services in

accordance with personnel standards and staffing standards under DoD

Directive 6025.13\5\ developed by the Assistant Secretary of Defense

for Health Affairs (ASD(HA)).

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\5\See footnote 1 to Sec. 80.1(c).

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(2) Plan, develop, and implement a comprehensive, coordinated,

intercomponent, community-based system of early intervention services

for infants and toddlers with disabilities (birth through 2 inclusive)

and their families who are living on an installation with a Section 6

School Arrangement, or who but for their age, would be entitled to

enroll in a Section 6 School Arrangement, using the procedures

established by this part and guidelines from the ASD(HA) on staffing

and personnel standards.

(3) Undertake activities to ensure compliance with this part

through technical assistance, program evaluation, and monitoring.

(d) The Director, Defense Office of Hearings and Appeals (DOHA)

shall ensure the provision of impartial due process hearings under

appendix C of this part.

Sec. 80.6 Procedures.

(a) Procedures for the provision of early intervention services for

infants and toddlers with disabilities and their families are in

appendix A to this part. Provision of early intervention services

includes establishing a system of coordinated, comprehensive,

multidisciplinary, intercomponent services providing appropriate early

intervention services to all eligible infants and toddlers with

disabilities and their families.

(b) Procedures for special educational programs (including related

services) for preschool children and children with disabilities (3-21

years inclusive) are in appendix B to this part.

(c) Procedures for adjudicative requirements required by Pub. L.

101-476, as amended, and Pub. L. 102-119 are in appendix C to this

part. These procedures establish adjudicative requirements whereby the

parents of an infant, toddler, preschool child or child with a

disability and the military department concerned or Section 6 School

System are afforded an impartial due process hearing on early

intervention services or on the identification, evaluation, and

educational placement of, and the free appropriate public education

provided to, such infant, toddler, preschool child or child, as the

case may be.

Appendix A to Part 80--Procedures For The Provision of Early

Intervention Services for Infants And Toddlers With Disabilities, Ages

0-2 years (Inclusive), And Their Families

A. Requirements For A System of Early Intervention Services

1. A system of coordinated, comprehensive, multidisciplinary,

and intercomponent programs providing appropriate early intervention

services to all infants and toddlers with disabilities and their

families shall include the following minimum components:

a. A timely, comprehensive, multidisciplinary evaluation of the

functioning of each infant and toddler with a disability and the

priorities and concerns of the infant's or toddler's family to

assist in the development of the infant or toddler with a

disability.

b. A mechanism to develop, for each infant and toddler with a

disability, an IFSP and early intervention services coordination, in

accordance with such service plan.

c. A comprehensive child-find system, coordinated with the

appropriate Section 6 School Arrangement, including a system for

making referrals to service providers that includes timelines and

provides for participation by primary referral sources, such as the

CDC and the pediatric clinic.

d. A public awareness program including information on early

identification of infants and toddlers with disabilities and the

availability of resources in the community to address and remediate

these disabilities.

e. A central directory that includes a description of the early

intervention services and other relevant resources available in the

community.

B. Each Military Medical Department Shall Develop and Implement a

System to Provide for:

1. The administration and supervision of early intervention

programs and services, including the identification and coordination

of all available resources.

2. The development of procedures to ensure that services are

provided to infants and toddlers with disabilities and their

families in a timely manner.

3. The execution of agreements with other DoD components

necessary for the implementation of this appendix. Such agreements

must be coordinated with the ASD(HA) and the GC, DoD, in

consultation with the USD(P&R).

4. The collection and reporting of data required by ASD(HA).

5. A multidisciplinary assessment of the unique strengths and

needs of the infant or toddler and the identification of services

appropriate to meet such needs.

6. A family-directed assessment of the resources, priorities,

and concerns of the family and the identification of the supports

and services necessary to enhance the family's capacity to meet the

developmental needs of its infant or toddler with a disability.

C. Each Military Medical Department Shall Develop and Implement a

Program to Ensure That an IFSP is Developed for Each Infant or

Toddler With a Disability and the Infant's or Toddler's Family

According to the Following Procedures:

1. The IFSP shall be evaluated once a year and the family shall

be provided a review of the plan at 6-month intervals (or more often

where appropriate), based on the needs of the infant or toddler and

family.

2. Each initial meeting and each annual meeting to evaluate the

IFSP must include the following participants:

a. The parent or parents of the infant or toddler.

b. Other family members, as requested by a parent, if feasible

to do so.

c. An advocate, if his or her participation is requested by a

parent.

d. The Early Intervention Program Services Coordinator who has

been working with the family since the initial referral of the

infant or toddler or who has been designated as responsible for the

implementation of the IFSP.

e. A person or persons directly involved in conducting the

evaluation and assessments.

f. Persons who will be providing services to the infant,

toddler, or family, as appropriate.

g. If a person or persons listed in paragraph C.2 of this

section is unable to attend a meeting, arrangements must be made for

involvement through other means, including:

(1) Participating in a telephone call.

(2) Having a knowledgeable authorized representative attend the

meeting.

(3) Making pertinent records available at the meeting.

3. The IFSP shall be developed within a reasonable time after

the assessment. With the parent's consent, early intervention

services may start before the completion of such an assessment under

an IFSP.

4. The IFSP shall be in writing and contain:

a. A statement of the infant's or toddler's present levels of

physical development, cognitive development, communication

development, social or emotional development, and adaptive

development, based on acceptable objective criteria.

b. A statement of the family's resources, priorities, and

concerns for enhancing the development of the family's infant or

toddler with a disability.

c. A statement of the major outcomes expected to be achieved for

the infant or toddler and the family, and the criteria, procedures,

and timelines used to determine the degree to which progress toward

achieving the outcomes is being made and whether modifications or

revisions of the outcomes or services are necessary.

d. A statement of the specific early intervention services

necessary to meet the unique needs of the infant or toddler and the

family, including the frequency, intensity, and the method of

delivering services.

e. A statement of the natural environments in which early

intervention services shall be provided.

f. The projected dates for initiation of services and the

anticipated duration of such services.

g. The name of the Early Intervention Program Service

Coordinator.

h. The steps to be taken supporting the transition of the

toddler with a disability to preschool services or other services to

the extent such services are considered appropriate.

5. The contents of the IFSP shall be fully explained to the

parents by the Early Intervention Program Service Coordinator, and

informed written consent from such parents shall be obtained before

the provision of early intervention services described in such plan.

If the parents do not provide such consent with respect to a

particular early intervention service, then the early intervention

services to which such consent is obtained shall be provided.

D. Procedural Safeguards for the Early Intervention Program

1. The procedural safeguards include:

a. The timely administrative resolution of complaints by the

parent(s), including hearing procedures (appendix C to this part).

b. The right to protection of personally identifiable

information under 32 CFR part 310.

c. The right of the parent(s) to determine whether they, their

infant or toddler, or other family members will accept or decline

any early intervention service without jeopardizing the delivery of

other early intervention services to which such consent is obtained.

d. The opportunity for the parent(s) to examine records on

assessment, screening, eligibility determinations, and the

development and implementation of the IFSP.

e. Written prior notice to the parent(s) of the infant or

toddler with a disability whenever the Military Department concerned

proposes to initiate or change or refuses to initiate or change the

identification, evaluation, placement, or the provision of

appropriate early intervention services to the infant and toddler

with a disability.

f. Procedures designed to ensure that the notice required in

paragraph D.1.e. of this appendix fully informs the parents in the

parents' native language, unless it clearly is not feasible to do

so.

g. During the pending of any proceeding under appendix C to this

part, unless the Military Department concerned and the parent(s)

otherwise agree, the infant or toddler shall continue to receive the

early intervention services currently being provided, or, if

applying for initial services, shall receive the services not in

dispute.

Appendix B to Part 80--Procedures for Special Educational Programs

(Including Related Services) for Preschool Children and Children with

Disabilities (3-21 years Inclusive)

A. Identification and Screening

1. Each Section 6 School Arrangement shall locate, identify,

and, with the consent of a parent of each preschool child or child,

evaluate all preschool children or children who are receiving or are

entitled to receive an education from Section 6 School Arrangements

and who may need special education and/or related services.

2. Each Section 6 School Arrangement shall:

a. Provide screening, through the review of incoming records and

the use of basic skills tests in reading, language arts, and

mathematics, to determine whether a preschool child or child may be

in need of special education and related services.

b. Analyze school health data for those preschool children and

children who demonstrate possible disabling conditions. Such data

shall include:

(1) Results of formal hearing, vision, speech, and language

tests.

(2) Reports from medical practitioners.

(3) Reports from other appropriate professional health personnel

as may be necessary, under this part, to aid in identifying possible

disabling conditions.

c. Analyze other pertinent information, including suspensions,

exclusions, other disciplinary actions, and withdrawals, compiled

and maintained by Section 6 School Arrangements that may aid in

identifying possible disabling conditions.

3. Each Section 6 School Arrangement, in cooperation with

cognizant authorities at the installation on which the Section 6

School Arrangement is located, shall conduct ongoing child-find

activities that are designed to identify all infants, toddlers,

preschool children, and children with possible disabling conditions

who reside on the installation or who otherwise either are entitled,

or will be entitled, to receive services under this part.

a. If an element of the Section 6 School Arrangement, a

qualified professional authorized to provide related services, a

parent, or other individual believes that an infant, toddler,

preschool child or child has a possible disabling condition, that

individual shall be referred to the appropriate CSC or early

intervention coordinator.

b. A Section 6 School Arrangement CSC shall work in cooperation

with the Military Departments in identifying infants, toddlers,

preschool children and children with disabilities (birth to 21 years

inclusive).

3B. Evaluation Procedures

1. Each CSC will provide a full and comprehensive diagnostic

evaluation of special educational, and related service needs to any

preschool child or child who is receiving, or entitled to receive,

educational instruction from a Section 6 School Arrangement,

operated by the Department of Defense under Directive 1342.21, and

who is referred to a CSC for a possible disability. The evaluation

will be conducted before any action is taken on the development of

the IEP or placement in a special education program.

2. Assessment materials, evaluation procedures, and tests shall

be:

a. Racially and culturally nondiscriminatory.

b. Administered in the native language or mode of communication

of the preschool child or child unless it clearly is not feasible to

do so.

c. Validated for the specific purpose for which they are used or

intended to be used.

d. Administered by qualified personnel, such as a special

educator, school psychologist, speech therapist, or a reading

specialist, in conformity with the instructions provided by the

producers of the testing device.

e. Administered in a manner so that no single procedure is the

sole criterion for determining eligibility and an appropriate

educational program for a disabled preschool child or child.

f. selected to assess specific areas of educational strengths

and needs, not merely to provide a single general intelligence

quotient.

3. The evaluation shall be conducted by a multidisciplinary team

and shall include a teacher or other specialist with knowledge in

the areas of the suspected disability.

4. The preschool child or child shall be evaluated in all areas

related to the suspected disability. When necessary, the evaluation

shall include:

a. The current level of academic functioning, to include general

intelligence.

b. Visual and auditory acuity.

c. Social and emotional status, to include social functioning

within the educational environment and within the family.

d. Current physical status, including perceptual and motor

abilities.

e. Vocational transitional assessment (for children ages 14-21

years (inclusive)).

5. The appropriate CSC shall met as soon as possible after the

preschool child's or child's formal evaluation to determine whether

he or she is in need of special education and related services. The

preschool child's or child's parents shall be invited to the meeting

and afforded the opportunity to participate in such a meeting.

6. The school CSC shall issue a written report that contains:

a. A review of the formal and informal diagnostic evaluation

findings of the multidisciplinary team.

b. A summary of information from the parents, the preschool

child or child, or other persons having significant previous contact

with the preschool child or child.

c. A description of the preschool child's or child's current

academic progress, including a statement of his or her learning

style.

d. A description of the nature and severity of the preschool

child's or child's disability(ies).

7. A preschool child or child with a disability shall receive an

individual comprehensive diagnostic evaluation every 3 years, or

more frequently if conditions warrant, or if the preschool child's

or child's parent, teacher, or related service provider requests an

evaluation. The scope and nature of the reevaluation shall be

determined individually, based upon the preschool child's or child's

performance, behavior, and needs when the reevaluation is conducted,

and be used to update or revise the IEP.

C. Individualized Education Program (IEP)

1. Section 6 School Arrangements shall ensure that an IEP is

developed and implemented for each preschool child or child with a

disability enrolled in a Section 6 School Arrangement or placed on

another institution by a Section 6 School Arrangement CSC under this

part.

2. Each IEP shall include:

a. A statement of the preschool child's or child's present

levels of educational performance.

b. A statement of annual goals, including short-term

instructional objectives.

c. A statement of the specific special educational services and

related services to be provided to the preschool child or child

(including the frequency, number of times per week/month and

intensity, amount of times each day) and the extent to which the

preschool child or child may be able to participate in regular

educational programs.

d. The projected anticipated date for the initiation and the

anticipated length of such activities and services.

e. Appropriate objective criteria and evaluation procedures and

schedules for determining, on an annual basis, whether educational

goals and objectives are being achieved.

f. A statement of the needed transition services for the child

beginning no later than age 16 and annually thereafter (and when

determined appropriate for the child, beginning at age 14 or

younger) including, when appropriate, a statement of DoD Component

responsibilities before the child leaves the school setting.

3. Each preschool child or child with a disability shall be

provided the opportunity to participate, with adaptations when

appropriate, in the regular physical education program available to

students without disabilities unless:

a. The preschool child or child with a disability is enrolled

full-time in a separate facility; or

b. The preschool child or child with a disability needs

specially designed physical education, as prescribed in his or her

IEP.

4. If specially designed physical education services are

prescribed in the IEP of a preschool child or child with a

disability, the Section 6 School Arrangement shall provide such

education directly, or shall make arrangements for the services to

be provided through a non-Section 6 School Arrangement or another

facility.

5. Section 6 School Arrangements shall ensure that a preschool

child or child with a disability, enrolled by a CSC in a separate

facility, receives appropriate, physical education in compliance

with this part.

6. The IEP for each preschool child or child with a disability

shall be developed and reviewed at least annually in meetings that

include the following participants:

a. The designated representative of the Section 6 School

Arrangement, who is qualified to supervise the provision of special

education. Such representative may not be the preschool child's or

child's special education teacher.

b. One, or more, of the preschool child's or child's regular

education teachers, if appropriate.

c. The preschool child's or child's special education teacher or

teachers.

d. One, or both, of the preschool child's or child's parents.

e. The child, if appropriate.

f. For a preschool child or child with a disability who has been

evaluated, a member of the evaluation team or another person

knowledgeable about the evaluation procedures used with that student

and familiar with the results of the evaluation.

g. Other individuals, at the reasonable discretion of the

parent(s) or the school.

7. Section 6 School Arrangements shall:

2a. Ensure that an IEP meeting is held, normally within 10

working days, following a determination by the appropriate CSC that

the preschool child or child is eligible to receive special

education and/or related services.

b. Address the needs of a preschool child or child with a

current IEP who transfers from a school operated by the DoD in

accordance with 32 CFR part\1\ or from a Section 6 School

Arrangement to a Section 6 School Arrangement, by:

---------------------------------------------------------------------------

\1\Copies of DoD Directive 1342.6 may be obtained, at cost, from

the National Technical Information Service, 5285 Port Royal Road,

Springfield, VA 22161.

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(1)Implementing the current IEP; or

(2) Revising the current IEP with the consent of a parent; or

(3) Initiating, with the consent of a parent, an evaluation of

the preschool child or child, while continuing to provide

appropriate services through a current IEP; or

(4) Initiating, with the consent of the parent, an evaluation of

the preschool child or child without the provision of the services

in the current IEP; or

(5) Initiating mediation, and if necessary, due process

procedures.

c. Afford the preschool child's or child's parent(s) the

opportunity to participate in every IEP or CSC meeting about their

preschool child or child by:

(1) Providing the parent(s) adequate written notice of the

purpose, time, and place of the meeting.

(2) Attempting to schedule the meeting at a mutually agreeable

time and place.

8. If neither parent can attend the meeting, other methods to

promote participation by a parent, such as telephone conservations

and letters, shall be used.

9. A meeting may be conducted without a parent in attendance if

the Section 6 School Arrangement is unable to secure the attendance

of the parent. In this case, the Section 6 School Arrangement must

have written records of its attempts to arrange a mutually

acceptable time and place.

10. If the parent(s) attends the IEP meeting, the Section 6

School Arrangement shall take necessary action to ensure that at

least one of the parents understands the proceedings at the meeting,

including providing an interpreter for a parent who is deaf or whose

native language is other than English.

11. The section 6 School Arrangement shall give a parent a copy

of the preschool child's IEP.

12. Section 6 School Arrangements shall provide special

education and related services, in accordance with an IEP, provided

that the Department of Defense, its constituent elements, and its

personnel, are not accountable if a preschool child or child does

not achieve the growth projected in the IEP.

13. Section 6 School Arrangements shall ensure that an IEP is

developed and implemented for each preschool child or child with a

disability whom the CSC places in a non-Section 6 School or other

facility.

D. Placement Procedures and Least Restrictive Environment

1. The placement of a preschool child or child in any special

education program by the Section 6 School Arrangement shall be made

only under an IEP and after a determination has been made that such

student has a disability and needs special education and/or related

services.

2. The Section 6 School Arrangement CSC shall identify the

special education and related services to be provided under the IEP.

3. A placement decision may not be implemented without the

consent of a parent of the preschool child or child, except as

otherwise provided in accordance with this part.

4. The placement decision must be designed to educate a

preschool child or child with a disability in the least restrictive

environment so that such student is educated to the maximum extent

appropriate with students who do not have disabilities. Special

classes, separate schooling, or other removal of preschool children

or children with disabilities from the regular educational

environment shall occur only when the nature or severity of the

disability is such that the preschool child or child with

disabilities cannot be educated satisfactorily in the regular

classes with the use of supplementary aids and services, including

related services.

5. Each educational placement for a preschool child or child

with a disability shall be:

a. Determined at least annually by the appropriate CSC.

b. Based on the preschool child or child's IEP.

c. Located as close as possible to the residence of the parent

who is sponsoring the preschool child or child for attendance in a

Section 6 School Arrangement.

d. Designed to assign the preschool child or child to the school

such student would attend if he or she were not a student with a

disability, unless the IEP requires some other arrangement.

e. Predicated on the consideration of all factors affecting the

preschool child's or child's well-being, including the effects of

separation from parent(s).

f. To the maximum extent appropriate, designed so that the

preschool child or child participates in school activities,

including meals and recess periods, with students who do not have a

disability.

E. Children With Disabilities Placed in Non-Section 6 School

Arrangements

1. Before a Section 6 School Arrangement CSC, with the

concurrence of the Section 6 School Arrangement Superintendent

concerned, places a preschool child or child with a disability in a

non-Section 6 School or facility, the Section 6 School CSC shall

conduct a meeting in accordance with this part to initiate the

development of an IEP for such student.

2. Preschool children and children with disabilities eligible to

receive instruction in Section 6 School Arrangements who are

referred to another school or facility by the Section 6 School CSC

have all the rights of students with disabilities who are attending

the Section 6 School Arrangement.

a. If a Section 6 School Arrangement CSC places a preschool

child or child with a disability in a non-Section 6 School

Arrangement or facility as a means of providing special education

and related services, the program of that facility, including

nonmedical care, room, and board, as set forth in the student's IEP,

must be at no cost to the student or the student's parents.

b. A Section 6 School Arrangement CSC may place a preschool

child or child with a disability in a non-Section 6 School

Arrangement or facility only if required by an IEP. An IEP for a

student placed in a non-Section 6 School is not valid until signed

by the Section 6 School Arrangement Superintendent, or designee, who

must have participated in the IEP meeting. The IEP shall include

determinations that:

(1) The Section 6 School Arrangement does not currently have,

and cannot reasonably create, an educational program appropriate to

meet the needs of the student with a disability.

(2) The non-Section 6 School Arrangement or facility and its

educational program conform to this part.

3. A Section 6 School Arrangement is not responsible for the

cost of a non-Section 6 School Arrangement placement when placement

is made unilaterally, without the approval of the cognizant CSC and

the Superintendent, unless it is directed by a hearing officer under

appendix C of this part or a court of competent jurisdiction.

F. Procedural Safeguards

1. Parents shall be given written notice before the Section 6

School Arrangement CSC proposes to initiate or change, or refuses to

initiate or change, either the identification, evaluation, or

educational placement of a preschool child or child receiving, or

entitled to receive, special education and related services from a

Section 6 School Arrangement, or the provision of a free appropriate

public education by the Section 6 School Arrangement to the child.

The notice shall fully inform a parent of the procedural rights

conferred by this part and shall be given in the parent's native

language, unless it clearly is not feasible to do so.

2. The consent of a parent of a preschool child or child with a

disability or suspected of having a disability shall be obtained

before any:

a. Initiation of formal evaluation procedures;

b. Initial special educational placement; or

c. Change in educational placement.

3. If a parent refuses consent to any formal evaluation or

initial placement in a special education program, the Section 6

School Arrangement Superintendent may initiate an impartial due

process hearing, as provided in appendix C of this part to show why

an evaluation or placement in a special education program should

occur without such consent. If the hearing officer sustains the

Section 6 School Arrangement CSC position in the impartial due

process hearing, the appropriate CSC may evaluate or provide special

education and related services to the preschool child or child

without the consent of a parent, subject to the parent's due process

rights.

4. A parent is entitled to an independent evaluation of his or

her preschool child or child at the Section 6 School Arrangement's

expense, if the parent disagrees with the findings of an evaluation

of the student conducted by the school and the parent successfully

challenges the evaluation in an impartial due process hearing.

a. If an independent evaluation is provided at the expense of a

Section 6 School Arrangement, it must meet the following criteria:

(1) Conform to the requirements of this part.

(2) Be conducted, when possible, within the area where the

preschool child or child resides.

(3) Meet applicable DoD standards governing persons qualified to

conduct an evaluation.

b. If the final decision rendered in an impartial due process

hearing sustains the evaluation of the Section 6 School Arrangement

CSC, the parent has the right to an independent evaluation, but not

at the expense of the Department of Defense or any DoD Component.

5. The parents of a preschool child or child with a disability

shall be afforded an opportunity to inspect and review all relevant

educational records concerning the identification, evaluation, and

educational placement of such student, and the provision of a free

appropriate public education to him or her.

6. Upon complaint presented in a written petition, the parent of

a preschool child or child with a disability or the Section 6 School

System shall have the opportunity for an impartial due process

hearing provided by the Department of Defense as prescribed by

appendix C of this part.

7. During the pendency of any impartial due process hearing or

judicial proceeding on the identification, evaluation, or

educational placement of a preschool child or child with a

disability receiving an education from a Section 6 School

Arrangement or the provision of a free appropriate public education

to such a student, unless the Section 6 School Arrangement and a

parent of the student agree otherwise, the student shall remain in

his or her present educational placement, subject to the

disciplinary procedures prescribed in this part.

8. If a preschool child or child with a disability, without a

current IEP, who is entitled to receive educational instruction from

a Section 6 School Arrangement is applying for initial admission to

a Section 6 School Arrangement, that student shall enter that

Arrangement on the same basis as a student without a disability.

9. The parent of a preschool child or child with a disability or

a Section 6 School Arrangement employee may file a written

communication with the Section 6 School Arrangement Superintendent

about possible general violations of this part or Pub. L. 101-476,

as amended. Such communications will not be treated as complaints

under appendix C of this part.

G. Disciplinary Procedures

1. All regular disciplinary rules and procedures applicable to

students receiving educational instruction in the Section 6 School

Arrangements shall apply to preschool children and children with

disabilities who violate school rules and regulations or disrupt

regular classroom activities, subject to the provisions of this

section.

2. The appropriate CSC shall determine whether the conduct of a

preschool child or child with a disability is the result of that

disability before the long-term suspension (10 consecutive or

cumulative days during the school year) or the expulsion of that

student.

3. If the CSC determines that the conduct of such a preschool

child or child with a disability results in whole or part from his

or her disability, that student may not be subject to any regular

disciplinary rules and procedures; and

a. The student's parent shall be notified in accordance with

this part of the right to have an IEP meeting before any change in

the student's special education placement. (A termination of the

student's education for more than 10 days, either cumulative or

consecutive, constitutes a change of placement.)

b. The Section 6 School Arrangement CSC or another authorized

school official shall ensure that an IEP meeting is held to

determine the appropriate educational placement for the student in

consideration of his or her conduct before the tenth cumulative day

of the student's suspension or an expulsion.

4. A preschool child or child with a disability shall neither be

suspended for more than 10 days nor expelled, and his or her

educational placement shall not otherwise be changed for

disciplinary reasons, unless in accordance with this section, except

that:

a. This section shall be applicable only to preschool children

and children determined to have a disability under this part.

b. Nothing contained herein shall prevent the emergency

suspension of any preschool child or child with a disability who

endangers or reasonable appears to endanger the health, welfare, or

safety of himself or herself, or any other student, teacher, or

school personnel, provided that:

(1) The appropriate Section 6 School Arrangement CSC shall

immediately meet to determine whether the preschool child's or

child's conduct results from his or her disability and what change

in special education placement is appropriate for that student.

(2) The child's parent(s) shall be notified immediately of the

student's suspension and of the time, purpose, and location of the

CSC meeting and their right to attend the meeting.

(3) A component is included in the IEP that addresses the

behavioral needs of the student.

(4) The suspension of the student is only effective for the

duration of the emergency.

Appendix C to Part 80--Hearing Procedures

A. Purpose

This appendix establishes adjudicative requirements whereby the

parents of infants, toddlers, preschool children, and children who

are covered by this part and, as the case may be, the cognizant

Military Department or Section 6 School System are afforded

impartial due process hearings and administrative appeals on the

early intervention services or identification, evaluation, and

educational placement of, and the free appropriate public education

provided to, such children by the Department of Defense, in

accordance with Pub. L. 101-476, as amended, 20 U.S.C. sec. 1401 et

seq.; Pub. L. 81-874, sec. 6, as amended, 20 U.S.C. sec. 241; Pub.

L. 97-35, sec. 505(c), 20 U.S.C. sec. 241 note; and Pub. L. 102-119,

sec. 23, 20 U.S.C. sec. 241(a).

B. Administration

1. The Directorate for the Defense Office of Hearings and

Appeals (DOHA) shall have administrative responsibility for the

proceedings authorized by this appendix.

2. This appendix shall be administered to ensure that the

findings, judgments, and determinations made are prompt, fair, and

impartial.

3. Impartial hearing officers, who shall be DOHA Administrative

Judges, shall be appointed by the Director, DOHA, and shall be

attorneys who are independent of the Section 6 School System or the

Military Department concerned in proceedings conducted under this

appendix. A parent shall have the right to be represented in such

proceedings, at no cost to the government, by counsel and by persons

with special knowledge or training with respect to the problems of

individuals with disabilities. DOHA Department Counsel normally

shall appear and represent the Section 6 School System in

proceedings conducted under this appendix, when such proceedings

involve a preschool child or child. When an infant or toddler is

involved, the Military Department responsible under this part for

delivering early intervention services shall either provide its own

counsel or request counsel from DOHA.

C. Mediation

1. Mediation can be initiated by either a parent or, as

appropriate, the Military Department concerned or the Section 6

School System to resolve informally a disagreement on the early

intervention services for an infant or toddler or the

identification, evaluation, educational placement of, or the free

appropriate public education provided to, a preschool child or

child. The cognizant Military Department, rather than the Section 6

School System, shall participate in mediation involving early

intervention services. Mediation shall consist of, but not be

limited to, an informal discussion of the differences between the

parties in an effort to resolve those differences. The parents and

the appropriate school or Military Department officials may attend

mediation sessions.

2. Mediation must be conducted, attempted, or refused in writing

by a parent of the infant, toddler, preschool child or child whose

early intervention or special education services (including related

services) are at issue before a request for, or initiation of, a

hearing authorized by this appendix. Any request by the Section 6

School System or Military Department for a hearing under this

appendix shall state how this requirement has been satisfied. No

stigma may be attached to the refusal of a parent to mediate or to

an unsuccessful attempt to mediate.

D. Practice and Procedure

1. Hearing

a. Should mediation be refused or otherwise fail to resolve the

issues on the provision of early intervention services or a free,

appropriate public education to a disabled infant, toddler,

preschool child or child or the identification, evaluation, or

educational placement of such an individual, the parent or either

the school principal, on behalf of the Section 6 School System, or

the military medical treatment facility commander, on behalf of the

Military Department having jurisdiction over the infant or toddler,

may request and shall receive a hearing before a hearing officer to

resolve the matter. The parents of an infant, toddler, preschool

child or child and the Section 6 School System or Military

Department concerned shall be the only parties to a hearing

conducted under this appendix.

b. The party seeking the hearing shall submit a written request,

in the form of a petition, setting forth the facts, issues, and

proposed relief, to the Director, DOHA. The petitioner shall deliver

a copy of the petition to the opposing party (that is, the parent or

the school principal, on behalf of the Section 6 School System, or

the military medical treatment facility commander, on behalf of the

Military Department), either in person or by first-class mail,

postage prepaid. Delivery is complete upon mailing. When the Section

6 School System or Military Department petitions for a hearing, it

shall inform the other parties of the deadline for filing an answer

under paragraph D.1.c. of this appendix, and shall provide the other

parties with a copy of this part.

c. An opposing party shall submit an answer to the petition to

the Director, DOHA, with a copy to the petitioner, within 15

calendar days of receipt of the petition. The answer shall be as

full and complete as possible, addressing the issues, facts, and

proposed relief. The submission of the answer is complete upon

mailing.

d. Within 10 calendar days after receiving the petition, the

Director, DOHA, shall assign a hearing officer, who then shall have

jurisdiction over the resulting proceedings. The Director, DOHA,

shall forward all pleadings to the hearing officer.

e. The questions for adjudication shall be based on the petition

and the answer, provided that a party may amend a pleading if the

amendment is filed with the hearing officer and is received by the

other parties at least 5 calendar days before the hearing.

f. The Director, DOHA, shall arrange for the time and place of

the hearing, and shall provide administrative support. Such

arrangements shall be reasonably convenient to the parties.

g. The purpose of a hearing is to establish the relevant facts

necessary for the hearing officer to reach a fair and impartial

determination of the case. Oral and documentary evidence that is

relevant and material may be received. The technical rules of

evidence shall be relaxed to permit the development of a full

evidentiary record, with the Federal Rules of Evidence (28 U.S.C.)

serving as a guide.

h. The hearing officer shall be the presiding officer, with

judicial powers to manage the proceeding and conduct the hearing.

Those powers shall include the authority to order an independent

evaluation of the child at the expense of the Section 6 School

System or Military Department concerned and to call and question

witnesses.

i. Those normally authorized to attend a hearing shall be the

parents of the individual with disabilities, the counsel and

personal representative of the parents, the counsel and professional

employees of the Section 6 School System or Military Department

concerned, the hearing officer, and a person qualified to transcribe

or record the proceedings. The hearing officer may permit other

persons to attend the hearing, consistent with the privacy interests

of the parents and the individual with disabilities, provided the

parents have the right to an open hearing upon waiving in writing

their privacy rights and those of the individual with disabilities.

j. A verbatim transcription of the hearing shall be made in

written or electronic form and shall become a permanent part of the

record. A copy of the written transcript or electronic record of the

hearing shall be made available to a parent upon request and without

cost. The hearing officer may allow corrections to the written

transcript or electronic recording for the purpose of conforming it

to actual testimony after adequate notice of such changes is given

to all parties.

k. The hearing officer's decision of the case shall be based on

the record, which shall include the petition, the answer, the

written transcript or the electronic recording of the hearing,

exhibits admitted into evidence, pleadings or correspondence

properly filed and served on all parties, and such other matters as

the hearing officer may include in the record, provided that such

matter is made available to all parties before the record is closed

under paragraph D.1.m. of this appendix.

l. The hearing officer shall make a full and complete record of

a case presented for adjudication.

m. The hearing officer shall decide when the record in a case is

closed.

n. The hearing officer shall issue findings of fact and render a

decision in a case not later than 50 calendar days after being

assigned to the case, unless a discovery request under section D.2.

of this appendix is pending.

2. Discovery

a. Full and complete discovery shall be available to parties to

the proceeding, with the Federal Rules of Civil Procedure (28

U.S.C.) serving as a guide.

b. If voluntary discovery cannot be accomplished, a party

seeking discovery may file a motion to accomplish discovery,

provided such motion is founded on the relevance and materiality of

the proposed discovery to the issues. An order granting discovery

shall be enforceable as is an order compelling testimony or the

production of evidence.

c. A copy of the written or electronic transcription of a

deposition taken by the Section 6 School System or Military

Department concerned shall be made available free of charge to a

parent.

3. Witnesses; Production of Evidence

a. All witnesses testifying at the hearing shall be advised that

it is a criminal offense knowingly and willfully to make a false

statement or representation to a Department or Agency of the United

States Government as to any matter within the jurisdiction of the

Department or Agency. All witnesses shall be subject to cross-

examination by the parties.

b. A party calling a witness shall bear the witness' travel and

incidental expenses associated with testifying at the hearing. The

Section 6 School System or Military Department concerned shall pay

such expenses when a witness is called by the hearing officer.

c. The hearing officer may issue an order compelling the

attendance of witnesses or the production of evidence upon the

hearing officer's own motion or, if good cause be shown, upon motion

of a party.

d. When the hearing officer determines that a person has failed

to obey an order to testify or to produce evidence, and such failure

is in knowing and willful disregard of the order, the hearing

officer shall so certify.

e. The party or the hearing officer seeking to compel testimony

or the production of evidence may, upon the certification provided

for in paragraph D.3.d. of the section, file an appropriate action

in a court of competent jurisdiction to compel compliance with the

hearing officer's order.

4. Hearing Officer's Findings of Fact and Decision

a. The hearing officer shall make written findings of fact and

shall issue a decision setting forth the questions presented, the

resolution of those questions, and the rationale for the resolution.

The hearing officer shall file the findings of fact and decision

with the Director, DOHA, with a copy to the parties.

b. The Director, DOHA, shall forward to the Director, Section 6

Schools or the Military Department concerned and the Domestic

Advisory Panel copies, with all personally identifiable information

deleted, of the hearing officer's findings of fact and decision or,

in cases that are administratively appealed, of the final decision

of the DOHA Appeal Board.

c. The hearing officer shall have the authority to impose

financial responsibility for early intervention services,

educational placements, evaluations, and related services under his

or her findings of fact and decision.

d. The findings of fact and decision of the hearing officer

shall become final unless a notice of appeal is filed under section

F.1. of this appendix. The Section 6 School System or Military

Department concerned shall implement a decision as soon as

practicable after it becomes final.

E. Determination Without Hearing

1. At the request of a parent of the infant, toddler, preschool

child or child when early intervention or special educational

(including related) services are at issue, the requirement for a

hearing may be waived, and the case may be submitted to the hearing

officer on written documents filed by the parties. The hearing

officer shall make findings of fact and issue a decision within the

period fixed by paragraph D.1.n. of this appendix.

2. The Section 6 School System or Military Department concerned

may oppose a request to waive the hearing. In that event, the

hearing officer shall rule on the request.

3. Documents submitted to the hearing officer in a case

determined without a hearing shall comply with paragraph D.1.g. of

this appendix. A party submitting such documents shall provide

copies to all other parties.

F. Appeal

1. A party may appeal the hearing officer's findings of fact and

decision by filing a written notice of appeal with the Director,

DOHA, within 5 calendar days of receipt of the findings of fact and

decision. The notice of appeal must contain the appellant's

certification that a copy of the notice of appeal has been provided

to all other parties. Filing is complete upon mailing.

2. Within 10 calendar days of the filing the notice of appeal,

the appellant shall submit a written statement of issues and

arguments to the Director, DOHA, with a copy to the other parties.

The other parties shall submit a reply or replies to the Director,

DOHA, within 15 calendar days of receiving the statement, and shall

deliver a copy of each reply to the appellant. Submission is

complete upon mailing.

3. The Director, DOHA, shall refer the matter on appeal to the

DOHA Appeal Board. It shall determine the matter, including the

making of interlocutory rulings, within 60 calendar days of

receiving timely submitted replies under section F.2. of this

appendix. The DOHA Appeal Board may require oral argument at a time

and place reasonable convenient to the parties.

4. The determination of the DOHA Appeal Board shall be a final

administrative decision and shall be in written form. It shall

address the issues presented and set forth a rationale for the

decision reached. A determination denying the appeal of a parent in

whole or in part shall state that the parent has the right under

Pub. L. 101-476, as amended, to bring a civil action on the matters

in dispute in a district court of the United States without regard

to the amount in controversy.

5. No provision of this part or other DoD guidance may be

construed as conferring a further right of administrative review. A

party must exhaust all administrative remedies afforded by this

appendix before seeking judicial review of a determination made

under this appendix.

G. Publication and Indexing of Final Decisions

The Director, DOHA, shall ensure that final decisions in cases

arising under this Appendix are published and indexed to protect the

privacy rights of the parents who are parties in those cases and the

children of such parents, in accordance with 32 CFR part 310.

Dated: July 19, 1994.

L.M. Bynum,

Alternate OSD Federal Register, Liaison Officer, Department of Defense.

[FR Doc. 94-17937 Filed 7-22-94; 8:45 am]

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