Provision of Early Intervention and Special Education Services to Eligible DOD Dependents in Overseas Areas

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 57

[DoD Instruction 1342.12]

Provision of Early Intervention and Special Education Services to

Eligible DOD Dependents in Overseas Areas

AGENCY: Department of Defense.

ACTION: Final rule.

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SUMMARY: Prior to 1991, the Department of Defense Dependents Schools

(DoDDS) was required by the ``Defense Dependent's Education Act of

1978,'' as amended, to adhere to the provisions of the ``Education of

All Handicapped Children Act.'' With the enactment of ``Individuals

with Disabilities Education Act Amendments of 1991,'' the Department of

Defense was required to modify its existing special education program

for children with disabilities, ages 3 through 21, and to provide early

intervention services to children birth through 2 years. This final

rule assigns responsibility for the implementation of the Act to the

Under Secretary of Defense for Personnel and Readiness, reflecting a

reorganization of the Department of Defense; assigns responsibilities

for duties previously assigned to Regional Directors to Area

Superintendents, reflecting a reorganization of the DoDDS; requires DoD

to provide early intervention services to children with disabilities

from birth through 2 years of age, requires DoDDS to extend special

education services to students from 3 through 21 years of age rather

than from 5 through 21; expands the categories of disability to include

both autism and traumatic brain injury; expands special education

services to include both assistive technology and transition; expands

the role of the DoD Coordinating Committee to include early

intervention as well as special education and related services;

establishes a DoD Inter-Component Coordinating Council on Early

Intervention; expands the definition section to include terminology not

contained in the previous part; and transfers the administrative

responsibility for conducting hearings pursuant to this rule to the

Defense Office of Hearings and Appeals.

EFFECTIVE DATE: March 12, 1996.

FOR FURTHER INFORMATION CONTACT: Dr. Rebecca Posante, DOD, Office of

Family Policy, 4015 Wilson Blvd, BCT #3, Arlington, VA 22203-5190, 703-

696-5734.

SUPPLEMENTARY INFORMATION: On May 31, 1995 (60 FR 28362), the

Department of Defense published a proposed rule. Written comments were

invited and due by July 31, 1995. In response to this invitation, six

individuals and organizations submitted comments. In addition, pursuant

to a notice appearing in the Federal Register on July 13, 1995 (60 FR

36081), DoD conducted a public hearing concerning the proposed rule on

August 4, 1995. All written comments and the transcript of the public

hearing are available for public inspection in the DoD Office of Family

Policy at the above address.

The Office of the Secretary of Defense has carefully considered the

views of the public as reflected in the written comments and testimony

at the public hearing. A description of these views and a discussion of

the Department's response to them follow.

General. One commenter noted that the proposed rule did not contain

a reference to 29 U.S.C. 794, Section 504 of the Rehabilitation Act of

1973, as amended. This section does not apply to persons outside of the

United States. Therefore, the final rule will not include a reference

to it.

The same commenter noted that reference should be made to the

Architectural Barriers Act of 1968. This act is implemented in other

regulatory guidance, and therefore does not require reference in this

final rule.

One commenter recommended that consideration be given to

consolidating the DoD Instructions that pertain to the

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Department's overseas and domestic schools' special education and

related services programs. The underlying statutory bases are different

for the DoD domestic and overseas schools and their service delivery

models are different. Therefore, the Department will maintain separate

regulatory guidance.

Section 57.3. One commenter recommended that the final rule include

the term ``psychotherapy'' in the definition of psychological services.

The final rule uses the definition from the U.S. Department of

Education regulation regarding special education. That definition does

not contain the term ``psychotherapy;'' therefore, this recommendation

was not accepted.

Section 57.3. One commenter requested that the reference to early

intervention provided under the supervision of a military health

department be changed to acknowledge that early intervention services

are not necessarily health or medical in nature. The final rule will

not incorporate this suggestion since the assignment of early

intervention to the military medical departments was accomplished for

organizational efficiency.

The same commenter recommended that reference in the definitions to

``medically related services'' might confuse the supportive and

educational nature of occupational therapy in schools and perpetuate a

medical model of services. The final rule will not incorporate this

recommendation. Present practice in the DoD includes occupational

therapy and some other types of related services under the heading of

medically related services because these responsibilities were assigned

to the military medical departments. The Department does not believe

that this has resulted in the use of the medical model in the provision

of medically related services.

Appendix A, Section C.1.M. One commenter noted that the definition

for ``developmental delay'' contained in the proposed rule included two

criteria that were not equivalent. In order to clarify the intent of

the criteria, the definition was changed to the following. ``C.1. The

child is experiencing a developmental delay as measured by diagnostic

instruments and procedures of 2 standard deviations below the mean in

at least one area, or by a 25 percent delay in at least one area on

assessment instruments that yield scores in months, or a developmental

delay of 1.5 standard deviations below the mean in two or more areas,

or by a 20 percent delay on assessment instruments that yield scores in

months in two or more of the following areas of development: cognitive,

physical, communication, social or emotional, or adaptive.''

Appendix B, Section B.1.(e). One commenter recommended that the

term ``education'' be defined for students with disabilities to

delineate clearly that this is a broad concept including socialization

and life skills for more involved students. The Final Rule will not

further define this term since DoD guidance and practice include the

concept of education in the broadest sense of the term.

Appendix B, Section 4. A commenter noted that the frequency of the

reevaluation process should not be limited to every three years, but

should occur each year. This section in the proposed rule states that

``a reevaluation for eligibility must occur at least every three years,

or more frequently.'' Evaluations to determine the need for services

may be completed at any time, and progress reports on goals and

objectives must be developed at each annual review. The final rule

follows the U.S. Department of Education regulation regarding

reevaluation. Therefore, this recommendation will not be incorporated

in the final rule.

Appendix C, Appendix D, and Appendix E. One commenter recommended

expanding the membership on the National Advisory Panel on the

Education of Dependents with Disabilities, the DoD Coordinating

Committee on Early Intervention, Special Education and Related

Services, and the DoD Inter-Component Coordinating Council on Early

Intervention to include individuals who are knowledgeable of early

intervention, special education, and related services in the States and

who have experience in providing those services to children and their

families. The proposed rule conformed to the statutory requirements of

membership. Therefore, the membership of the committees and panel has

not been changed in the final rule.

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

It has been determined that this final rule will not be significant

as defined by Executive Order 12866.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. Chapter

6)

It has been determined that this final rule will not have a

significant economic impact on substantial numbers of small entities

because it affects only eligible DoD dependents in overseas areas.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter

44)

It has been certified that this final rule will not impose any

reporting and recordkeeping requirements under the Paperwork Reduction

Act of 1995.

List of Subjects in 32 CFR Part 57

Education of individuals with disabilities, Elementary and

secondary education, Government employees, Military personnel.

Accordingly, 32 CFR part 57 is revised to read as follows:

PART 57--PROVISION OF EARLY INTERVENTION AND SPECIAL EDUCATION

SERVICES TO ELIGIBLE DOD DEPENDENTS IN OVERSEAS AREAS

Sec.

57.1 Purpose.

57.2 Applicability and scope.

57.3 Definitions.

57.4 Policy.

57.5 Responsibilities.

57.6 Procedures.

Appendix A to part 57--Procedures for the Provision of Early

Intervention Services for Infants and Toddlers with Disabilities and

their Families

Appendix B to part 57--Procedures for Education Programs and

Services for Children with Disabilities, Aged 3 to 21, Inclusive

Appendix C to part 57--The National Advisory Panel (NAP) on the

Education of Dependents with Disabilities

Appendix D to part 57--DoD Coordinating Committee on Early

Intervention, Special Education, and Medically Related Services

Appendix E to part 57--DoD Inter-Component Coordinating Council

(ICC) on Early Intervention

Appendix F to part 57--Mediation and Hearing Procedures

Authority: 20 U.S.C. 921 and 1400.

Sec. 57.1 Purpose.

This part:

(a) Implement policy and update responsibilities and procedures

under 20 U.S.C. 921-932, 20 U.S.C. 1400 et seq., DoD Directive 1342.6

\1\, and DoD Directive 1342.13 \2\ for providing the following:

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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. 57.1(a).

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(1) A free appropriate public education (FAPE) for children with

disabilities who are eligible to enroll in the Department of Defense

Dependent Schools (DoDDS).

(2) Early intervention services for infants and toddlers birth

through age 2 years who, but for their age, would be eligible to enroll

in the DoDDS under DoD Directive 1342.13.

[[Page 2567]]

(3) A comprehensive and multidisciplinary program for early

intervention services for infants and toddlers with disabilities and

their families.

(b) Establishes a National Advisory Panel (NAP) on Education for

Children with Disabilities, ages 3 to 21, inclusive, and a DoD Inter-

Component Council (ICC) on Early Intervention, in accordance with DoD

Directive 5105.4 \3\.

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\3\ See footnote 1 to Sec. 57.1(a).

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(c) Establishes a DoD Coordinating Committee (DoD-CC) on Early

Intervention, Special Education, and Medically Related Services (MRS).

(d) Authorizes implementing instructions consistent with DoD

5025.1-M \4\, and DoD forms consistent with DoD 83201-M \5\, DoD

8910.1-M \6\, and DoD Instruction 7750.7 \7\.

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\4\ See footnote 1 to Sec. 57.1(a).

\5\ See footnote 1 to Sec. 57.1(a).

\6\ See footnote 1 to Sec. 57.1(a).

\7\ See footnote 1 to Sec. 57.1(a).

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Sec. 57.2 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, the Unified

Combatant Commands, the Inspector General of the Department of Defense,

the Defense Agencies, and the DoD Field Activities (hereafter referred

to collectively as ``the DoD Components'').

(b) Does not apply to schools operated by the Department of defense

in the United States, the District of Columbia, the Commonwealth of

Puerto Rico, the Commonwealth of the Northern Marianna Islands, and the

possessions of the United States (excluding the Trust Territory of the

Pacific Islands and Midway Islands).

(c) Applies to infants, toddlers, and children receiving or

entitled to receive early intervention services or special educational

instruction and related services from the Department of Defense, and

their parents.

Sec. 57.3 Definitions.

Area superintendent. The Superintendent of a DoDDS area, or

designee.

Assessment. Techniques, procedures, and/or instruments used to

measure the individual components of an evaluation.

Assistive technology device. Any item, piece of equipment, or

product system that is used to increase, maintain, or improve

functional capabilities of children with disabilities.

Assistive technology service. Any service that directly assists an

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

an assistive technology device. That term includes the following:

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

including a functional evaluation 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 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, 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.

Audiology. A service that includes the following:

(1) Identification of children with auditory impairments.

(2) Determination of the range, nature, and degree of hearing loss,

and communication functions including referral for medical or other

professional attention for the habilitation of hearing.

(3) Provision of habilitative activities, such as language

habilitation, auditory training, speech-reading (lip-reading), hearing

evaluation, and speech conservation.

(4) Creation and administration of programs for the prevention of

hearing loss.

(5) Counseling and guidance of pupils for the prevention of hearing

loss.

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

amplification, selecting and fitting an aid, and evaluating the

effectiveness of amplification.

Autism. A development disability significantly affecting verbal and

nonverbal communication and social interaction generally evident before

age 3 that adversely affects educational performance. That term does

not include a child with characteristics of the disability termed

``serious emotional disturbance.''

Case study committee (CSC). (1) A school-level team comprised of,

among others, the principal, other educators, parents, and MRS

providers who do the following:

(i) Oversee screening and referral of children who may require

special education.

(ii) Oversee the multidisciplinary evaluation of such children.

(iii) Determine the eligibility of the student for special

education and related services.

(iv) Formulate an individualized education curriculum reflected in

an Individualized Education Program (IEP), in accordance with this

part.

(v) Monitor the development, review, and revision of IEPs.

(2) In addition to the required members of the CSC, other

membership will vary depending on the purpose of the meeting. An area

CSC, appointed by the DoDDS Area Superintendent, acts in the absence of

a school CSC. Members of an area CSC may be assigned to augment a

school CSC. The area CSC must have at least two members besides the

parent. One of the DoDDS members must have the authority to commit

DoDDS resources; one shall be qualified to provide, or supervise the

provision of special education. Other members may be selected from the

following groups:

(i) DoDDS regular education personnel.

(ii) DoDDS special education personnel.

(iii) MRS personnel.

Child-find. The ongoing process used by the DoDDS, the Military

Departments, and the other DoD Components to seek and identify children

from birth to age 21, inclusive, who may require early intervention

services or special education and related services. Child-find

activities include the dissemination of information to the public, the

identification and screening of children, and the use of referral

procedures.

Children with disabilities (ages 3 To 21, inclusive). Children,

before graduation from high school or completion of the General

Education Degree, who have one or more impairments, as determined by a

CSC and who need special education and related services.

Consent. That term means the following:

(1) The parent is fully informed of all information about the

activity for which consent is sought in the native language or in

another mode of communication, if necessary.

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

implementation of the activity for which permission is sought. That

consent describes the activity, lists the child's records (if any) to

be released outside the Department of Defense, and specifies to whom

the records shall be sent. The signed consent acknowledges

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the parent's understanding that the parental consent is voluntary and

may be revoked at any time.

Counseling service. A service provided by a qualified social

worker, psychologist, guidance counselor, or other qualified personnel.

Deaf-blindness. Concomitant hearing and visual impairments. That

disability causes such severe communication, developmental, and

educational problems that it cannot be accommodated in special

education programs solely for children with deafness or blindness.

Deafness. A severe hearing loss or deficit that impairs a child's

ability to process linguistic information through hearing, with or

without amplification, and affects the educational performance

adversely.

Developmental delay. That term means the following:

(1) A significant discrepancy in the actual functioning of an

infant, toddler, or child, birth through age 5, when compared with the

functioning of a nondisabled infant, toddler, or child of the same

chronological age in any of the following areas: physical, cognitive,

communication, social or emotional, and adaptive developmental as

measured using standardized evaluation instruments and confirmed by

clinical observation and judgment.

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

birth through age 2, with a diagnosed physical or mental condition,

such as chromosomal disorders and genetic syndromes, that places the

infant or toddler at substantial risk of evidencing a developmental

delay without the benefit of early intervention services.

Early identification. The implementation of a formal plan for

identifying a disability as early as possible in a child's life.

Early intervention services. (1) Developmental services that meet

the following criteria:

(i) Are provided under the supervision of a Military medical

Department.

(ii) Are provided using Military Health Services System resources

at no cost to the parents. Parents may be charged in those instances

where Federal law provides for a system of payments by families

including a schedule of sliding fees, if any, (and incidental fees

identified in Service guidance) that are normally charged to infants,

toddlers, and children without disabilities or to their parents.

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

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

(A) Physical.

(B) Cognitive.

(C) Communication.

(D) Social or emotional.

(E) Adaptive development.

(iv) Meet the standards developed or adopted by the Department of

Defense.

(v) Are provided by qualified personnel including early childhood

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.

(vi) Maximally, are provided in natural environments including the

home and community settings where infants and toddlers without

disabilities participate.

(vii) Are provided in conformity with an Individualized Family

Service Plan (IFSP).

(2) Developmental services include, but are not limited to, the

following services: family training, counseling, and home visits;

special instruction; speech pathology and audiology; occupational

therapy; physical therapy; psychological services; service 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

necessary to enable an infant or toddler and the family to receive

early intervention services.

Eligible. The term refers to children who meet the age, command

sponsorship, and dependency requirements established by the DDEA, as

amended, 20 U.S.C. 921 et seq. and DoD Directive 1342.13. When those

conditions are met, children without disabilities, ages 5 to 21, and

children with disabilities, ages 3 to 21, inclusive, are authorized to

receive educational instruction from the DoDDS. Additionally, an

eligible infant or toddler with disabilities is a child from birth

through age 2 years who meets all of the DoDDS eligibility requirements

except for the age requirement. In school year 1994 through 1995,

multidisciplinary assessments, IFSPs, and case management services

shall be required and beginning in school year 1995 through 1996, an

eligible infant or toddler is entitled to receive early intervention

services, in accordance with 20 U.S.C. 1400 et seq.

Evaluation. The synthesis of assessment information by a

multidisciplinary team used to determine whether a particular child has

a disability, the type and extent of the disability, and the child's

eligibility to receive early intervention or special education and/or

related services.

Family training, counseling, and home visits. Services provided by

social workers, psychologists, and other qualified personnel to assist

the family of an infant or toddler eligible for early intervention

services. Those services assist a family in understanding the special

needs of the child and enhancing the child's development.

Free appropriate public education (FAPE). Special education and

related services that do the following:

(1) Are provided at no cost to parents of a child with a

disability, and are under the general supervision and direction of the

DoDDS.

(2) Are provided in the least restrictive environment at a

preschool, elementary, or secondary school.

(3) Are provided in conformity with an IEP.

(4) Meet the requirements of this part.

Functional vocational evaluation. A student-centered appraisal

process for vocational development and career decision making. It

allows students, educators, and others to gather information about such

development and decision making. Functional vocational evaluation

activities for transitional, vocational, and career planning;

instructional goals; objectives; and implementation.

Health services. Services necessary to enable an infant or toddler

to benefit from the other early intervention services being received

under this part. That term includes the following:

(1) Services such as clean intermittent catheterization,

tracheotomy care, tube feeding, changing of dressings or colostomy

collection bags, and other health services.

(2) Consultation by physicians with other service providers about

the special healthcare needs of infants and toddlers with disabilities

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

intervention services.

(3) That term does not include the following:

(i) Services that are surgical or solely medical.

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

(iii) Medical or health services routinely recommended for all

infants or toddlers.

Hearing impairment. An impairment in hearing, whether permanent or

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fluctuating, which adversely affects a child's educational performance,

but is not included under deafness.

Independent evaluation. An evaluation conducted by a qualified

examiner who is not employed by the DoDDS.

Individualized education program (IEP). A written document defining

specially designed instruction for a student with a disability, ages 3

to 21, inclusive. That document is developed and implemented, in

accordance with this part.

Individualized family service plan (IFSP). A written document for

an infant or toddler, age birth through 2, with a disability and the

family of such infant or toddler that is based on a multidisciplinary

assessment of the unique needs of the child and concerns and priorities

of the family, and identifies the early intervention and other services

appropriate to meet such needs, concerns, and priorities.

Infants and toddlers with disabilities. Children, ages birth

through 2, who need early intervention services because they:

(1) Are experiencing a developmental delay; or,

(2) Have a diagnosed physical or mental condition that has high

probability of resulting in a developmental delay.

Inter-component. Cooperation among DoD organizations and programs,

ensuring coordination and integration of services to infants, toddlers,

children with disabilities and to their families.

Medical services. Those evaluative, diagnostic, therapeutic, and

supervisory services provided by a licensed and /or 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.

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

definition ``Medical services'') are those services provided under

professional medical supervision, which are required by a CSC to

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

student is eligible, the special education and related services

required by the student under this part.

(2) Direct or indirect services under the development or

implementation of an IEP necessary for the student to benefit from the

educational curriculum. Those services may include medical services for

diagnostic or evaluative purpose, social work, community health

nursing, dietary, occupational therapy, physical therapy, audiology,

ophthalmology, and psychological testing and therapy.

Meetings. All parties attending a meeting to determine eligibility

or placement of a child shall appear personally at the meeting site on

issuance of written notice and establishment of a date convenient to

the concerned parties. When a necessary participant is unable to

attend, electronic communication suitable to the occasion may be used

to involve the unavailable party. Parents generally shall be

responsible for the cost of travel to personally attend meetings about

the eligibility or placement of their child.

Mental retardation. Significantly subaverage general intellectual

functioning, existing concurrently with deficits in adaptive behavior.

That disability is manifested during the developmental period and

adversely affects a child's educational performance.

Multidisciplinary. The involvement of two or more disciplines or

professions in the integration and coordination of services, including

evaluation and assessment activities, and development of an IFSP or an

IEP.

Native language. When used with reference to an individual of

limited English proficiency, the home language normally used by such

individuals, or in the case of a child, the language normally used by

the parent of the child.

Natural environments. Settings that are natural or normal (e.g.,

home or day care setting) for the infant, toddler, or child's same-age

peers who have no disability.

Non-DoDDS placement. An assignment by the DoDDS of a child with a

disability to a non-DoDDS school or facility.

Non-DoDDS school or facility. A public or private school or other

institution not operated by the DoDDS.

Nutrition services. Those services to infants and toddlers include

the following:

(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 plans to address the nutritional

needs of infants and toddlers eligible for early intervention services.

(3) Making referrals to community resources to carry out nutrition

goals.

Occupational therapy. That term includes services to address the

functional needs of children (birth to age 21, inclusive) related to

adaptive development; adaptive behavior and play; and sensory, motor,

and postural development. Those services are designed to improve the

child's functional ability to perform tasks in home, school, and

community settings, and include the following:

(1) Identification, assessment, and intervention.

(2) Adaption of the environment and selection, design, and

fabrication of assistive and orthotic devices to help development and

promote the acquisition of functional skills.

(3) Prevention or minimization of the impact of initial or future

impairment, delay in development, or loss of functional ability.

Orthopedic impairment. A severe physical impairment that adversely

affects a child's educational performance. That term includes

congenital impairments such as club foot or absence of some member;

impairments caused by disease, such as poliomyelitis and bone

tuberculosis, and impairments from other causes such as cerebra palsy,

amputations, and fractures or burns causing contractures.

Other health impairment. Limited strength, vitality, or alterness

due to chronic or acute health problems that adversely affect a child's

educational performance. Such impairments include heart condition,

tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia,

hemophilia, seizure disorder, lead poisoning, leukemia, diabetes, or

attention deficit disorder.

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, if such person stands

in loco parentis to that child and contributes at least one-half of the

child's support.

Parent counseling and training. A service to assist parents in

understanding the special needs of their child's development and by

providing them with information on child development and special

education.

Personally identifiable information. Information that would make it

possible to identify the infant, toddler, or child with reasonable

certainty. Examples include name, parent's name, address, social

security number, or a list of personal characteristics.

Physical therapy. That term includes services to children (birth to

age 21, inclusive) to address the promotion of sensorimotor function

through enhancement of musculoskeletal status, neurobehavioral

organization, perceptual and motor development,

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cardiopulmonary status, and effective environmental adaption. Those

services include the following:

(1) Screening, evaluation, and assessment to identify movement

dysfunction.

(2) Obtaining, interpreting, and integrating information to

appropriate program planning to prevent, alleviate, or compensate for

movement dysfunction and related functional problems.

(3) Providing individual and group services or treatment to

prevent, alleviate, or compensate for movement dysfunction and related

functional problems.

Primary referral source. Parents and the DoD Components, including

child development centers, pediatric clinics, and newborn nurseries,

that suspect an infant or toddler has a disability and brings the child

to the attention of the EIP.

Psychological services. A service that includes the following:

(1) Administering psychological and educational tests and other

assessment procedures.

(2) Interpreting test and assessment results.

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

child's behavior and conditions to learning.

(4) Consulting with other staff members, including service

providers, to plan programs to meet the special needs of children, as

indicated by psychological tests, interviews, and behavioral

evaluations.

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

including psychological counseling for children and parents, family

counseling, consultation on child development, parent training, and

education programs.

Public awareness program. Activities or print materials focusing on

early identification of infants and toddlers with disabilities.

Materials may include information prepared and disseminated by a

military medical department to all primary referral sources and

information for parents on the availability of early intervention

services. Procedures to determine the availability of information on

early intervention services to parents are also included in that

program.

Qualified. A person who meets the DoD-approved or recognized

certification, licensing, or registration requirements or other

comparable requirements in the area in which the person provides

special education or related services or early intervention services to

an infant, toddler, or child with a disability.

Recreation. A related service that includes the following.

(1) Assessment of leisure activities.

(2) Therapeutic recreational activities.

(3) Recreational programs in schools and community agencies.

(4) Leisure education.

Rehabilitation counseling. Services provided by a rehabilitation

counselor or other qualified personnel in individual or group sessions

that focus specifically on career development, employment preparation,

achieving independence, and integration in the workplace and community

of the student with a disability.

Related services. Transportation and such developmental,

corrective, and other supportive services as required to assist a

child, age 3 to 21, inclusive, with a disability to benefit from

special education under the child's IEP. The term includes speech

therapy and audiology, psychological services, physical and

occupational therapy, recreation, early identification and assessment

of disabilities in children, counseling services, and medical services

for diagnostic or evaluative purposes. That term also includes

rehabilitation counseling services, school health services, social work

services in schools, and parent counseling. The sources for those

services are school, community, and medical treatment facilities

(MTFs).

School health services. Services provided by a qualified school

nurse or other qualified person.

Separate facility. A school or a portion of a school, regardless of

whether it is operated by the DoDDS, attended exclusively by children

with disabilities.

Serious emotional disturbance. A condition confirmed by clinical

evaluation and diagnosis and that, over a long period of time and to a

marked degree, adversely affect educational performance, and exhibits

one or more of the following characteristics:

(1) Inability to learn that cannot be explained by intellectual,

sensory, or health factors.

(2) Inability to build or maintain satisfactory interpersonal

relationships with peers and teachers.

(3) Inappropriate types of behavior under normal circumstances.

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

with personal or school problems.

(5) A general pervasive mood of unhappiness or depression. Includes

children who are schizophrenic, but does not include children who are

socially maladjusted unless it is determined they are seriously

emotionally disturbed.

Service coordination. Activities of a service coordinator to assist

and enable an infant or toddler and the family to receive the rights,

procedural safeguards, and services that are authorized to be provided

under the DoD EIP. Those activities include the following:

(1) Coordinating the performance of evaluation and assessments.

(2) Assisting families to identify their resources, concerns, and

priorities.

(3) Facilitating and participating in the development, review, and

evaluation of IFSPs.

(4) Assisting in identifying available service providers.

(5) Coordinating and monitoring the delivery of available services.

(6) Informing the family of support or advocacy services.

(7) Coordinating with medical and health providers.

(8) Facilitating the development of a transition plan to preschool

services.

Service provider. Any individual who provides services listed in an

IEP or an IFSP.

Social work services in schools. A service that includes the

following:

(1) Preparing a social or developmental history on a child with a

disability.

(2) Counseling a child and the family on a group or individual

basis.

(3) Working with those problems in a child's home, school, or

community that adversely affect adjustment in school.

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

receive maximum benefit from the educational program.

Special education. Instruction and related services for which a

child, age 3 to 21, inclusive, becomes entitled when a CSC determines a

child's educational performance is adversely affected by one or more

disabling conditions.

(1) Special education is specially designed instruction, including

physical education, which is provided at no cost to the parent or

guardians to meet the unique needs of a child with a disability,

including instruction conducted in the classroom, in the home, in

hospitals and institutions, and in other settings.

(2) That term includes speech therapy 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 child with a disability.

(3) That 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.

(4) At no cost. For a child eligible to attend the DoDDS without

paying

[[Page 2571]]

tuition, specially designed instruction and related services are

provided without charge. Incidental fees normally charged to

nondisabled students or their parents as a part of the regular

educational program may be imposed.

(5) Physical education. The development of the following:

(i) 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.

(6) Vocational education. Organized educational programs for the

preparation of individuals for paid or unpaid employment or for

additional preparation for a career requiring other than a

baccalaureate or advanced degree.

Special instruction. That term includes the following:

(1) The design of learning environments and activities to promote

acquisition of skills in a variety of developmental areas, including

cognitive processes and social interaction.

(2) Curriculum planning, including the planned interaction of

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

outcomes in an IEP or an IFSP.

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

enhance skill development.

(4) Working with a child to enhance development and cognitive

processes.

Specific learning impairment. 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, remember, or do

mathematical calculations. That term includes such conditions as

perceptual disabilities, brain injury, minimal brain dysfunction,

dyslexia, and developmental aphasia. The term, commonly called,

``specific learning disability,'' does not include learning problems

that are primarily the result of visual, hearing, or motor

disabilities; mental retardation; emotional disturbance; or

environmental, cultural, or economic differences.

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

child's educational performance.

Speech therapy. That related service includes the following:

(1) Identification of children with communicative or oropharyngeal

disorders and delays in development of communication skills.

(2) Diagnosis and appraisal of specific speech or language

impairments.

(3) Referral for medical or other professional attention to correct

or habilitate speech or language impairments.

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

habilitation, and prevention of communicative impairments.

(5) Counseling and guidance of children, parents, and teachers for

speech and language impairments.

Transition services. That term means the following:

(1) A coordinated set of activities for a student that may be

required to promote movement from early intervention, preschool, and

other educational programs into different educational settings or

programs.

(2) For students 14 years of age and older, transition services are

designed in an outcome-oriented process which promotes movement from

school to postschool activities; including, post-secondary education,

vocational training, integrated employment; and including supported

employment, continuing and adult education, adult services, independent

living, or community participation. The coordinated set of activities

shall be based on the individual student's needs, considering the

student's preferences and interests, and shall include instruction,

community experiences, the development of employment and other

postschool adult living objectives, and acquisition of daily living

skills and functional vocational evaluation.

Transportation. A service that includes the following:

(1) Services rendered under the IEP of a child with a disability:

(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 in and around school buildings.

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

lifts, and ramps, if required to provide transportation for a child

with a disability.

(2) Transportation and related costs for early intervention

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

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

parking expenses) that are necessary to enable an eligible child and

the family to receive early intervention services.

Traumatic brain injury. An acquired injury to the brain caused by

an external physical force resulting in total or partial functional

disability or psychosocial impairment that adversely affects

educational performance. That 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, information

processing, and speech. That term does not include brain injuries that

are congenital or degenerative, or brain injuries that are induced by

birth trauma.

Vision services. Services necessary to habilitate or rehabilitate

the effects of sensory impairment resulting from a loss of vision.

Visual impairment. An impairment of vision that, even with

correction, adversely affects a child's educational performance. That

term includes both partially seeing and blind children.

Sec. 57.4 Policy.

It is DoD policy that:

(a) Eligible infants and toddlers with disabilities and their

families shall be entitled to receive early intervention services

consistent with Appendix A to this part.

(b) Eligible children with disabilities, ages 3 to 21, inclusive,

shall be provided a FAPE in the least restrictive environment,

consistent with Appendix B to this part.

(c) Parents of eligible infants, toddlers, and children with

disabilities from birth to age 21, inclusive, shall be full

participants in early intervention and special education services.

Sec. 57. 5 Responsibilities.

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

shall:

(1) Establish a NAP consistent with Appendix C to this part.

(2) Establish and chair, or designate a ``Chair,'' of the DoD-CC on

Early Intervention, Special Education, and MRS consistent with Appendix

D to this part.

(3) Establish and chair, or designate a ``Chair,'' of the DoD

Inter-Component Coordinating Council (ICC) on Early Intervention

consistent with Appendix E to this part.

(4) Ensure compliance with this part in the provision of early

intervention services, special education, and related

[[Page 2572]]

services through the DoD-CC, in accordance with DoD Instruction 1342.14

\8\ and other appropriate guidances.

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\8\ See footnote 1 to Sec. 57.1(a).

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(5) In consultation with the General Counsel of the Department of

Defense (GC, DoD) and the Secretaries of the Military Departments, do

the following:

(i) Ensure that eligible infants and toddlers with disabilities and

their families are provided early intervention services under 20 U.S.C.

921 et seq. and 1400 et seq.

(ii) Ensure the coordination of early intervention, special

education, and related services.

(iii) Ensure the development of a DoD-wide comprehensive child-find

system to identify eligible infants, toddlers, and children ages birth

to age 21, inclusive, under 20 U.S.C 921 et seq. and 1400 et seq. who

may require early intervention or special education services.

(iv) Ensure that DoD personnel are trained to provide the mediation

services specified in Appendix F to this part.

(v) Ensure that transition services are available to promote

movement from early intervention, preschool, and other educational

programs into different educational settings and postsecondary

environments.

(vi) Ensure that DoD personnel who provide services (e.g., child

care, medical care, and recreation) to infants and toddlers and their

families are participants in a comprehensive inter-Component system for

early intervention services.

(vii) Assign functions and geographic regions of responsibility to

the Military Departments for providing MRS and early intervention

services.

(viii) Ensure that the Military Departments deliver the following:

(A) A comprehensive, coordinated and multidisciplinary program

of early intervention services for eligible infants and toddlers

with disabilities.

(B) MRS for eligible children with disabilities, ages 3 to 21,

inclusive.

(ix) Ensure that qualified personnel participate in providing

transition services for eligible infants, toddlers, and children

with disabilities from birth to age 21, inclusive.

(x) Ensure the development and implementation of a comprehensive

system of personnel development for the DoDDS and the Military

Departments. That system shall include professionals,

paraprofessionals, and primary referral source personnel in the

areas of early intervention, special education, and MRS. That system

may include the following:

(A) Implementing innovative strategies and activities for the

recruitment and retention of providers of early intervention

services, special education, and MRS.

(B) Ensuring that personnel requirements are established

consistent with recognized certification, licensing, registration,

or other comparable requirements for personnel providing early

intervention services, special education, or MRS.

(C) Ensuring that training is provided in and across

disciplines.

(D) Training providers of early intervention services, special

education, and MRS to work overseas.

(xi) Develop procedures to compile data on the numbers of

eligible infants and toddlers with disabilities and their families

in need of early intervention services, in accordance with DoD

Directives 5400.7 and 5400.11.\9\ Those data elements shall include

the following:

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\9\ See footnote 1 to Sec. 57.1(a).

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(A) The number of infants and toddlers and their families

served.

(B) The types of services provided.

(C) Other information required to evaluate the implementation of

early intervention programs (EIPs).

(xii) Resolve disputes in the DoD Components arising under

Appendix A to this part.

(b) The Secretaries of the Military Departments shall:

(1) Provide MRS for eligible children with disabilities, ages 3

to 21, inclusive.

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

intra-Component, and community-based system of early intervention

services for eligible infants and toddlers with disabilities and

their families.

(3) Design and implement activities to ensure compliance through

technical assistance and program evaluation for early intervention

and MRS.

(c) The Director, Department of Defense Education Activity,

shall ensure that the Director, DoDDS, does the following:

(1) Ensures that eligible children with disabilities, ages 3 to

21, inclusive, are provided a FAPE.

(2) Ensures that the educational needs of children with and

without disabilities are met comparably, consistent with Appendix B

to this part.

(3) Ensures that educational facilities and services operated by

the DoDDS for children with and without disabilities are comparable.

(4) Maintains records on special education and related services

provided to eligible children with disabilities, ages 3 to 21,

inclusive, consistent with DoD Directive 5400.11.

(5) Provides any or all special education and related services

required by a child with a disability, ages 3 to 21, inclusive,

other than those furnished by the Secretaries of the Military

Departments. The Director, DoDDS, may act through inter-Agency,

intra-Agency, and inter-Service arrangements, or through contracts

with private parties when funds are authorized and appropriated.

(6) Participates in the development and implementation of a

comprehensive system of personnel development.

(7) Undertakes activities to ensure compliance by the DoDDS with

this part through monitoring, technical assistance, and program

evaluation of special education and those related services provided

by the DoDDS.

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

the General Counsel of the Department of Defense, shall ensure

impartial due process hearings are provided consistent with Appendix

F to this part.

Sec. 57.6 Procedures.

(a) The procedures for early intervention services for infants and

toddlers with disabilities and their families are prescribed in

Appendix A to this part.

(b) The procedures for educational programs and services for

children with disabilities, ages 3 to 21, inclusive, are prescribed in

Appendix B to this part.

(c) The procedures for conducting hearings are prescribed in

Appendix F to this part.

Appendix A to Part 57--Procedures for the Provision of Early

Intervention Services for Infants and Toddlers With Disabilities and

Their Families

A. Requirements for an Early Intervention Program (EIP)

1. All eligible infants and toddlers with disabilities from

birth through age 2 and their families shall receive early

intervention services, as follows:

a. In school years 1991 through 1994, the Department of Defense

planned and continues to develop a comprehensive, coordinated,

multidisciplinary program of early intervention services for infants

and toddlers with disabilities among DoD entities involved in

providing such services.

b. In school year 1994 through 1995, the Department of Defense

implemented and shall continue to implement the following program

components described in paragraph A.1.a. of this Appendix:

(1) Multidisciplinary assessments.

(2) IFSPs.

(3) Service coordination.

c. In school year 1995 through 1996, the Department of Defense

shall implement the program described in paragraph A.1.a. of this

Appendix. \1\

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\1\ The EIP shall be continuously implemented.

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2. Early intervention services shall be provided in the natural

environment.

3. Parents of infants and toddlers with disabilities are to be

full and meaningful participants in the EIP.

B. Military Department Responsibilities

Each Military Department shall develop and implement in its

assigned geographic area a system to provide for the following:

1. A comprehensive child find procedure coordinated with the

DoDDS child find system and primary referral sources such as the

child development center and the pediatric clinic.

2. Administration and supervision of EIPs and services.

3. Identification of available resources and coordination with

those resource providers,

[[Page 2573]]

including the DoD Components, who routinely provide services to

infants and toddlers without disabilities and their families.

4. Procedures to provide timely services for infants and

toddlers with disabilities and their families.

5. Procedures to resolve inter-Component disputes about the

delivery of early intervention services.

6. Procedures to collect and report data reflecting the number

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

services provided, and other information required by the USD(P&R)

implementation of early intervention services.

7. Multidisciplinary, comprehensive, and functional assessment

of the unique strengths and needs of infants or toddlers and the

identification of services to meet those needs.

8. Procedures for a family-directed assessment to determine

resources, priorities, and concerns of a family and to identify

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

child's needs.

9. An IFSP that details the early intervention services and the

coordination of those services.

10. A public awareness program focusing on early identification

of infants and toddlers with disabilities.

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

intervention services and other relevant resources available in each

military community overseas.

12. Information to parents about their EIP procedural

safeguards.

13. Establishment of ICCs at appropriate levels. Memberships

shall include parents and the DoD Components who are involved in the

delivery of early intervention services.

14. Policies and procedures for the establishment and

maintenance of standards to ensure that personnel necessary to carry

out the EIP are prepared and trained.

C. Eligibility

Infants and toddlers with disabilities from birth through age 2

are eligible for early intervention services because they meet one

of the following criteria:

1. The child is experiencing a developmental delay as measured

by diagnostic instruments and procedures of 2 standard deviations

below the mean in at least one area, or by a 25 percent delay in at

least one area on assessment instruments that yield scores in

months, or a developmental delay of 1.5 standard deviations below

the mean in two or more areas, or by a 20 percent delay on

assessment instruments that yield scores in months in two or more of

the following areas of development: Cognitive, physical,

communication, social or emotional, or adaptive.

2. The child has a diagnosed physical or mental condition which

has a high probability of resulting in developmental delay; e.g.,

chromosomal disorders or genetic syndromes.

D. IFSP

1. Each military medical department shall develop and implement

procedures to ensure that an IFSP is developed by a

multidisciplinary team including the parents of each infant or

toddler with a disability who meets the eligibility criteria in

section C.1. of this appendix.

2. Meetings to develop and review the IFSP must include the

following participants:

a. The parent or parents of the child.

b. Other family members, as requested by the parent, if

possible.

c. An advocate outside of the family, if the parent requests

that person's participation.

d. The EIP services coordinator who has worked with the family

since the initial referral of the child or who has been designated

as ``responsible for the implementation of the IFSP.''

e. The person(s) directly involved in conducting the evaluations

and assessments.

f. As appropriate, persons who shall provide services to the

child or family.

3. If a person listed in section D.2. of this appendix is unable

to attend a meeting, arrangements must be made for the person's

involvement through other means, including the following:

a. Participating in a telephone conference call.

b. Having a knowledgeable representative attend the meeting.

c. Making pertinent records available at the meeting.

4. The IFSP shall be written in a reasonable time after

assessment and shall contain the following:

a. A statement of the child's current developmental levels

including physical, cognitive, communication, social or emotional,

and adaptive behaviors based on acceptable objective criteria.

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

concerns on enhancing the child's development.

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

the child and the family. Additionally, the statement shall contain

the criteria, procedures, and timeliness used to determine the

degree to which progress toward achieving the outcomes is being made

and whether modification or revision of the outcomes and services

are necessary.

d. A statement of the specific early intervention services

necessary to meet the unique needs of the child and the family

including the frequency, intensity, and 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 those services.

g. The name of the EIP service coordinator.

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

toddler with a disability to preschool or other services.

5. The IFSP shall be evaluated at least once a year and the

family shall be provided an opportunity to review the plan at 6-

month intervals (or more frequently, based on the child and family

needs).

6. The contents of the IFSP shall be explained to the parents

and an informed, written consent from the parents shall be obtained

before providing early intervention services described in that plan.

7. With the parent's consent, early intervention services may

begin before the completion of the evaluation and assessment when it

has been determined by a multidisciplinary team that a service is

needed immediately by the child and/or the child's family. Although

all assessments have not been completed, an IFSP must be developed

before the start of services. The remaining assessments must then be

completed in a timely manner.

8. If a parent does not provide consent for participation in all

early intervention services, the services shall still be provided

for those interventions to which a parent does give consent.

E. Procedural Safeguards in the EIP

1. Parents of infants and toddlers with disabilities are

afforded the following procedural safeguards to ensure that their

children receive appropriate early intervention services:

a. The timely administrative resolution of parental complaints,

including hearing procedures in appendix F to this part.

b. The right to confidentiality of personally identifiable

information under DoD Directive 5400.11.\2\

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\2\ Copies may be obtained, at cost, from the National Technical

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

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c. The right to written notice and consent to the release of

relevant information outside the Department of Defense.

d. The right to determine whether they, their child, or other

family members shall accept or decline any early intervention

services without jeopardizing other early intervention services.

e. The opportunity to examine records on assessment, screening,

eligibility determinations, and the development and implementation

of the IFSP.

f. The right to prior written notice when the EIP

multidisciplinary team proposes, or refuses, to initiate or change

the identification, evaluation, placement, or provision of early

intervention services to the infant or toddler with a disability.

g. The right to prior written notice in their native language,

unless it clearly is not possible to do so, which informs them of

all procedural safeguards.

h. During the pendency of any proceeding or action involving a

complaint, unless the EIP and the parents otherwise agree, the child

shall continue to receive the appropriate early intervention

services currently being provided, or, if applying for initial

services, shall receive the services not in dispute.

2. Parents shall be advised of their rights to due process, as

defined in appendix F to this part.

Appendix B to Part 57--Procedures for Educational Programs and Services

for Children With Disabilities, Ages 3 to 21, Inclusive

A. Identification and Screening

It is the responsibility of school officials of the DoDDS to

locate, identify, and with the consent of a child's parent, evaluate

all children who are eligible to enroll in the

[[Page 2574]]

DoDDS under DoD Directive 1342.13 \1\ who may require special

education and related services.

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

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

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

1. Procedures for Identification and Screening. The DoDDS

officials shall conduct the following activities to determine if a

child needs special education and related services:

a. Screen educational records.

b. Screen students using system-wide or other basic skill tests

in the areas of reading, math, and language arts.

c. Screen school health data such as reports of hearing, vision,

speech, or language tests and reports from healthcare personnel

about the health status of a child.

d. Analyze school records to obtain pertinent information about

the basis for suspensions, exclusions, withdrawals, and disciplinary

actions.

e. In cooperation with the Military Departments, conduct on-

going child-finding activities and publish, periodically, any

information, guidelines, and direction on child-find activities for

eligible children with disabilities, ages 3 to 21, inclusive.

f. Coordinate the transition of children from early intervention

to preschool with the Military Services.

2. Referral of a Child for Special Education or Related

Services. The DoDDS officials, MRS providers, or others who suspect

that a child has a possible disabling condition shall refer that

child to the CSC.

B. Assessment and Evaluation

Any eligible child who is referred to a CSC shall receive a full

and comprehensive diagnostic evaluation of educational needs. An

evaluation shall be conducted before an IEP is developed or

placement is made in a special education program.

1. Procedures for Assessment and Evaluation. A CSC shall ensure

that the following elements are included in a comprehensive

assessment and evaluation of a child:

a. Assessment of visual and auditory acuity.

b. A plan to assess the type and extent of the disability. A

child shall be assessed in all areas related to the suspected

disability. When necessary, the assessment plan shall include the

following:

(1) Assessment of the level of functioning academically,

intellectually, emotionally, socially, and in the family.

(2) Observation in an educational environment.

(3) Assessment of physical status including perceptual and motor

abilities.

(4) Assessment of the need for transition services for students

14 years and older, the acquisition of daily living skills, and

functional vocational assessment.

c. The involvement of parents, under this part.

d. The use of all locally available community, medical, and

school resources to accomplish the assessment. At least one

specialist with knowledge in the area of the suspected disability

shall be a member of the multidisciplinary assessment team.

e. The requirement that each assessor prepare an individual

assessment report that describes the instruments and techniques

used, the results of the testing, and the relationship of those

findings to educational functioning.

f. The inclusion of a description of the problem area

constituting the basis for an MRS referral.

2. Standards for Assessment Selection and Procedures. All DoD

elements, including the CSC and MRS providers, shall ensure that

assessment materials and evaluation procedures comply, as follows:

a. Selected and administered so as not to be racially or

culturally discriminatory.

b. Administered in the native language or mode of communication

of the child unless it clearly is not possible to do so.

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

intended to be used.

d. Administered by trained personnel in compliance with the

instructions of the testing instrument.

e. Administered such that no single procedure is the sole

criterion for determining an appropriate educational program for a

child with a disability.

f. Selected to assess specific areas of educational needs and

strengths and not merely to provide a single general intelligence

quotient.

g. Administered to a child with impaired sensor, motor, or

communication skills so that the results reflect a child's actual

ability or level of achievement, and simply not the impaired skill

itself.

3. Determination of Eligibility for Special Education and

Related Services. The CSC shall be convened to determine the

eligibility of a child for special education and related services.

The CSC shall do the following:

a. Ensure that the full comprehensive evaluation of a child is

accomplished by a multidisciplinary team. The team shall be

comprised of teachers or other specialists with knowledge in the

area of the suspected disability.

b. Meet as soon as possible after a child has been assessed to

determine the eligibility of the child for services.

c. Afford the child's parents the opportunity to participate in

the CSC eligibility meeting.

d. Issue a written eligibility report that contains the

following:

(1) A description of the nature of the child's disabling

condition.

(2) A synthesis of the formal and informal findings of the

multidisciplinary assessment team of the child's academic progress.

(3) A summary of information from the parents, the child, or

other persons having significant previous contact with the child.

(4) A determination of eligibility statement.

(5) A list of the educational areas affected by a child's

disability and a description of a child's educational needs.

4. Reevaluation for Eligibility for Special Education and

Related Services. School officials shall provide a comprehensive

reevaluation of a child with a disability every 3 years, or more

frequently, if conditions warrant. The scope and type of the

comprehensive reevaluation shall be determined individually based on

a child's performance, behavior, and needs during the reevaluation.

C. Individualized Education Program (IEP)

The DoDDS officials shall ensure that the CSC develops and

implements an IEP for each child with a disability who is enrolled

in the DoDDS or is placed in another institution by the DoDDS.

1. The CSC Meeting for the Development and Implementation of an

IEP. The CSC shall establish and convene a meeting to develop,

review, or revise the IEP of a child with a disability. That meeting

shall be scheduled as soon as possible following a determination by

the school or area CSC that the child is eligible for special

education and related services. The meeting participants shall,

minimally, include the following:

a. A principal or school representative other than the child's

teacher who is qualified to provide or supervise the provision of

special education.

b. The child's teacher.

c. A special education teacher.

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

e. The child, if appropriate.

f. For a child with a disability who has been evaluated for the

first time, a representative of the evaluation team who is

knowledgeable about the evaluation procedures used and is familiar

with the results of the evaluation.

g. Other individuals invited at the discretion of the parent or

school.

2. Requirements for the Development of the IEP. The CSC shall

prepare the IEP with the following:

a. A statement of the child's present levels of educational

performance.

b. A statement of annual goals including short-term

instructional objectives.

c. Objective criteria for determining, at least annually,

whether the educational objectives are being achieved.

d. A statement of the physical education program provided in one

of the following settings:

(1) In the regular education program.

(2) In the regular education program with adaptations,

modifications, or the use of assistive technology.

(3) Through specially designed instruction based on the goals

and objectives included in the IEP.

e. A statement of the transition services beginning at age 14

and annually, thereafter. When appropriate, include a statement of

the inter-Agency responsibilities or linkages (or both) before the

student leaves the school setting. If a specially designed

instructional program is required, include the goals and objectives

in the IEP.

f. A statement of special transportation requirement.

g. A statement of the amount of time a week that each special

education and related service shall be provided to the child.

h. The extent to which the child shall participate in regular

educational programs, including the following:

(1) The projected date for the initiation and the anticipated

length of IEP activities and services.

(2) Any statements requiring an adjusted school day or an

extended school year program.

[[Page 2575]]

i. A statement of the vocational education program for secondary

students. If a specially designed instructional program is required,

the necessary goals and objectives in the IEP shall be included.

3. Requirements for the Implementation of the IEP. The DoDDS CSC

shall:

a. Obtain parental agreement and signature before implementation

of the IEP.

b. Provide a copy of the child's IEP to the parents.

c. Ensure that the IEP is in effect before a child receives

special education and related services.

d. Review and revise the IEP for each child at least annually in

a CSC meeting.

e. Accept a child's current IEP when he or she transfers to the

DoDDS if the CSC of the gaining school or the area CSC does the

following:

(1) Notifies and obtains consent of the parents to use the

current IEP and all elements contained in it.

(2) Involves the local DoD Component responsible for the

delivery of the MRS of the medical requirements in the IEP.

(3) Initiates a CSC meeting to revise the current IEP.

(4) If necessary, initiates an evaluation of the child.

f. Afford the child's parents the opportunity to participate in

every CSC meeting to determine their child's initial or continuing

eligibility for special education and related services, or to

prepare or change the child's IEP or to determine or change the

child's placement.

g. Ensure that at least one parent understands the special

education procedures including the due process procedures described

in appendix F of this part and the importance of the parent's

participation in those processes. School officials shall use devices

or hire interpreters or other intermediaries who might be necessary

to foster effective communications between the school and the parent

about the child.

h. Provide special education and related services, in accordance

with the IEP. The Department of Defense and its constituent elements

and personnel are not accountable if a child does not achieve the

growth projected in the IEP.

i. Ensure that all provisions developed for any child entitled

to an education by the DoDDS are fully implemented in schools or in

non-DoDDS schools or facilities including those requiring special

facilities, other adaptations, or assistive devices.

D. Placement Procedures and Least Restrictive Environment

1. A child shall not be placed by the DoDDS in any special

education program unless the CSC has developed an IEP. If a child

with a disability is applying for initial admission to a school, the

child shall enter on the same basis as a child without a disability.

A child with a disability and with the consent of a parent and

school officials may receive an initial placement in a special

education program under procedures listed in paragraph C.3.e. of

this appendix.

2. A placement decision requires the following:

a. A parent consent to the placement before actual placement of

the child, except as otherwise provided in section F.2. of this

appendix.

b. Delivery of educational instruction and related services in

the least restrictive environment. To the maximum extent, a child

with a disability should be placed with children who are not

disabled. Special classes, separate schooling, or other removal of a

child with a disability from the regular education environment shall

occur only when the type or severity of the disability is such that

education in regular classes with the use of supplementary aids and

services cannot be achieved satisfactorily.

c. The CSC to base placements on the IEP and to review the IEP

at least annually.

d. A child shall participate, to the maximum extent, in school

activities including meals, assemblies, recess periods, and field

trips with children who are not disabled.

e. Consideration of factors affecting the child's well-being

including the effects of separation from parents.

f. A child shall attend a DoDDS school that is located as close

as possible to the residence of the parent who is sponsoring the

child's attendance. Unless otherwise required by the IEP, the school

should be the same school that the child would have attended had he

or she not been disabled.

E. Children With Disabilities Who Are Placed in a Non-DOD School or

Facility

Children with disabilities who are eligible to receive a DoDDS

education, but are placed in a non-DoDDS school or facility by the

DoDDS, shall have all the rights of children with disabilities who

are enrolled in a DoDDS school. A child with a disability may be

placed in a non-DoDDS school or facility only if required by the

IEP.

1. Requirements for a Non-DoDDS School or Facility Placement

a. Placement in a non-DoDDS school or facility shall be made

under the host-nation requirements.

b. Placement in a non-DoDDS school or facility is subject to all

treaties, Executive agreements, and status of forces agreements

between the United States and the host nations, and all DoD and

DoDDS regulations.

c. If the DoDDS places a child with a disability in a non-DoDDS

school or facility as a means of providing special education and

related services, the program of that institution including

nonmedical care and room and board, as in the child's IEP, must be

provided at no cost to the child or the child's parents. The DoDDS

or the responsible DoD Component shall pay the costs in accordance

with DoD 1010.13-R \2\.

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\2\ See footnote 1 to section A. of this appendix.

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d. Local school officials shall initiate and conduct a meeting

to develop an IEP for the child before placement. A representative

of the non-DoDDS school or facility should attend the meeting. If

the representative cannot attend, the DoDDS officials shall

communicate in other ways to ensure participation including

individual or conference telephone calls. The IEP must meet the

following standards:

(1) Be signed by an authorized DoDDS official before it becomes

valid.

(2) Include a determination that the DoDDS does not currently

have or cannot reasonably create an educational program appropriate

to meet the needs of the child with a disability.

(3) Include a determination that the non-DoDDS school or

facility and its educational program and related services conform to

the requirements of this part.

2. Cost of Tuition For Non-DoDDS School or Facility. The

Department of Defense is not authorized to fund non-DoDDS placement

unless it is directed by the DoDDS Area Superintendent in

coordination with the Director, DoDDS; or it is directed by an

impartial hearing officer or court of competent jurisdiction. A

valid IEP must document the necessity of the placement in a non-

DoDDS school or facility.

F. Procedural Safeguards for Children and Parents

Parents of children with disabilities are afforded procedural

safeguards to ensure that their children receive a free public

education consistent with appendix F to this part.

1. Notice of Procedural Safeguards

a. Parents shall be provided a written notice in a reasonable

time before one of the following:

(1) Receiving a proposal to initiate or change the

identification, evaluation, or educational placement of the child or

the provision of free public education to the child.

(2) Receiving refusal from the DoDDS to initiate or change the

identification, evaluation, or educational placement of the child or

the provision of a free public education.

b. The notice shall inform the parent of the following:

(1) Parental procedural rights detailed in appendix F to this

part.

(2) A description of the action proposed or refused by the DoDDS

with a brief explanation for the decision.

c. The notice shall be provided so as to ensure the parent's

understanding. That may be achieved by using simplified language,

delivering the notice in the parent's native language, or using an

interpreter or other person selected by the parents.

2. Parental Consent

a. The consent of a parent of a child with a disability or

suspected of having a disability shall be obtained before any of the

following:

(1) Initiation of formal evaluation procedures.

(2) Initial educational placement.

(3) Change in educational placement.

b. If the parent refuses consent to any formal evaluation or

initial placement in a special education program, the DoDDs or the

parent may do the following:

(1) Request a conference between the school and parents.

(2) Request mediation.

(3) Initiate an impartial due process hearing under appendix F

to this part, to show cause as to why an evaluation or placement in

a special education program should or should not occur without such

[[Page 2576]]

consent. If the hearing officer sustains the DoDDS position in the

impartial due process hearing, the DoDDS may evaluate or provide

special education and related services to the child without the

consent of a parent, subject to the further exercise of due process

rights.

3. Independent Evaluation

a. A parent is entitled to an independent evaluation at the

expense of the DoDDS if the parent disagrees with the DoDDS

evaluation of the child and successfully challenges the evaluation

in an impartial due process hearing. An independent evaluation

provided at the DoDDS expense must do the following:

(1) Conform to the requirements of this part.

(2) Be conducted, when possible, in the area where the child

resides.

(3) Meet DoD standards governing persons qualified to conduct an

educational evaluation including an evaluation for MRS.

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

hearing sustains the DoDDS evaluation, the parent has the right to

an independent evaluation, but not at the DoDDS expense.

c. The DoDDS, the CSC, and a hearing officer appointed under

this part shall consider any evaluation report presented by a

parent.

4. Access to Records. The parents of a child with a disability

shall be afforded an opportunity to inspect and review educational

records about the identification, evaluation, and educational

placement of the child, and the provision of a free public education

for the child.

5. Due Process Rights

a. The parent of a child with a disability or the DoDDS has the

opportunity to file a written petition for an impartial due process

hearing at the DoDDS expense under appendix F to this part. The

dispute may concern issues effecting a partial child's

identification, evaluation, or placement, or the provision of a free

and appropriate public education.

b. While an impartial due process hearing or judicial proceeding

is pending, unless the DoDDS and a parent of the child agree

otherwise, the child shall remain in the present educational

setting, subject to the disciplinary procedures prescribed in

section H. of this appendix.

6. Dispute Resolution--Other Complaints. A parent, teacher, or

other person covered by this part may file a written complaint about

any aspect of this part that is not a proper subject for

adjudication by a due process hearing officer, in accordance with

DSR 2500.10.\3\

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\3\ Copies of the appropriate forms are available at every

school office.

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G. Confidentiality of Records

The DoDDS officials shall maintain all student records, in

accordance with DoD Directive 5400.11.\4\

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\4\ See footnote 1 to section A. of this appendix.

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H. Disciplinary Procedures

All regular disciplinary rules and procedures applicable to

children receiving educational instruction in the DoDDS shall apply

to children with disabilities who violate school rules and

regulations or disrupt regular classroom activities, subject to the

following provisions:

1. Before suspending or expelling a child with a disability, the

CSC or, a child with a disability in a non-DoDDS school, authorized

DoDDS officials, shall determine the following:

a. Whether the behavioral conduct is the result of the child's

disability.

b. If any change in the educational placement is needed.

2. If it is determined that the child's conduct results in whole

or part from the disability, the child may not be subject to any

regular disciplinary rules and procedures and the following

procedures must be followed:

a. The child's parents shall be notified of the right to have an

IEP meeting before any change in the child's educational placement.

b. The CSC or authorized DoDDS officials shall ensure that a

meeting is held to determine the appropriate educational placement

for the child in consideration of the child's conduct.

c. The child may not be suspended for more than 10 days during a

school year.

3. A child with a disability may be suspended on an emergency

basis when it reasonably appears that the child's behavior may

endanger the health, welfare, or safety of self or any other child,

teacher, or school personnel. The following conditions apply:

a. The child's parents shall be notified immediately of that

suspension and of the time, purpose, and location of the CSC meeting

and of their right to attend the meeting.

b. That suspension remains in effect only for the duration of

the emergency.

4. If it is determined that the child requires a change in

educational placement, the CSC or, in the case of a child with a

disability in a non-DoDDS school, authorized DoDDS officials shall

ensure that a meeting is held to determine the appropriate

educational placement for the child in consideration of the child's

conduct.

Appendix C to Part 57--The National Advisory Panel (Nap) on the

Education of Dependents With Disabilities

A. Membership

The NAP shall meet as needed in publicly announced, accessible

meetings open to the general public and shall comply with DoD

Directive 5105.4\1\. The NAP members, appointed by the Secretary of

Defense, or designee, shall include at least one representative from

each of the following groups.

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

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

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1. Persons with disabilities

2. The DoDDS special education teachers

3. The DoDDS regular education teachers.

4. Parents of children, ages 3 to 21, inclusive, who are

receiving special education from the DoDDS.

5. The staff personnel of the DoDDS Headquarters.

6. Special education program managers from the DoDDS field

activities.

7. Representatives of the Military Departments and overseas

commands, including providers of related services.

8. Providers of the DoD early intervention services.

9. Other appropriate persons.

B. Activities

1. The NAP shall perform the following activities:

a. Review information about improvements in service provided to

children with disabilities, ages 3 to 21, inclusive in the

Department of Defense.

b. Receive and consider comments from parents, students,

professional groups, and individuals with disabilities.

c. When necessary establish committees for short-term purposes

comprised of representatives from parent, student, professional

groups, and individuals with disabilities.

d. Review the findings of fact and decisions of each impartial

due process hearing conducted under appendix F of this part.

e. Assist in developing and reporting such information and

evaluations as may assist the Department of Defense.

f. Make recommendations based on program and operational

information for changes in policy and procedures and in the budget,

organization, and general management of the special education

program.

g. Comment publicly on rules or standards about the education of

children with disabilities, ages 3 to 21, inclusive.

h. Perform such other tasks as may be requested by the USD(P&R)

or the Director, DoDDS.

2. The NAP members shall serve under appointments that shall be

for a term not to exceed 3 years.

C. Reporting Requirements

Submit an annual report of the NAP's activities and suggestions

to the USD(P&R) and the Director, DoDDS, by July 31 of each year.

That report is exempt from formal review and licensing under section

E. of DoD Instruction 7750.7.\2\

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\2\ See footnote 1 to section A. of this appendix.

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Appendix D to Part 57--DoD Coordinating Committee on Early

Intervention, Special Education, and Medically Related Services

A. Committee Membership

The committee shall meet at least twice yearly to facilitate

collaboration in early intervention, special education, and

Medically Related Services (MRS) in the Department of Defense. The

committee shall consist of the following members:

1. A representative of the USD(P&R) or designee, who shall serve

as the Chair.

2. Representatives of the Secretaries of the Military

Departments.

3. Representatives of the Assistant Secretary of Defense (Health

Affairs) (ASD(HA)).

[[Page 2577]]

4. Representatives from the DoD school systems (domestic and

overseas).

5. Representatives from the GC, DoD.

B. Responsibilities

1. Advise and assist the USD(P&R) in the performance of his or

her responsibilities.

2. At the direction of the USD(P&R), advise and assist the

Military Departments, and the DoD school systems (overseas and

domestic) in the coordination of services among providers of early

intervention, special education, and MRS.

3. Ensure compliance in the provision of early intervention

services for infants and toddlers and special education and related

services for children ages 3 to 21, inclusive.

4. Oversee the coordination of early intervention, special

education, and related services.

5. Review the recommendations of the NAP and the Early

Intervention ICC to identify common concerns, ensure coordination of

effort, and forward issues requiring resolution to the USD(P&R).

6. Promote the coordination of services and information sharing

among the providers of early intervention, special education, and

MRS.

7. Assist in the coordination of assignments of sponsors who

have children with disabilities who are or who may be eligible for

special education and MRS in the DoDDS or the EIP through the

Military Departments.

Appendix E to Part 57--DoD Inter-Component Coordinating Council (ICC)

on Early Intervention

A. Council Membership

The USD(P&R) shall appoint members to the ICC. The Council shall

meet at least yearly in publicly announced, open meetings that are

accessible to the general public and shall comply with DoD Directive

5105.4.\1\ The Council shall be comprised of the following:

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

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

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1. Parents. At least 20 percent of the members shall be parents

with infants or toddlers with disabilities or children ages 12 or

younger with disabilities, with knowledge of, or experience with,

programs for infants and toddlers with disabilities. At least one

such member shall be a parent of an infant or toddler or a child age

6 or younger.

2. Representatives of the Surgeons General of the Military

Departments.

3. Representatives of the family support programs of the

Military Departments.

4. Representatives from the ASD(HA).

5. Representative(s) from the DoDDS.

6. A representative from the GC, DoD.

B. Responsibilities

1. Advise and assist the Military medical Departments in the

performance of their responsibilities, particularly the

identification of appropriate resources and Agencies for providing

early intervention services and the promoting of inter-Component

agreements.

2. Advise and assist the DoDDS on the transition of toddlers

with disabilities to preschool services.

3. Identify strategies to address areas of conflict, overlap,

duplication, or omission of early intervention services.

4. Review policy memoranda on effective inter-Department and

inter-Component collaboration.

5. Review reports of technical assistance and monitoring

activities and make recommendations to improve the policies,

procedures, programs, and delivery of early intervention services.

6. Make recommendations based on program and operational

information for changes in the policy, procedures, budget,

organization, and general management of the EIPs.

7. Provide advice and technical assistance in the establishment,

membership, and operation of installation or command level ICCs.

8. When necessary, establish committees for short-term purposes

comprised of parents of children with disabilities, service

providers, and representatives of professional groups.

9. Submit an annual report of its activities and suggestions to

the USD(P&R) by July 31 of each year. That report is exempt from

formal review and licensing under section E. of DoD Instruction

7750.7.\2\

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\2\ See footnote 1 to section A. of this appendix.

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C. Procedures

1. The USD(P&R) shall nominate and select all members to the ICC

to include those listed in section A.1. of this appendix.

2. Appointments shall be for a term not to exceed 3 years except

for DoD personnel who are not representing the parent category of

membership.

3. The USD(P&R), or designee, shall call and conduct the meeting

of the Council.

Appendix F to Part 57--Mediation and Hearing Procedures

A. Purpose

This appendix establishes requirements for the resolution of

conflicts through mediation and impartial due process hearings.

Parents of infants, toddlers, and children who are covered by this

Instruction and, as the case may be, the cognizant Military

Department or the DoDDS are afforded impartial mediation and/or

impartial due process hearings and administrative appeals about the

provision of early intervention services, or the identification,

evaluation, educational placement of, and the FAPE provided to, such

children by the Department of Defense, in accordance with 20 U.S.C.

921 et seq. and 1400 et seq.

B. Mediation

1. Mediation may be initiated by either a parent or the Military

Department concerned, or the DoDDS to resolve informally a

disagreement on the early intervention services for an infant or

toddler or the identification, evaluation, educational placement of,

or the FAPE provided to, a child age 3 to 21, inclusive. The

cognizant Military Department, rather than the DoDDS, 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 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, or child whose early

intervention or special education services (including related

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

formal due process hearing authorized by this appendix. Any request

by the DoDDS or the Military Department for a hearing under this

appendix shall state how that requirement has been satisfied. No

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

an unsuccessful attempt to mediate.

C. Hearing Administration

1. The Defense Office of Hearings and Appeals (DOHA) shall have

administrative responsibility for the proceedings authorized by

sections D. through G. of 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 in good standing of the bar of any State, the District of

Columbia, or a territory or possession of the United States who are

independent of the DoDDS 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. The DOHA Department counsel normally shall appear and

represent the DoDDS in proceedings conducted under this appendix,

when such proceedings involve a child age 3 to 21, inclusive. When

an infant or toddler is involved, the Military Department

responsible under this Instruction for delivering early intervention

services shall either provide its own counsel or request counsel

from DOHA.

D. Hearing Practice and Procedure

1. Hearing

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

issues on the provision of early intervention services to an infant

or toddler or the identification or evaluation of such an

individual, the parent may request and shall receive a hearing

before a hearing officer to resolve the matter. The parents of an

infant or toddler and the Military Department concerned shall be the

only parties to a hearing conducted under this appendix.

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

issues on the provision of a FAPE to a child with a disability, age

3 to 21, inclusive, or the identification, evaluation, or

educational placement of such an individual, the parent or the

school principal, for the DoDDS, may

[[Page 2578]]

request and shall receive a hearing before a hearing officer to

resolve the matter. The parents of a child age 3 to 21, inclusive,

and the DoDDS shall be the only parties to a hearing conducted under

this appendix.

c. 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 (i.e., the parent or

the school principal, for the DoDDS, or the military MTF commander,

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

mail, postage prepaid. Delivery is complete on mailing. When the

DoDDS or the 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.

d. 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 on

mailing.

e. In 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.

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

and the answer, if 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.

g. 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.

h. 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'' (Rules 1-

1102) of 28 U.S.C., serving as a guide.

i. 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 DoDDS or the Military

Department concerned and to call and question witnesses.

j. 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 DoDDS or the 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, if the parents have the right

to an open hearing on waiving in writing their privacy rights and

those of the individual with disabilities.

k. 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 on request and without

cost. The hearing officer may allow corrections to the written

transcript or electronic recording for conforming it to actual

testimony after adequate notice of such changes is given to all

parties.

l. 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, if such matter is

made available to all parties before the record is closed under

paragraph D.1.m. of this appendix.

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

a case presented for adjudication.

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

closed.

o. 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,'' Rules

26-37, codified at 28 U.S.C. serving as a guide.

b. If voluntary discovery cannot be accomplished, a party

seeking discovery may file a motion with the hearing officer 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 DoDDS or the 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 U.S.

Government as to any matter in the jurisdiction of that 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

DoDDS or the 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 on the hearing

officer's own motion or, if good cause be shown, on 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, on the certification provided for

in paragraph D.3.d. of this appendix, 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, DoDDS, or

to the Military Department concerned, and to the NAP or the ICC, as

appropriate, 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. The DoDDS or the 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 an infant, toddler, or child

age 3 to 21, inclusive, 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 in the period fixed by paragraph D.1.o. of this appendix.

2. The DoDDS or the Military Department concerned may oppose a

request to waive that hearing. In that event, the hearing officer

shall rule on that request.

3. Documents submitted to the hearing officer in a case

determined without a hearing shall comply with paragraph D.1.h. 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 on mailing.

[[Page 2579]]

2. Within 10 calendar days of 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 on 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 reasonably 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 20

U.S.C. 921 et seq. and 1400 et seq., 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 Instruction 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 DoD Directive

5400.11\1\.

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

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

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Dated: January 9, 1997.

L.M. Bynum,

Alternate OSD Federal Register Liaison Officer, Department of Defense.

[FR Doc. 97-888 Filed 1-16-97; 8:45 am]

BILLING CODE 5000-04-M