# Assistance to States for the Education of Children With Disabilities and the Early Intervention Program for Infants and Toddlers With Disabilities

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URL: https://www.frixlaw.com/law-library/documents/fr%3A99-5754

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** March 12, 1999
- **Citation:** 64 FR 12406

## Text

SUMMARY: The Secretary issues final regulations for the Assistance to
States for Education of Children with Disabilities program under Part B
of the Individuals with Disabilities Education Act (IDEA; Part B) and
the Early Intervention Program for Infants and Toddlers with
Disabilities under Part C of the Act (Part C). These regulations are
needed to implement changes made to Part B by the IDEA Amendments of
1997; make other changes to the part B regulations based on relevant,
longstanding policy guidance; and revise the requirements on State
complaint procedures under both the Part B and Part C programs.

DATES: These regulations take effect on May 11, 1999. However,
compliance with these regulations will not be required until the date
the State receives FY 1999 funding (expected to be available for
obligation to States on July 1, 1999) under the program or October 1,
1999, whichever is earlier. Affected parties do not have to comply with
the information collection requirements contained in the regulations
listed under the Paperwork Reduction Act of 1995 section of this
preamble until the Department publishes in the Federal Register the
control number assigned by the Office of Management and Budget (OMB) to
these information collection requirements. Publication of the control
numbers notifies the public that OMB has approved these information
collection requirements under the Paperwork Reduction Act of 1995.

FOR FURTHER INFORMATION CONTACT: Thomas Irvin or JoLeta Reynolds (202)
205-5507. Individuals who use a telecommunications device for the deaf
(TDD) may call (202) 205-5465.
Individuals with disabilities may obtain this document in an
alternate format (e.g., Braille, large print, audiotape, or computer
diskette) on request to Katie Mincey, Director of the Alternate Formats
Center. Telephone: (202) 205-8113.

SUPPLEMENTARY INFORMATION: On October 22, 1997, the Secretary published
a notice of proposed rulemaking (NPRM) in the Federal Register (62 FR
55026) to amend the regulations governing the Assistance to States for
Education of Children with Disabilities program (part 300), the
Preschool Grants for Children with Disabilities program (part 301), and
the Early Intervention Program for Infants and Toddlers with
Disabilities (part 303). A key purpose of the NPRM was to implement
changes made by the IDEA Amendments of 1997 (Pub. L. 105-17).
Since that time, the Department has published final regulations for
both the Preschool Grants program (63 FR 29928, June 1, 1998) and the
Early Intervention program for Infants and Toddlers with Disabilities
(63 FR 18297, April 14, 1998), to incorporate the requirements added to
those programs by Pub. L. 105-17. On April 14, 1998, a document was
published in the Federal Register inviting comment on whether the
regulations for the Early Intervention program for Infants and Toddlers
with Disabilities should be further amended (63 FR 18297). (A
subsequent document reopening the comment period was published on
August 14, 1998 (63 FR 43866)).
The final regulations in this publication are needed to conform the
existing regulations under Part B of the Act to the new statutory
requirements added by Pub. L. 105-17, including (1) amending
requirements under prior law related to areas such as State and local
eligibility, evaluation, and individualized education programs (IEPs),
and (2) incorporating new requirements in the Act (e.g., those relating
to discipline, performance goals and indicators, participation of
children with disabilities in State and district-wide assessments,
procedural safeguards notice, and mediation).
The regulations have also been amended to incorporate relevant
longstanding interpretations of the Act that have been addressed in
nonregulatory guidance in the past and are needed to ensure a more
meaningful implementation of the Act and its regulations for children
with disabilities, parents, and public agencies. These interpretations
are based on the statutory provisions of the IDEA that were in effect
prior to the IDEA Amendments of 1997 and that were not changed by those
Amendments. Examples of provisions of the regulations that incorporate
prior Department interpretations of the statute include:
Section 300.7(c)(9)--recognizing that some children with attention
deficit disorder (ADD) may be identified under the category of other
health impairment;
Section 300.19--recognizing that foster parents may, under certain
circumstances and if permitted under State law, qualify as a ``parent';
Section 300.121(c)--recognizing that if a child's third birthday is
in the summer, the child's IEP team determines the date when services
begin under the child's IEP or IFSP. (The team must develop the IEP or
IFSP by the child's third birthday.);
Section 300.122(a)(3)--recognizing that graduation with a regular
high school diploma ends the child's eligibility under Part B;
Section 300.309--recognizing that extended school year services
must be provided if necessary for the provision of a free appropriate
public education to the child; and
Section 300.519--identifying what constitutes a change of placement
for disciplinary purposes under these regulations.
In addition, changes have been made to the requirements on State
complaint procedures in the regulations for Part B (Secs. 300.660-
300.662), and conforming changes have been made in the Part C
regulations (Secs. 303.510-303.512).

Analysis of Comments and Changes

In response to the Secretary's invitation to comment on the NPRM
published in the Federal Register on October 22, 1997 (62 FR 55026),
about 6,000 individuals, public agencies, and organizations submitted
written or oral comments. An analysis of the public comments received,
including a description of the changes made in the proposed regulations
since publication of the NPRM, is published as Attachment 1 to these
final regulations. The perspectives of individuals and groups of
parents, teachers, related service providers, State and local
officials, individuals with disabilities and members of Congress were
very important in helping to identify where changes were necessary in
the proposed regulations, and in formulating many of those changes. The
detailed, thoughtful comments of so many individuals and organizations
clearly demonstrated a high level of commitment to making sure that the
IDEA and its regulations make a real difference in the day-to-day
education of our children. In light of the comments received, a number
of significant changes are reflected in these final regulations.

Effective Date of These Regulations

These regulations take effect on May 11, 1999. As these regulations
were not in effect at the time Federal fiscal year

[[Page 12407]]

(FY) 1998 funds (funds for use during school year 1998-99) became
available for obligation to States, compliance with the requirements of
these regulations, that are not statutory requirements or provisions of
pre-existing regulations, will not be mandatory for this grant year.
When either the FY 1998 funds that are unobligated by States and school
districts become carryover funds (October 1, 1999) or, if earlier, the
State receives FY 1999 funding (expected to be available for obligation
to States July 1, 1999) compliance with these final regulations is
required. This will enable all parties to become familiar with the new
regulations without requiring changes that could interrupt school or
program operations in the middle of a grant year. However, States and
school districts may adopt and use these regulations when they are
effective, and are encouraged, to the greatest extent possible, to
start to implement them as soon as possible during this school year. In
any case, the statutory requirements of the Individuals with
Disabilities Education Act Amendments of 1997 (IDEA Amendments of 1997)
are in effect and must be complied with throughout the 1998-99 school
year. In addition, States and school districts must comply with all
requirements of the Part 300 regulations that were in effect at the
beginning of this school year unless inconsistent with the IDEA
Amendments of 1997 or these final regulations. Applications for grants
for FY 1999 funds must be consistent with the requirements of these
final regulations.
Most of the provisions of the IDEA Amendments of 1997 relating to
Parts B and C of the Act have been in effect since enactment, June 4,
1997, with a few provisions, such as the new Part B provisions
concerning individualized education programs and the comprehensive
system of personnel development, taking effect on July 1, 1998.
Therefore, States and school districts already are familiar with the
statutory provisions of the IDEA Amendments of 1997 to which they must
comply.

Major Changes in the Regulations

The following is a summary of the major substantive changes from
the NPRM in these final regulations:

1. General Changes

All notes in the NPRM related to the sections or subparts
covered in these final regulations have been removed. The substance of
any note that should be required for proper implementation of the Act
has been added to the text of these final regulations. Information in
notes considered to be directly relevant to the ``Notice of
Interpretation'' on IEP requirements has been added to the text of that
notice in Appendix A to these final regulations. The substance of any
note considered to provide clarifying information or useful guidance
has been incorporated into the discussion of the applicable comments in
the ``Analysis of Comments and Changes'' (see Attachment 1 to these
final regulations). All other notes have been deleted.
Appendix C in the NPRM (``Notice of Interpretation on
IEPs) has been redesignated as ``Appendix A'' in these final
regulations; and a new Appendix B--Index to IDEA Part B Regulations has
been added.
Three attachments have also been added: Attachment 1--
Analysis of Comments and Changes; Attachment 2--Final Regulatory
Flexibility Analysis; and Attachment 3--Table showing ``Disposition of
NPRM Notes in Final Part 300 and 303 Regulations.'' However, these
attachments will not be codified in the Code of Federal Regulations.

2. Changes in Subpart A--General

Proposed Sec. 300.2 (Applicability of this part to State,
local, and private agencies) has been revised to include ``public
charter schools that are not otherwise included as local educational
agencies (LEAs) or educational service agencies (ESAs) and are not a
school of an LEA or ESA'' and to specify that the rules of Part 300
apply to all public agencies in the State providing special education
and related services.
Consistent with the general decision to not use notes in
these final regulations, proposed Note 1 immediately preceding
Sec. 300.4 in the NPRM, (which included a list of terms defined in
specific subparts and sections of the regulations) has been deleted and
the terms included as part of an index to these regulations (see
Appendix B).
The proposed definition of ``child with a disability''
(Sec. 300.7(a)) has been revised to clarify that if a child with a
disability needs only a related service and not special education, the
child is not eligible under this part; but if the related service is
considered to be special education under State standards, the child
would be eligible.
The proposed definition of ``other health impairment''
(``OHI''), at Sec. 300.7(c)(9), has been amended to (1) add ``attention
deficit disorder'' (ADD) and ``attention deficit hyperactivity
disorder'' (ADHD) to the list of conditions that could render a child
eligible under OHI, and (2) clarify that, with respect to children with
ADD/ADHD, the phrase ``limited strength, vitality, or alertness''
includes ``a child's heightened alertness to environmental stimuli that
results in limited alertness with respect to the educational
environment.''
The proposed definition of ``Day'' (Sec. 300.9) has been
retitled ``Day; business day; school day,'' and definitions of
``business day'' and ``school day'' have been added.
The proposed definition of ``educational service agency''
(Sec. 300.10) has been revised to clarify that the term ``[i]ncludes
entities that meet the definition of ``intermediate educational unit''
in section 602(23) of IDEA as in effect prior to June 4, 1997.''
The proposed definition of ``general curriculum'' in
Sec. 300.12 of the NPRM and the explanatory note following that section
have been deleted. The term is explained where it is used in
Sec. 300.347 and in Appendix A regarding IEP requirements.
The proposed definition of ``local educational agency''
(Sec. 300.18) has been amended to clarify, consistent with new
statutory language concerning public charter schools, that the term
includes public charter schools that are established as an LEA under
State law.
The proposed definition of ``native language''
(Sec. 300.19) has been amended to specify that (1) in all direct
contact with a child (including evaluation of the child), the native
language is the language normally used by the child in the home or
learning environment, and (2) for an individual with deafness or
blindness, or with no written language, the mode of communication is
that normally used by the individual (such as sign language, braille,
or oral communication).
The proposed definition of ``parent'' has been amended to
(1) add language clarifying that the term means a natural or adoptive
parent of a child and a person acting in the place of a parent (such as
a grandparent or stepparent with whom the child lives, or a person who
is legally responsible for the child's welfare), and (2) permit States
in certain circumstances to use foster parents as parents under the Act
unless prohibited by State law.
The proposed definition of ``public agency'' (Sec. 300.22)
has been amended to add to the list of examples of a public agency
``public charter schools that are not otherwise included as LEAs or
ESAs and are not a school of an LEA or ESA'', consistent with new
statutory language concerning public charter schools.
The proposed definition of ``parent counseling and
training,'' under the definition of ``related services,''
(Sec. 300.24(b)(7)) has been amended to

[[Page 12408]]

add that the term also means ``helping parents to acquire the necessary
skills that will allow them to support the implementation of their
child's IEP or IFSP.''
The proposed definition of ``special education''
(Sec. 300.26) has been amended to add ``travel training'' as a special
education service and to include a definition of the term.

3. Changes in Subpart B--State and Local Eligibility

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

[[Page 12409]]

Proposed Sec. 300.148 (Public participation) has been
amended to clarify that a State will be considered to be in compliance
with this section if the State has subjected the policy or procedure to
a public participation process that is required by the State for other
purposes and is comparable to and consistent with the requirements of
Secs. 300.280-300.284.
Proposed Sec. 300.154 (Maintenance of State financial
support) has been amended to clarify that maintenance of State
financial support can be demonstrated on either a total or per-capita
basis.

LEA Eligibility--Specific Conditions

Proposed Sec. 300.231 (Maintenance of effort) has been
amended to set out the standard for meeting the maintenance of effort
requirement.
Proposed Sec. 300.232 (Exception to maintenance of effort)
has been amended to specify that the exception related to voluntary
retirement or resignation of personnel must be in full conformity with
existing school board policies, any applicable collective bargaining
agreement, and applicable State statutes.
Proposed Sec. 300.234 (Schoolwide programs under title I
of the ESEA) has been amended to make clear that an LEA that uses Part
B funds in schoolwide program schools must ensure that children with
disabilities in those schools receive services in accordance with a
properly developed IEP and are afforded all applicable rights and
services guaranteed under the IDEA.

4. Changes in Subpart C--Services

Free Appropriate Public Education
Proposed Sec. 300.300 (Provision of FAPE) has been amended
to specify that the State must ensure that the child find requirements
of Sec. 300.125 are implemented by public agencies throughout the
State. Proposed Sec. 300.300 also has been amended to specify that (1)
the services provided to the child under this part address all of the
child's identified special education and related services needs, and
(2) are based on the child's identified needs and not the child's
disability category.
Proposed Sec. 300.301 (FAPE--methods and payments) has
been amended to add a provision requiring that the State must ensure
that there is no delay in implementing a child's IEP, including any
case in which the payment source for providing or paying for the
special education and related services to the child is being
determined.
Proposed Sec. 300.308 (Assistive technology) has been
amended to clarify that, on a case-by-case basis, the use of school-
purchased assistive technology devices in a child's home or in other
settings is required if the child's IEP team determines that the child
needs access to those devices in order to receive FAPE.
Proposed Sec. 300.309 (Extended school year (ESY)
services) has been amended to specify that (1) ESY services must be
provided only if a child's IEP team determines, on an individual basis,
that the services are necessary for the provision of FAPE to the child,
and (2) an LEA may not limit ESY services to particular categories of
disability, or unilaterally limit the type, amount, or duration of
those services.
A new Sec. 300.312 (Children with disabilities in public
charter schools) has been added to (1) specify that these children and
their parents retain all rights under these regulations, and that
compliance with part B is required regardless of whether a public
charter school receives Part B funds; and (2) address the
responsibilities of the following: public charter schools that are
LEAs; LEAs if the charter school is a school in the LEA; and the SEA if
the charter school is not an LEA or a school of an LEA.
A new Sec. 300.313 (Children experiencing developmental
delays) has been added to (1) clarify the circumstances under which the
designation ``developmental delay'' may be used by a State or an LEA in
the State; (2) permit a State or LEA that elects to use that term to
also use one or more of the disability categories described in
Sec. 300.7 for any child aged 3 through 9 who has been determined to
have a disability and who, by reason thereof, needs special education;
and (3) permit a State to adopt a common definition of developmental
delay under Parts B and C of the Act.

Individualized Education Programs (IEPs)

Proposed Sec. 300.341 (retitled ``Responsibility of SEA
and other public agencies for IEPs) has been revised to (1) consistent
with provisions regarding parentally-placed children with disabilities
in religious or other private schools (see changes to Subpart D), and
(2) to clarify that the section also applies to the SEA if it provides
direct services to children with disabilities as well as other public
agencies that provide special education either directly, by contract,
or through other means.
Proposed Sec. 300.342(b) has been revised to provide that
the child's IEP must be accessible to each of the child's teachers and
service providers and that teacher and service provider with
responsibility for its implementation be informed of his or her
specific responsibilities under the IEP and of the specific
accommodations, modifications, and supports that must be provided for
the child under that IEP.
Proposed Sec. 300.342(d) has been revised to state that
all IEPs developed, reviewed, or revised on or after July 1, 1998 must
meet the requirements of Secs. 300.340-300.350.
Proposed Sec. 300.343 (IEP meetings) has been revised to
clarify that special education and related services must be available
to the child within a reasonable period of time following receipt of
parent consent to an initial evaluation.
Proposed Sec. 300.344 (IEP Team) has been amended to (1)
clarify that the determination of knowledge or special expertise of
``other individuals'' under Sec. 300.344(a)(6) is made by the party who
has invited the individual to be a member of the IEP team; and (2)
permit a public agency to designate another public agency member of the
IEP team to also serve as the agency representative, if the criteria in
Sec. 300.344(a)(4) are satisfied.
Proposed Sec. 300.345 (Parent participation) has been
revised to clarify that (1) the public agency's notice to parents about
the IEP meeting must inform them about the ability of either party to
invite individuals with knowledge or special expertise to the meeting,
consistent with Sec. 300.344(a)(6) and (c); and (2) the agency must
give the parents a copy of their child's IEP.
Proposed Sec. 300.346 (Development, review, and revision
of IEP) has been revised to clarify that, in developing each child's
IEP, the IEP team also must consider ``as appropriate, the results of
the child's performance on any general State or district-wide
assessment programs.
Proposed Sec. 300.347 (Content of IEP) has been amended to
(1) clarify that ``general curriculum'' is the same curriculum as for
nondisabled children, and (2) delete the requirement that, if the IEP
team determines that services are not needed in one or more of the
areas specified in the definition of transition services (Sec. 300.29),
the IEP must include a statement to that effect and the basis upon
which the determination was made.
Proposed Sec. 300.350 (Children with disabilities in
religiously-affiliated or other private schools) has been deleted. A
new Sec. 300.455(c) has been added to specify LEA responsibilities
regarding the development of ``services plans'' for private school
children.

[[Page 12410]]

Proposed Sec. 300.351 (IEP--accountability) has been
redesignated as Sec. 300.350, and revised to provide that (1) each
public agency must make a good faith effort to assist the child to
achieve the goals and objectives or benchmarks listed in the IEP; (2) a
State or public agency is not prohibited from establishing its own
accountability systems regarding teacher, school, or agency
performance; and (3) ``[n]othing in this section limits a parent's
right to ask for revisions of the child's IEP or to invoke due process
procedures if the parent feels that efforts required in paragraph (a)
of this section are not being met.''

Direct Services by SEA

Proposed Sec. 300.360 (Use of LEA allocation for direct
services) has been amended to clarify that (1) if an LEA does not elect
to apply for its Part B funds, the SEA must use those funds to ensure
that FAPE is available to all eligible children residing in the
jurisdiction of the LEA; (2) if the local allotment is not sufficient
to ensure FAPE to all eligible children within the LEA, the SEA must
ensure that FAPE is available to those children; and (3) the SEA may
use whatever funding sources are available in the State to ensure that
all eligible children within each LEA receive FAPE (see Sec. 300.301).
Proposed Sec. 300.370 (Use of SEA allocations) has been
amended to clarify that, of the Part B funds it retains for other than
administration, the SEA may use the funds either directly, or
distribute them to LEAs on a competitive, targeted, or formula basis.

5. Changes in Subpart D--Children in Private Schools

Children With Disabilities in Private Schools Placed or Referred by
Public Agencies
Proposed Sec. 300.401 (``Responsibility of SEA'') has been
revised to provide that a child with a disability placed by a public
agency as the means of providing FAPE to the child must receive an
education that meets the standards that apply to the SEA and LEA.
Children With Disabilities Enrolled by Their Parents in Private Schools
When FAPE Is at Issue
Proposed Sec. 300.403 (``Placement of children by parent
if FAPE is at issue'') has been revised to clarify that (1) the
provisions of Secs. 300.450-300.462 apply to children with disabilities
placed voluntarily in private schools, even though the public agency
made FAPE available to those children; (2) private school placement by
the parents must be appropriate (as determined by a court or hearing
officer) in order to be eligible for reimbursement, (3) a parental
placement does not need to meet State standards that apply to education
provided by the SEA and LEAs in order to be appropriate; and (4) the
reimbursement provisions of Sec. 300.403 also apply if parents of a
child with a disability who previously received special education and
related services under the authority of a public agency enroll the
child in a private preschool program.
Children With Disabilities Enrolled by Their Parents in Private Schools
Proposed Sec. 300.451 (``Child find for private school
children with disabilities'') has been revised to specify that (1)
child find activities for those children must be comparable to child
find activities for children with disabilities in public schools, and
(2) LEAs must consult with representatives of parentally-placed private
school students with disabilities on how to conduct child find
activities for that population in a manner that is comparable to those
activities for public school children.
Proposed Sec. 300.452 (retitled ``Provision of services--
basic requirement'') has been amended to add a new provision related to
the SEA's responsibility for ensuring that a services plan is developed
for each private school child with a disability who has been designated
to receive services under these regulations.
Proposed Sec. 300.453 (``Expenditures'') has been revised
to specify that (1) each LEA must consult with representatives of
private school children with disabilities to decide how to conduct the
annual count of the number of those children; (2) the LEA must ensure
that the count is conducted by specified dates, and that the data are
used to determine the amount of Part B funds to be earmarked for
private school children in the next fiscal year; (3) the costs of child
find activities for private school children with disabilities may not
be considered in determining whether the LEA met the expenditures
requirement of this section; and (4) SEAs and LEAs are not prohibited
from providing services to private school children with disabilities
beyond those required by this part, consistent with State law or local
policy.
Proposed Sec. 300.454 (Services determined) has been
revised to specify that each LEA must (1) consult with private school
representatives on where services will be provided; (2) conduct
meetings to develop, review, and revise a ``services plan,'' in
accordance with Sec. 300.455, for each private school child with a
disability who has been designated to receive services under this part;
and (3) ensure that a representative of the private school participates
in the meetings.
Proposed Sec. 300.455 (Services provided) has been revised
to specify that (1) each private school child with a disability who has
been designated to receive Part B services must have a services plan,
and (2) the plan must, to the extent appropriate, meet the requirements
of Sec. 300.347 with respect to the services provided, and be
developed, reviewed and revised consistent with Secs. 300.342-300.346.
Proposed Sec. 300.456 (Location of services) has been
revised to make clear that, while transportation might be provided
between a child's home or private school and a service site if
necessary for the child to benefit from or participate in the services
offered, LEAs are not required to provide transportation between the
child's home and private school.
Proposed Sec. 300.457 (Complaints) has been revised to
specify that the due process procedures under this part apply to child
find activities for private school children with disabilities,
including evaluations.

6. Changes in Subpart E--Procedural Safeguards

Due Process Procedures for Parents and Children
Proposed Sec. 300.500 (General responsibility of public
agencies; definitions) has been amended as follows:
(1) The proposed definition of ``consent'' (300.500(b)(1)) has been
revised to clarify that a revocation of consent does not have a
retroactive effect if the action consented to has already occurred.
(2) The proposed definition of ``evaluation'' (Sec. 300.500(b)(2))
has been revised by deleting the last sentence of the definition, to
ensure that evaluations may include a review of a child's performance
on a test or procedures used for all children in a school, grade, or
class.
Proposed Sec. 300.501 (Opportunity to examine records;
parent participation in meetings) has been amended to (1) delete the
word ``all'' from Sec. 300.501(a)(2); (2) delete the definition of
``meetings'' but provide that the term does not include certain
conversations or preparation for a meeting and (3) clarify that each
public agency must ``make reasonable efforts'' related to parental
participation in group

[[Page 12411]]

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

[[Page 12412]]

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

[[Page 12413]]

and not supplanting with Part B funds) has been revised to conform to
the statutory provision that the Secretary provides a waiver ``in whole
or in part.''

7. Changes in Subpart F--State Administration

Proposed Sec. 300.652 (Advisory panel functions) has been
revised to clarify that one of the duties of the advisory panel is
advising the State agency that has general responsibility for students
who have been convicted as adults and incarcerated in adult prisons.
Proposed Sec. 300.653 (Advisory panel procedures) has been
amended to specify that all advisory panel meetings and agenda items
must be ``announced enough in advance of the meeting to afford
interested parties a reasonable opportunity to attend.''
Proposed Sec. 300.660 (Adoption of State complaint
procedures) has been revised to clarify that if an SEA, in resolving a
complaint, finds a failure to provide appropriate services to a child
with a disability, the SEA must address (1) how to remediate the denial
of those services, including, as appropriate, the awarding of monetary
reimbursement or other corrective action appropriate to the needs of
the child; and (2) appropriate future provision of services for all
children with disabilities.
Proposed Sec. 300.661 (Minimum State complaint procedures)
has been revised to clarify that (1) if an issue in a complaint is the
subject of a due process hearing, that issue (but not any issue outside
of the hearing) would be set aside until the conclusion of the hearing,
(2) the decision on an issue in a due process hearing would be binding
in a State complaint resolution, and (3) a public agency's failure to
implement a due process decision would have to be resolved by the SEA.

8. Changes in Subpart G--Allocation of Funds; Reports

Proposed Sec. 300.712 (Allocations to LEAs) has been
revised to clarify that, if LEAs are created, combined, or otherwise
reconfigured subsequent to the base year (i.e. the year prior to the
year in which the appropriation under section 611(j) of the Act exceeds
$4,924,672,200), the State is required to provide the LEAs involved
with revised base allocations calculated on the basis of the relative
numbers of children with disabilities aged 3 through 21, or 6 through
21, depending on whether the State serves all children with
disabilities aged 3 through 5 currently provided special education by
each of the affected LEAs. The section also has been expanded to state
that, for the purpose of making grants under this section, States must
apply, on a uniform basis across all LEAs, the best data that are
available to them on the numbers of children enrolled in public and
private elementary and secondary schools and the numbers of children
living in poverty.
Proposed Sec. 300.713 (Former Chapter 1 State agencies)
has been revised to clarify that the amount each former Chapter 1 State
agency must receive is the minimum amount.
Proposed Sec. 300.751 (Annual report of children served)
has been revised to clarify that the Secretary may permit States to
collect certain data through sampling.

9. Changes to Part 303

Proposed Sec. 303.510 (Adopting State complaint
procedures) has been revised to clarify that if a lead agency, in
resolving a complaint, finds a failure to provide appropriate services,
it must address (1) how to remediate the denial of those services,
including, as appropriate, the awarding of monetary reimbursement or
other corrective action appropriate to the needs of the child and the
child's family, as well as (2) appropriate future provision of services
for all infants and toddlers with disabilities and their families.
Proposed Sec. 303.512 (Minimum State complaint procedures)
has been revised to clarify that (1) if an issue in a complaint is the
subject of a due process hearing, that issue (but not any issue outside
of the hearing) would be set aside until the conclusion of the hearing,
(2) the decision on an issue in a due process hearing would be binding
in a State complaint resolution, and (3) a public agency's or private
service provider's failure to implement a due process decision must be
resolved by the lead agency.
Role of the Regular Education Teacher on the IEP Team
The regulations at Secs. 300.344(a)(2) and 300.346(d) repeat the
statutory provisions regarding the role of the regular education
teacher in developing, reviewing, and revising IEPs. The extent of the
regular education teacher's involvement in the IEP process would be
determined on a case by case basis and is addressed in question 24 in
Appendix A.

Discipline for Children With Disabilities

Some Key Changes in the Regulations Regarding Discipline for Children
With Disabilities

One of the major areas of concern in public comment on the NPRM was
the issue of discipline for children with disabilities under the Act.
The previous list of major changes briefly describes the major changes
from the NPRM that are reflected in these final regulations regarding
discipline under Secs. 300.121(d), and 300.519-529. These changes
reflect very serious consideration of the concerns of school
administrators and teachers regarding preserving school safety and
order without unduly burdensome requirements, while helping schools
respond appropriately to a child's behavior, promoting the use of
appropriate behavioral interventions, and increasing the likelihood of
success in school and school completion for some of our most at-risk
students.
The comments also revealed some confusion about several of the
provisions of the Act and the NPRM regarding discipline. Limitations in
the statute and regulations about the amount of time that a child can
be removed from his or her current placement only come into play when
schools are not able to work out an appropriate placement with the
parents of a child who has violated a school code of conduct. In many,
many cases involving discipline for children with disabilities, schools
and parents are able to reach an agreement about how to respond to the
child's behavior. In addition, neither the statute or the proposed or
final regulations impose absolute limits on the number of days that a
child can be removed from his or her current placement in a school
year. As was the case in the past, school personnel have the ability to
remove a child for short periods of time as long as the removal does
not constitute a change of placement. To help make this point, the
regulations include a new provision (Sec. 300.519) that reflects the
Department's longstanding definition of what constitutes a ``change of
placement'' in the disciplinary context. In this regulation, a
disciplinary ``change of placement'' occurs when a child is removed for
more than 10 consecutive school days or when the child is subjected to
a series of removals that constitute a pattern because they cumulate to
more than 10 school days in a school year, and because of factors such
as the length of the removal, the total amount of time the child is
removed, and the proximity of the removals to one another.
(Sec. 300.519). Changes also have been made to Sec. 300.520(a)(1) to
make clear that multiple short-term removals (i.e., 10 consecutive days
or less) for separate incidents of misconduct are permitted, to the
extent removals would be applied

[[Page 12414]]

to children without disabilities as long as those removals do not
constitute a change of placement, as defined in Sec. 300.519.
Instead of requiring that services begin on the eleventh day in a
school year that a child is removed from his or her current educational
placement, as was proposed in the NPRM, the regulations take a more
flexible approach. If the removal is pursuant to school personnel's
authority to remove for not more than 10 consecutive days
(Sec. 300.520(a)(1)) or for behavior that is not a manifestation of the
child's disability, consistent with Sec. 300.524 services must be
provided to the extent necessary to enable the child to continue to
appropriately progress in the general curriculum and appropriately
advance toward the goals in his or her IEP. (Sec. 300.121(d)).
If the removal is by school personnel under their authority to
remove for not more than 10 school days at a time (Sec. 300.520(a)(1)),
school personnel, in consultation with the child's special education
teacher, make the determination regarding the extent to which services
are necessary to meet this standard. (Sec. 300.121(d)(3)(i)). On the
other hand, if the removal constitutes a change in placement, the
child's IEP team must be involved. If the removal is pursuant to the
authority to discipline a child with a disability to the same extent as
a nondisabled child for behavior that has been determined to not be a
manifestation of the child's disability (Sec. 300.524), the child's IEP
team makes the determination regarding the extent to which services are
necessary to meet this standard. (Sec. 300.121(d)(3)(ii)). If the child
is being placed in an interim alternative educational setting for up to
45 days because of certain weapon or drug offenses (Sec. 300.520(a)(2))
or because a hearing officer has determined that there is a substantial
likelihood of injury to the child or others if the child remains in his
or her current placement (Sec. 300.521), the services to be provided to
the child are determined based on Sec. 300.522. In these cases, the
interim alternative educational setting must be selected so as to
enable the child to continue to progress in the general curriculum,
although in another setting, and to continue to receive those services
and modifications, including those described in the child's current
IEP, that will enable the child to meet the goals set out in that IEP
and include services and modifications to address the behavior.
(Secs. 300.121(d)(2)(ii) and 300.522).
Under these regulations, IEP team meetings regarding functional
behavioral assessments and behavioral intervention plans will only be
required within 10 business days of (1) when the child is first removed
for more than 10 school days in a school year, and (2) whenever the
child is subjected to a disciplinary change of placement.
(Sec. 300.520(b)(1)). In other subsequent removals in a school year of
a child who already has a functional behavioral assessment and
behavioral intervention plan, the IEP team members can review the
behavioral intervention plan and its implementation in light of the
child's behavior, without a meeting, and only meet if one or more of
the team members believe that the plan or its implementation need
modification. (Sec. 300.520(c)).
These final regulations also provide that manifestation
determinations, and the IEP team meetings to make these determinations,
are only required when a child is subjected to a disciplinary change of
placement. (Sec. 300.523(a)). These changes should eliminate the need
for unnecessary, repetitive IEP team meetings. The discussion of
comments regarding the disciplinary sections of the regulations in
Attachment 1 provides a fuller explanation of the regulatory provisions
regarding discipline.

Answers to Some Commonly Asked Questions About Discipline Under IDEA

Prior to the amendments to the Education of the Handicapped Act
(EHA) in 1975, (the EHA is today known as IDEA), the special
educational needs of children with disabilities were not being met.
More than half of the children with disabilities in the United States
did not receive appropriate educational services, and a million
children with disabilities were excluded entirely from the public
school system. All too often, school officials used disciplinary
measures to exclude children with disabilities from education simply
because they were different or more difficult to educate than
nondisabled children.
It is against that backdrop that Pub. L. 94-142 was developed, with
one of its primary goals being the elimination of any exclusion of
children with disabilities from education. In the IDEA reauthorization
of 1997, Congress recognized that in certain instances school districts
needed increased flexibility to deal with safety issues while
maintaining needed due process protections in the IDEA. The following
questions and answers address: (1) the proactive requirements of the
IDEA designed to ensure that children with disabilities will be able to
adhere to school rules; (2) IDEA provisions regarding removal of
students from their current placement when their behavior significantly
violates school discipline codes; and (3) the requirement of the IDEA
for the continuation of services for children with disabilities who are
disciplined.
1. Why are there special rules about discipline for children with
disabilities?
The protections in the IDEA regarding discipline are designed to
prevent the type of often speculative and subjective decision making by
school officials that led to widespread abuses of the rights of
children with disabilities to an appropriate education in the past. For
example, in Mills v. Board of Education of the District of Columbia
(1972) the court recognized that many children were being excluded
entirely from education merely because they had been identified as
having a behavior disorder. It is important to keep in mind, however,
that these protections do not prevent school officials from maintaining
a learning environment that is safe and conducive to learning for all
children. Well run schools that have good leadership, well-trained
teachers and high standards for all students have fewer discipline
problems than schools that do not.
It is also extremely important to keep in mind that the provisions
of the statute and regulation concerning the amount of time a child
with a disability can be removed from his or her regular placement for
disciplinary reasons are only called into play if the removal
constitutes a change of placement and the parent objects to proposed
action by school officials (or objects to a refusal by school officials
to take an action) and requests a due process hearing. The discipline
rules concerning the amount of time a child can be removed from his or
her current placement essentially are exceptions to the generally
applicable requirement that a child remains in his or her current
placement during the pendency of due process, and subsequent judicial,
proceedings. (See, section 615(j) of the Act and Sec. 300.514.) If
school officials believe that a child's placement is inappropriate they
can work with the child's parent through the IEP and placement
processes to come up with an appropriate placement for the child that
will meet the needs of the child and result in his or her improved
learning and the learning of others and ensure a safe environment. In
addition to the other measures discussed in the following questions,
the discipline provisions of the IDEA allow responsible and appropriate
changes in placement of children with disabilities when their parents
do not object.

[[Page 12415]]

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

[[Page 12416]]

response, such as suspension, to that behavior.
5. What must a school district do when removing a child with a
disability from his or her current placement for the eleventh
cumulative day in a school year?
Beginning on the eleventh cumulative day in a school year that a
child with a disability is removed from his or her current placement,
the school district must provide those services that school personnel
(for example, the school administrator or other appropriate school
personnel) in consultation with the child's special education teacher
determine to be necessary to enable the child to appropriately progress
in the general curriculum and appropriately advance toward achieving
the goals set out in the child's IEP. School personnel would determine
where those services would be provided. This means that for the
remainder of the removal that includes the eleventh day, and for any
subsequent removals, services must be provided to the extent determined
necessary, while the removal continues. Sec. 300.121(d)(2) and (3).
Not later than 10 business days after removing a child with a
disability for more than 10 school days in a school year, the school
district must convene an IEP team meeting to develop a behavioral
assessment plan if the district has not already conducted a functional
behavioral assessment and implemented a behavioral intervention plan
for the child. If a child with a disability who is being removed for
the eleventh cumulative school day in a school year already has a
behavioral intervention plan, the school district must convene the IEP
team (either before or not later than 10 business days after first
removing the child for more than 10 school days in a school year) to
review the plan and its implementation, and modify the plan and its
implementation as necessary to address the behavior. Sec. 300.520(b).
A manifestation determination would not be required unless the
removal that includes the eleventh cumulative school day of removal in
a school year is a change of placement. Sec. 300.523(a).
6. Does the IDEA or its regulations mean that a child with a disability
can never be suspended for more than 10 school days at a time or
expelled for behavior that is not a manifestation of his or her
disability?
No. If the IEP team concludes that the child's behavior was not a
manifestation of the child's disability, the child can be disciplined
in the same manner as nondisabled children, except that appropriate
educational services must be provided. Sec. 300.524(a). This means that
if nondisabled children are long-term suspended or expelled for a
particular violation of school rules, the child with disabilities may
also be long-term suspended or expelled. Educational services must be
provided to the extent the child's IEP team determines necessary to
enable the child to appropriately progress in the general curriculum
and appropriately advance toward the goals set out in the child's IEP.
Sec. 300.121(d)(2).
7. Does the statutory language ``carries a weapon to school or to a
school function'' cover instances in which the child acquires a weapon
at school?
Yes. Although the statutory language ``carries a weapon to school
or to a school function'' could be viewed as ambiguous on this point,
in light of the clear intent of Congress in the Act to expand the
authority of school personnel to immediately address school weapons
offenses, the Department's opinion is that this language also covers
instances in which the child is found to have a weapon that he or she
obtained while at school.

Goals 2000: Educate America Act

The Goals 2000: Educate America Act (Goals 2000) focuses the
Nation's education reform efforts on the eight National Education Goals
and provides a framework for meeting them. Goals 2000 promotes new
partnerships to strengthen schools and expands the Department's
capacities for helping communities to exchange ideas and obtain
information needed to achieve the goals.
These final regulations address the following National Education
Goals:
All children in America will start school ready to learn.
The high school graduation rate will increase to at least
90 percent.
All students will leave grades 4, 8, and 12 having
demonstrated competency in challenging subject matter, including
English, mathematics, science, foreign languages, civics and
government, economics, arts, history, and geography; and every school
in America will ensure that all students learn to use their minds well,
so they may be prepared for responsible citizenship, further learning,
and productive employment in our Nation's modern economy.
United States students will be first in the world in
mathematics and science achievement.
Every adult American will be literate and will possess the
knowledge and skills necessary to compete in a global economy and
exercise the rights and responsibilities of citizenship.
Every school in the United States will be free of drugs,
violence, and the unauthorized presence of firearms and alcohol and
will offer a disciplined environment conducive to learning.
The Nation's teaching force will have access to programs
for the continued improvement of their professional skills and the
opportunity to acquire the knowledge and skills needed to instruct and
prepare all American students for the next century.
Every school will promote partnerships that will increase
parental involvement and participation in promoting the social,
emotional, and academic growth of children.

Executive Order 12866

This is a significant regulatory action under section 3(f)(1) of
Executive Order 12866 and, therefore, these final regulations have been
reviewed by the Office of Management and Budget in accordance with that
order. Because it has been determined that these regulations are
economically significant under the order, the Department has conducted
an economic analysis, which is provided in Attachment 2. This
regulation has also been determined to be a major rule under the Small
Business Regulatory Enforcement Fairness Act of 1996.
These final regulations implement changes made to the Individuals
with Disabilities Education Act by the IDEA Amendments of 1997 and make
other changes determined by the Secretary as necessary for
administering this program effectively and efficiently.
The IDEA Amendments of 1997 made a number of significant changes to
the law. While retaining the basic rights and protections that have
been in the law since 1975, the amendments strengthened the focus of
the law on improving results for children with disabilities. The
amendments accomplished this through changes that promote the early
identification of, and provision of services to, children with
disabilities, the development of individualized education programs that
enhance the participation of children with disabilities in the general
curriculum, the education of children with disabilities with
nondisabled children, higher expectations for children with
disabilities and accountability for their educational results, the
involvement of parents in their children's education, and reducing
unnecessary paperwork and other burdens to better direct resources to
improved teaching and learning.

[[Page 12417]]

All of these objectives are reflected in these final regulations,
which largely reflect the changes to the statute made by IDEA
Amendments of 1997.
In assessing the potential costs and benefits--both quantitative
and qualitative--of these final regulations, the Secretary has
determined that the benefits of these final regulations justify the
costs.
The Secretary has also determined that this regulatory action does
not unduly interfere with State, local, and tribal governments in the
exercise of their governmental functions.

Paperwork Reduction Act of 1995

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

[[Page 12418]]

Minimizing the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology; e.g., permitting
electronic submission of responses.
OMB is required to make a decision concerning the collections of
information contained in these proposed regulations between 30 and 60
days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. This does not affect
the deadline for the public to comment to the Department on the
proposed regulations.

Regulatory Flexibility Act Certification

The Secretary certifies that these final regulations will not have
a significant economic impact on a substantial number of small
entities. The small entities that would be affected by these
regulations are small local educational agencies receiving Federal
funds under this program. These regulations would not have a
significant economic impact on the small LEAs affected because these
regulations impose minimal requirements beyond those that would
otherwise be required by the statute. In addition, increased costs
imposed by these regulations on LEAs are expected to be offset by
savings to be realized by LEAs.

Intergovernmental Review

This program is subject to the requirements of Executive Order
12372 and the regulations in 34 CFR part 79. The objective of the
Executive order is to foster an intergovernmental partnership and a
strengthened federalism by relying on processes developed by State and
local governments for coordination and review of proposed Federal
financial assistance.
In accordance with the order, this document is intended to provide
early notification of the Department's specific plans and actions for
this program.

Assessment of Educational Impact

In the NPRM published on October 22, 1997, the Secretary requested
comments on whether the proposed regulations would require transmission
of information that is being gathered by or is available from any other
agency or authority of the United States.
Based on the response to the NPRM and on its own review, the
Department has determined that the regulations in this document do not
require transmission of information that is being gathered by or is
available from any other agency or authority of the United States.

Electronic Access to This Document

Anyone may also view this document, as well as all other Department
of Education documents published in the Federal Register, in text or
portable document format (pdf) on the World Wide Web at either of the
following sites:
http://gcs.ed.gov/fedreg.htm

http://www.ed.gov/news.html

To use the pdf you must have the Adobe Acrobat Reader Program with
Search, which is available free at either of the previous sites. If you
have questions about using the pdf, call the U.S. Government Printing
Office toll free at 1-888-293-6498.
Anyone may also view these documents in text copy only on an
electronic bulletin board of the Department. Telephone: (202) 219-1511
or, toll free, 1-800-222-4922. The documents are located under Option
G--Files/Announcements, Bulletins and Press Releases.

Note: The official version of this document is the document
published in the Federal Register.

List of Subjects

34 CFR Part 300

Administrative practice and procedure, Education of individuals
with disabilities, Elementary and secondary education, Equal
educational opportunity, Grant programs-- education, Privacy, Private
schools, Reporting and recordkeeping requirements.

34 CFR Part 303

Education of individuals with disabilities, Grant programs--
education, Infants and children, Reporting and recordkeeping
requirements.

Dated: March 4, 1999.
Richard W. Riley,
Secretary of Education.

(Catalog of Federal Domestic Assistance Number: 84.027 Assistance to
States for the Education of Children with Disabilities, and 84.181
Early Intervention Program for Infants and Toddlers with
Disabilities)

The Secretary amends Title 34 of the Code of Federal Regulations by
revising part 300 and amending part 303 as follows:
1. Part 300 is revised to read as follows:

PART 300--ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH
DISABILITIES

Subpart A--General

Purposes, Applicability, and Regulations That Apply to This Program

Sec.
300.1 Purposes.
300.2 Applicability of this part to State, local, and private
agencies.

Definitions Used in This Part

300.3 Regulations that apply.
300.4 Act.
300.5 Assistive technology device.
300.6 Assistive technology service.
300.7 Child with a disability.
300.8 Consent.
300.9 Day; business day; school day.
300.10 Educational service agency.
300.11 Equipment.
300.12 Evaluation.
300.13 Free appropriate public education.
300.14 Include.
300.15 Individualized education program.
300.16 Individualized education program team.
300.17 Individualized family service plan.
300.18 Local educational agency.
300.19 Native language.
300.20 Parent.
300.21 Personally identifiable.
300.22 Public agency.
300.23 Qualified personnel.
300.24 Related services.
300.25 Secondary school.
300.26 Special education.
300.27 State.
300.28 Supplementary aids and services.
300.29 Transition services.
300.30 Definitions in EDGAR.

Subpart B--State and Local Eligibility

State Eligibility--General

300.110 Condition of assistance.
300.111 Exception for prior State policies and procedures on file
with the Secretary.
300.112 Amendments to State policies and procedures.
300.113 Approval by the Secretary.
300.114--300.120 [Reserved]

State Eligibility--Specific Conditions

300.121 Free appropriate public education (FAPE).
300.122 Exception to FAPE for certain ages.
300.123 Full educational opportunity goal (FEOG).
300.124 FEOG--timetable.
300.125 Child find.
300.126 Procedures for evaluation and determination of eligibility.
300.127 Confidentiality of personally identifiable information.
300.128 Individualized education programs.
300.129 Procedural safeguards.
300.130 Least restrictive environment.
300.131 [Reserved]
300.132 Transition of children from Part C to preschool programs.
300.133 Children in private schools.
300.134 [Reserved]

[[Page 12419]]

300.135 Comprehensive system of personnel development.
300.136 Personnel standards.
300.137 Performance goals and indicators.
300.138 Participation in assessments.
300.139 Reports relating to assessments.
300.140 [Reserved]
300.141 SEA responsibility for general supervision.
300.142 Methods of ensuring services.
300.143 SEA implementation of procedural safeguards.
300.144 Hearings relating to LEA eligibility.
300.145 Recovery of funds for misclassified children.
300.146 Suspension and expulsion rates.
300.147 Additional information if SEA provides direct services.
300.148 Public participation.
300.149 [Reserved]
300.150 State advisory panel.
300.151 [Reserved]
300.152 Prohibition against commingling.
300.153 State-level nonsupplanting.
300.154 Maintenance of State financial support.
300.155 Policies and procedures for use of Part B funds.
300.156 Annual description of use of Part B funds.

LEA and State Agency Eligibility--General

300.180 Condition of assistance.
300.181 Exception for prior LEA or State agency policies and
procedures on file with the SEA.
300.182 Amendments to LEA policies and procedures.
300.183 [Reserved]
300.184 Excess cost requirement.
300.185 Meeting the excess cost requirement.
300.186--300.189 [Reserved]
300.190 Joint establishment of eligibility.
300.191 [Reserved]
300.192 Requirements for establishing eligibility.
300.193 [Reserved]
300.194 State agency eligibility.
300.195 [Reserved]
300.196 Notification of LEA or State agency in case of
ineligibility.
300.197 LEA and State agency compliance.

LEA and State Agency Eligibility--Specific Conditions

300.220 Consistency with State policies.
300.221 Implementation of CSPD.
300.222--300.229 [Reserved]
300.230 Use of amounts.
300.231 Maintenance of effort.
300.232 Exception to maintenance of effort.
300.233 Treatment of federal funds in certain fiscal years.
300.234 Schoolwide programs under title I of the ESEA.
300.235 Permissive use of funds.
300.236--300.239 [Reserved]
300.240 Information for SEA.
300.241 Treatment of charter schools and their students.
300.242 Public information.
300.243 [Reserved]
300.244 Coordinated services system.

School-Based Improvement Plan

300.245 School-based improvement plan.
300.246 Plan requirements.
300.247 Responsibilities of the LEA.
300.248 Limitation.
300.249 Additional requirements.
300.250 Extension of plan.

Secretary of the Interior--Eligibility

300.260 Submission of information.
300.261 Public participation.
300.262 Use of Part B funds.
300.263 Plan for coordination of services.
300.264 Definitions.
300.265 Establishment of advisory board.
300.266 Annual report by advisory board.
300.267 Applicable regulations.

Public Participation

300.280 Public hearings before adopting State policies and
procedures.
300.281 Notice.
300.282 Opportunity to participate; comment period.
300.283 Review of public comments before adopting policies and
procedures.
300.284 Publication and availability of approved policies and
procedures.

Subpart C--Services

Free Appropriate Public Education

300.300 Provision of FAPE.
300.301 FAPE--methods and payments.
300.302 Residential placement.
300.303 Proper functioning of hearing aids.
300.304 Full educational opportunity goal.
300.305 Program options.
300.306 Nonacademic services.
300.307 Physical education.
300.308 Assistive technology.
300.309 Extended school year services.
300.310 [Reserved]
300.311 FAPE requirements for students with disabilities in adult
prisons.
300.312 Children with disabilities in public charter schools.
300.313 Children experiencing developmental delays.

Evaluations and Reevaluations

300.320 Initial evaluations.
300.321 Reevaluations.
300.322--300.324 [Reserved]

Individualized Education Programs

300.340 Definitions related to IEPs.
300.341 Responsibility of SEA and other public agencies for IEPs.
300.342 When IEPs must be in effect.
300.343 IEP Meetings.
300.344 IEP team.
300.345 Parent participation.
300.346 Development, review, and revision of IEP.
300.347 Content of IEP.
300.348 Agency responsibilities for transition services.
300.349 Private school placements by public agencies.
300.350 IEPs--accountability.

Direct Services by the Sea

300.360 Use of LEA allocation for direct services.
300.361 Nature and location of services.
300.362--300.369 [Reserved]
300.370 Use of SEA allocations.
300.371 [Reserved]
300.372 Nonapplicability of requirements that prohibit commingling
and supplanting of funds.

Comprehensive System of Personnel Development (CSPD)

300.380 General CSPD requirements.
300.381 Adequate supply of qualified personnel.
300.382 Improvement strategies.
300.383--300.387 [Reserved]

Subpart D--Children in Private Schools

Children With Disabilities in Private Schools Placed or Referred by
Public Agencies

300.400 Applicability of Secs. 300.400-300.402.
300.401 Responsibility of State educational agency.
300.402 Implementation by State educational agency.

Children With Disabilities Enrolled by Their Parents in Private Schools
When FAPE is at Issue

300.403 Placement of children by parents if FAPE is at issue.

Children With Disabilities Enrolled by Their Parents in Private Schools

300.450 Definition of ``private school children with
disabilities.''
300.451 Child find for private school children with disabilities.
300.452 Provision of services--basic requirement.
300.453 Expenditures.
300.454 Services determined.
300.455 Services provided.
300.456 Location of services; transportation.
300.457 Complaints.
300.458 Separate classes prohibited.
300.459 Requirement that funds not benefit a private school.
300.460 Use of public school personnel.
300.461 Use of private school personnel.
300.462 Requirements concerning property, equipment, and supplies
for the benefit of private school children with disabilities.

Procedures for By-Pass

300.480 By-pass--general.
300.481 Provisions for services under a by-pass.
300.482 Notice of intent to implement a by-pass.
300.483 Request to show cause.
300.484 Show cause hearing.
300.485 Decision.
300.486 Filing requirements.
300.487 Judicial review.

Subpart E--Procedural Safeguards

Due Process Procedures for Parents and Children

300.500 General responsibility of public agencies; definitions.
300.501 Opportunity to examine records; parent participation in
meetings.
300.502 Independent educational evaluation.

[[Page 12420]]

300.503 Prior notice by the public agency; content of notice.
300.504 Procedural safeguards notice.
300.505 Parental consent.
300.506 Mediation.
300.507 Impartial due process hearing; parent notice.
300.508 Impartial hearing officer.
300.509 Hearing rights.
300.510 Finality of decision; appeal; impartial review.
300.511 Timelines and convenience of hearings and reviews.
300.512 Civil action.
300.513 Attorneys' fees.
300.514 Child's status during proceedings.
300.515 Surrogate parents.
300.516 [Reserved]
300.517 Transfer of parental rights at age of majority.

Discipline Procedures

300.519 Change of placement for disciplinary removals.
300.520 Authority of school personnel.
300.521 Authority of hearing officer.
300.522 Determination of setting.
300.523 Manifestation determination review.
300.524 Determination that behavior was not manifestation of
disability.
300.525 Parent appeal.
300.526 Placement during appeals.
300.527 Protections for children not yet eligible for special
education and related services.
300.528 Expedited due process hearings.
300.529 Referral to and action by law enforcement and judicial
authorities.

Procedures for Evaluation and Determination of Eligibility

300.530 General.
300.531 Initial evaluation.
300.532 Evaluation procedures.
300.533 Determination of needed evaluation data.
300.534 Determination of eligibility.
300.535 Procedures for determining eligibility and placement.
300.536 Reevaluation.

Additional Procedures for Evaluating Children With Specific Learning
Disabilities

300.540 Additional team members.
300.541 Criteria for determining the existence of a specific
learning disability.
300.542 Observation.
300.543 Written report.

Least Restrictive Environment (LRE)

300.550 General LRE requirements.
300.551 Continuum of alternative placements.
300.552 Placements.
300.553 Nonacademic settings.
300.554 Children in public or private institutions.
300.555 Technical assistance and training activities.
300.556 Monitoring activities.

Confidentiality of Information

300.560 Definitions.
300.561 Notice to parents.
300.562 Access rights.
300.563 Record of access.
300.564 Records on more than one child.
300.565 List of types and locations of information.
300.566 Fees.
300.567 Amendment of records at parent's request.
300.568 Opportunity for a hearing.
300.569 Result of hearing.
300.570 Hearing procedures.
300.571 Consent.
300.572 Safeguards.
300.573 Destruction of information.
300.574 Children's rights.
300.575 Enforcement.
300.576 Disciplinary information.
300.577 Department use of personally identifiable information.

Department Procedures

300.580 Determination by the Secretary that a State is eligible.
300.581 Notice and hearing before determining that a State is not
eligible.
300.582 Hearing official or panel.
300.583 Hearing procedures.
300.584 Initial decision; final decision.
300.585 Filing requirements.
300.586 Judicial review.
300.587 Enforcement.
300.588 [Reserved]
300.589 Waiver of requirement regarding supplementing and not
supplanting with Part B funds.

Subpart F--State Administration

General

300.600 Responsibility for all educational programs.
300.601 Relation of Part B to other Federal programs.
300.602 State-level activities.

Use of Funds

300.620 Use of funds for State administration.
300.621 Allowable costs.
300.622 Subgrants to LEAs for capacity-building and improvement.
300.623 Amount required for subgrants to LEAs.
300.624 State discretion in awarding subgrants.

State Advisory Panel

300.650 Establishment of advisory panels.
300.651 Membership.
300.652 Advisory panel functions.
300.653 Advisory panel procedures.

State Complaint Procedures

300.660 Adoption of State complaint procedures.
300.661 Minimum State complaint procedures.
300.662 Filing a complaint.

Subpart G--Allocation of Funds; Reports

Allocations

300.700 Special definition of the term ``State.''
300.701 Grants to States.
300.702 Definition.
300.703 Allocations to States.
300.704-300.705 [Reserved]
300.706 Permanent formula.
300.707 Increase in funds.
300.708 Limitation.
300.709 Decrease in funds.
300.710 Allocation for State in which by-pass is implemented for
private school children with disabilities.
300.711 Subgrants to LEAs.
300.712 Allocations to LEAs.
300.713 Former Chapter 1 State agencies.
300.714 Reallocation of LEA funds.
300.715 Payments to the Secretary of the Interior for the education
of Indian children.
300.716 Payments for education and services for Indian children
with disabilities aged 3 through 5.
300.717 Outlying areas and freely associated States.
300.718 Outlying area--definition.
300.719 Limitation for freely associated States.
300.720 Special rule.
300.721 [Reserved]
300.722 Definition.

Reports

300.750 Annual report of children served--report requirement.
300.751 Annual report of children served--information required in
the report.
300.752 Annual report of children served--certification.
300.753 Annual report of children served--criteria for counting
children.
300.754 Annual report of children served--other responsibilities of
the SEA.
300.755 Disproportionality.
300.756 Acquisition of equipment; construction or alteration of
facilities.
Appendix A to Part 300--Notice of Interpretation
Appendix B to Part 300--Index for IDEA--Part B Regulations

Authority: 20 U.S.C. 1411-1420, unless otherwise noted.

Subpart A--General

Purposes, Applicability, and Regulations That Apply to This Program

Sec. 300.1 Purposes.

The purposes of this part are--
(a) To ensure that all children with disabilities have available to
them a free appropriate public education that emphasizes special
education and related services designed to meet their unique needs and
prepare them for employment and independent living;
(b) To ensure that the rights of children with disabilities and
their parents are protected;
(c) To assist States, localities, educational service agencies, and
Federal agencies to provide for the education of all children with
disabilities; and
(d) To assess and ensure the effectiveness of efforts to educate
children with disabilities.

(Authority: 20 U.S.C. 1400 note)

[[Page 12421]]

Sec. 300.2 Applicability of this part to State, local, and private
agencies.

(a) States. This part applies to each State that receives payments
under Part B of the Act.
(b) Public agencies within the State. The provisions of this part--
(1) Apply to all political subdivisions of the State that are
involved in the education of children with disabilities, including--
(i) The State educational agency (SEA);
(ii) Local educational agencies (LEAs), educational service
agencies (ESAs), and public charter schools that are not otherwise
included as LEAs or ESAs and are not a school of an LEA or ESA;
(iii) Other State agencies and schools (such as Departments of
Mental Health and Welfare and State schools for children with deafness
or children with blindness); and
(iv) State and local juvenile and adult correctional facilities;
and
(2) Are binding on each public agency in the State that provides
special education and related services to children with disabilities,
regardless of whether that agency is receiving funds under Part B.
(c) Private schools and facilities. Each public agency in the State
is responsible for ensuring that the rights and protections under Part
B of the Act are given to children with disabilities--
(1) Referred to or placed in private schools and facilities by that
public agency; or
(2) Placed in private schools by their parents under the provisions
of Sec. 300.403(c).

(Authority: 20 U.S.C. 1412)

Sec. 300.3 Regulations that apply.

The following regulations apply to this program:
(a) 34 CFR part 76 (State-Administered Programs) except for
Secs. 76.125-76.137 and 76.650-76.662.
(b) 34 CFR part 77 (Definitions).
(c) 34 CFR part 79 (Intergovernmental Review of Department of
Education Programs and Activities).
(d) 34 CFR part 80 (Uniform Administrative Requirements for Grants
and Cooperative Agreements to State and Local Governments).
(e) 34 CFR part 81 (General Education Provisions Act--Enforcement).
(f) 34 CFR part 82 (New Restrictions on Lobbying).
(g) 34 CFR part 85 (Government-wide Debarment and Suspension
(Nonprocurement) and Government-wide Requirements for Drug-Free
Workplace (Grants)).
(h) The regulations in this part--34 CFR part 300 (Assistance for
Education of Children with Disabilities).

(Authority: 20 U.S.C. 1221e-3(a)(1))

Definitions Used in This Part

Sec. 300.4 Act.

As used in this part, Act means the Individuals with Disabilities
Education Act (IDEA), as amended.

(Authority: 20 U.S.C. 1400(a))

Sec. 300.5 Assistive technology device.

As used in this part, Assistive technology device means any item,
piece of equipment, or product system, whether acquired commercially
off the shelf, modified, or customized, that is used to increase,
maintain, or improve the functional capabilities of a child with a
disability.

(Authority: 20 U.S.C. 1401(1))

Sec. 300.6 Assistive technology service.

As used in this part, Assistive technology service means any
service that directly assists a child with a disability in the
selection, acquisition, or use of an assistive technology device.
The term includes--
(a) The evaluation of the needs of a child with a disability,
including a functional evaluation of the child in the child's customary
environment;
(b) Purchasing, leasing, or otherwise providing for the acquisition
of assistive technology devices by children with disabilities;
(c) Selecting, designing, fitting, customizing, adapting, applying,
maintaining, repairing, or replacing assistive technology devices;
(d) Coordinating and using other therapies, interventions, or
services with assistive technology devices, such as those associated
with existing education and rehabilitation plans and programs;
(e) Training or technical assistance for a child with a disability
or, if appropriate, that child's family; and
(f) Training or technical assistance for professionals (including
individuals providing education or rehabilitation services), employers,
or other individuals who provide services to, employ, or are otherwise
substantially involved in the major life functions of that child.

(Authority: 20 U.S.C. 1401(2))

Sec. 300.7 Child with a disability.

(a) General. (1) As used in this part, the term child with a
disability means a child evaluated in accordance with Secs. 300.530-
300.536 as having mental retardation, a hearing impairment including
deafness, a speech or language impairment, a visual impairment
including blindness, serious emotional disturbance (hereafter referred
to as emotional disturbance), an orthopedic impairment, autism,
traumatic brain injury, an other health impairment, a specific learning
disability, deaf-blindness, or multiple disabilities, and who, by
reason thereof, needs special education and related services.
(2)(i) Subject to paragraph (a)(2)(ii) of this section, if it is
determined, through an appropriate evaluation under Secs. 300.530-
300.536, that a child has one of the disabilities identified in
paragraph (a)(1) of this section, but only needs a related service and
not special education, the child is not a child with a disability under
this part.
(ii) If, consistent with Sec. 300.26(a)(2), the related service
required by the child is considered special education rather than a
related service under State standards, the child would be determined to
be a child with a disability under paragraph (a)(1) of this section.
(b) Children aged 3 through 9 experiencing developmental delays.
The term child with a disability for children aged 3 through 9 may, at
the discretion of the State and LEA and in accordance with
Sec. 300.313, include a child--
(1) Who is experiencing developmental delays, as defined by the
State and as measured by appropriate diagnostic instruments and
procedures, in one or more of the following areas: physical
development, cognitive development, communication development, social
or emotional development, or adaptive development; and
(2) Who, by reason thereof, needs special education and related
services.
(c) Definitions of disability terms. The terms used in this
definition are defined as follows:
(1)(i) Autism means a developmental disability significantly
affecting verbal and nonverbal communication and social interaction,
generally evident before age 3, that adversely affects a child's
educational performance. Other characteristics often associated with
autism are engagement in repetitive activities and stereotyped
movements, resistance to environmental change or change in daily
routines, and unusual responses to sensory experiences. The term does
not apply if a child's educational performance is adversely affected
primarily because the child has an emotional disturbance, as defined in
paragraph (b)(4) of this section.
(ii) A child who manifests the characteristics of ``autism'' after
age 3 could be diagnosed as having ``autism'' if the criteria in
paragraph (c)(1)(i) of this section are satisfied.

[[Page 12422]]

(2) Deaf-blindness means concomitant hearing and visual
impairments, the combination of which causes such severe communication
and other developmental and educational needs that they cannot be
accommodated in special education programs solely for children with
deafness or children with blindness.
(3) Deafness means a hearing impairment that is so severe that the
child is impaired in processing linguistic information through hearing,
with or without amplification, that adversely affects a child's
educational performance.
(4) Emotional disturbance is defined as follows:
(i) The term means a condition exhibiting one or more of the
following characteristics over a long period of time and to a marked
degree that adversely affects a child's educational performance:
(A) An inability to learn that cannot be explained by intellectual,
sensory, or health factors.
(B) An inability to build or maintain satisfactory interpersonal
relationships with peers and teachers.
(C) Inappropriate types of behavior or feelings under normal
circumstances.
(D) A general pervasive mood of unhappiness or depression.
(E) A tendency to develop physical symptoms or fears associated
with personal or school problems.
(ii) The term includes schizophrenia. The term does not apply to
children who are socially maladjusted, unless it is determined that
they have an emotional disturbance.
(5) Hearing impairment means an impairment in hearing, whether
permanent or fluctuating, that adversely affects a child's educational
performance but that is not included under the definition of deafness
in this section.
(6) Mental retardation means significantly subaverage general
intellectual functioning, existing concurrently with deficits in
adaptive behavior and manifested during the developmental period, that
adversely affects a child's educational performance.
(7) Multiple disabilities means concomitant impairments (such as
mental retardation-blindness, mental retardation-orthopedic impairment,
etc.), the combination of which causes such severe educational needs
that they cannot be accommodated in special education programs solely
for one of the impairments. The term does not include deaf-blindness.
(8) Orthopedic impairment means a severe orthopedic impairment that
adversely affects a child's educational performance. The term includes
impairments caused by congenital anomaly (e.g., clubfoot, absence of
some member, etc.), impairments caused by disease (e.g., poliomyelitis,
bone tuberculosis, etc.), and impairments from other causes (e.g.,
cerebral palsy, amputations, and fractures or burns that cause
contractures).
(9) Other health impairment means having limited strength, vitality
or alertness, including a heightened alertness to environmental
stimuli, that results in limited alertness with respect to the
educational environment, that--
(i) Is due to chronic or acute health problems such as asthma,
attention deficit disorder or attention deficit hyperactivity disorder,
diabetes, epilepsy, a heart condition, hemophilia, lead poisoning,
leukemia, nephritis, rheumatic fever, and sickle cell anemia; and
(ii) Adversely affects a child's educational performance.
(10) Specific learning disability is defined as follows:
(i) General. The term means a disorder in one or more of the basic
psychological processes involved in understanding or in using language,
spoken or written, that may manifest itself in an imperfect ability to
listen, think, speak, read, write, spell, or to do mathematical
calculations, including conditions such as perceptual disabilities,
brain injury, minimal brain dysfunction, dyslexia, and developmental
aphasia.
(ii) Disorders not included. The term does not include learning
problems that are primarily the result of visual, hearing, or motor
disabilities, of mental retardation, of emotional disturbance, or of
environmental, cultural, or economic disadvantage.
(11) Speech or language impairment means a communication disorder,
such as stuttering, impaired articulation, a language impairment, or a
voice impairment, that adversely affects a child's educational
performance.
(12) Traumatic brain injury means an acquired injury to the brain
caused by an external physical force, resulting in total or partial
functional disability or psychosocial impairment, or both, that
adversely affects a child's educational performance. The term applies
to open or closed head injuries resulting in impairments in one or more
areas, such as cognition; language; memory; attention; reasoning;
abstract thinking; judgment; problem-solving; sensory, perceptual, and
motor abilities; psychosocial behavior; physical functions; information
processing; and speech. The term does not apply to brain injuries that
are congenital or degenerative, or to brain injuries induced by birth
trauma.
(13) Visual impairment including blindness means an impairment in
vision that, even with correction, adversely affects a child's
educational performance. The term includes both partial sight and
blindness.

(Authority: 20 U.S.C. 1401(3)(A) and (B); 1401(26))

Sec. 300.8 Consent.

As used in this part, the term consent has the meaning given that
term in Sec. 300.500(b)(1).

(Authority: 20 U.S.C. 1415(a))

Sec. 300.9 Day; business day; school day.

As used in this part, the term--
(a) Day means calendar day unless otherwise indicated as business
day or school day;
(b) Business day means Monday through Friday, except for Federal
and State holidays (unless holidays are specifically included in the
designation of business day, as in Sec. 300.403(d)(1)(ii)); and
(c)(1) School day means any day, including a partial day, that
children are in attendance at school for instructional purposes.
(2) The term school day has the same meaning for all children in
school, including children with and without disabilities.

(Authority: 20 U.S.C. 1221e-3)

Sec. 300.10 Educational service agency.

As used in this part, the term educational service agency--
(a) Means a regional public multiservice agency--
(1) Authorized by State law to develop, manage, and provide
services or programs to LEAs; and
(2) Recognized as an administrative agency for purposes of the
provision of special education and related services provided within
public elementary and secondary schools of the State;
(b) Includes any other public institution or agency having
administrative control and direction over a public elementary or
secondary school; and
(c) Includes entities that meet the definition of intermediate
educational unit in section 602(23) of IDEA as in effect prior to June
4, 1997.

(Authority: 20 U.S.C. 1401(4))

Sec. 300.11 Equipment.

As used in this part, the term equipment mean

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A99-5754. Public record. Not legal advice.