34 C.F.R. Subpart B—State and Local Eligibility
Title 34 - Education
(a) A State is eligible for assistance under Part B of the Act for a fiscal year if the State demonstrates to the satisfaction of the Secretary that the State has in effect policies and procedures to ensure that it meets the conditions in §§300.121–300.156. (b) To meet the requirement of paragraph (a) of this section, the State must have on file with the Secretary— (1) The information specified in §§300.121–300.156 that the State uses to implement the requirements of this part; and (2) Copies of all applicable State statutes, regulations, and other State documents that show the basis of that information. (Authority: 20 U.S.C. 1412(a)) If a State has on file with the Secretary policies and procedures approved by the Secretary that demonstrate that the State meets any requirement of §300.110, including any policies and procedures filed under Part B of the Act as in effect before June 4, 1997, the Secretary considers the State to have met the requirement for purposes of receiving a grant under Part B of the Act. (Authority: 20 U.S.C. 1412(c)(1)) (a) Modifications made by a State. (1) Subject to paragraph (b) of this section, policies and procedures submitted by a State in accordance with this subpart remain in effect until the State submits to the Secretary the modifications that the State decides are necessary. (2) The provisions of this subpart apply to a modification to a State's policies and procedures in the same manner and to the same extent that they apply to the State's original policies and procedures. (b) Modifications required by the Secretary. The Secretary may require a State to modify its policies and procedures, but only to the extent necessary to ensure the State's compliance with this part, if— (1) After June 4, 1997, the provisions of the Act or the regulations in this part are amended; (2) There is a new interpretation of this Act or regulations by a Federal court or a State's highest court; or (3) There is an official finding of noncompliance with Federal law or regulations. (Authority: 20 U.S.C. 1412(c)(2) and (3)) (a) General. If the Secretary determines that a State is eligible to receive a grant under Part B of the Act, the Secretary notifies the State of that determination. (b) Notice and hearing before determining a State is not eligible. The Secretary does not make a final determination that a State is not eligible to receive a grant under Part B of the Act until after providing the State reasonable notice and an opportunity for a hearing in accordance with the procedures in §§300.581–300.586. (Authority: 20 U.S.C. 1412(d))
Title 34: Education
PART 300—ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH DISABILITIES
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).
(a) General. Each State must have on file with the Secretary information that shows that, subject to §300.122, the State has in effect a policy that ensures that all children with disabilities aged 3 through 21 residing in the State have the right to FAPE, including children with disabilities who have been suspended or expelled from school.
(b) Required information. The information described in paragraph (a) of this section must—
(1) Include a copy of each State statute, court order, State Attorney General opinion, and other State documents that show the source of the State's policy relating to FAPE; and
(2) Show that the policy—
(i)(A) Applies to all public agencies in the State; and
(B) Is consistent with the requirements of §§300.300–300.313; and
(ii) Applies to all children with disabilities, including children who have been suspended or expelled from school.
(c) FAPE for children beginning at age 3. (1) Each State shall ensure that—
(i) The obligation to make FAPE available to each eligible child residing in the State begins no later than the child's third birthday; and
(ii) An IEP or an IFSP is in effect for the child by that date, in accordance with §300.342(c).
(2) If a child's third birthday occurs during the summer, the child's IEP team shall determine the date when services under the IEP or IFSP will begin.
(d) FAPE for children suspended or expelled from school. (1) A public agency need not provide services during periods of removal under §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 disabilities who has been similarly removed.
(2) In the case of a child with a disability who has been removed from his or her current placement for more than 10 school days in that school year, the public agency, for the remainder of the removals, must—
(i) Provide services to the extent 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, if the removal is—
(A) Under the school personnel's authority to remove for not more than 10 consecutive school days as long as that removal does not constitute a change of placement under §300.519(b) (§300.520((a)(1)); or
(B) For behavior that is not a manifestation of the child's disability, consistent with §300.524; and
(ii) Provide services consistent with §300.522, regarding determination of the appropriate interim alternative educational setting, if the removal is—
(A) For drug or weapons offenses under §300.520(a)(2); or
(B) Based on a hearing officer determination that maintaining the current placement of the child is substantially likely to result in injury to the child or to others if he or she remains in the current placement, consistent with §300.521.
(3)(i) School personnel, in consultation with the child's special education teacher, determine the extent to which services are 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 if the child is removed under the authority of school personnel to remove for not more than 10 consecutive school days as long as that removal does not constitute a change of placement under §300.519 (§300.520(a)(1)).
(ii) The child's IEP team determines the extent to which services are 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 if the child is removed because of behavior that has been determined not to be a manifestation of the child's disability, consistent with §300.524.
(e) Children advancing from grade to grade. (1) Each State shall ensure that FAPE is available to any individual child with a disability who needs special education and related services, even though the child is advancing from grade to grade.
(2) The determination that a child described in paragraph (a)(1) of this section is eligible under this part, must be made on an individual basis by the group responsible within the child's LEA for making those determinations.
(Authority: 20 U.S.C. 1412(a)(1))
§ 300.122 Exception to FAPE for certain ages.
(a) General. The obligation to make FAPE available to all children with disabilities does not apply with respect to the following:
(1) Children aged 3, 4, 5, 18, 19, 20, or 21 in a State to the extent that its application to those children would be inconsistent with State law or practice, or the order of any court, respecting the provision of public education to children in one or more of those age groups.
(2)(i) Students aged 18 through 21 to the extent that State law does not require that special education and related services under Part B of the Act be provided to students with disabilities who, in the last educational placement prior to their incarceration in an adult correctional facility—
(A) Were not actually identified as being a child with a disability under §300.7; and
(B) Did not have an IEP under Part B of the Act.
(ii) The exception in paragraph (a)(2)(i) of this section does not apply to students with disabilities, aged 18 through 21, who—
(A) Had been identified as a child with disability and had received services in accordance with an IEP, but who left school prior to their incarceration; or
(B) Did not have an IEP in their last educational setting, but who had actually been identified as a “child with a disability” under §300.7.
(3)(i) Students with disabilities who have graduated from high school with a regular high school diploma.
(ii) The exception in paragraph (a)(3)(i) of this section does not apply to students who have graduated but have not been awarded a regular high school diploma.
(iii) Graduation from high school with a regular diploma constitutes a change in placement, requiring written prior notice in accordance with §300.503.
(b) Documents relating to exceptions. The State must have on file with the Secretary—
(1)(i) Information that describes in detail the extent to which the exception in paragraph (a)(1) of this section applies to the State; and
(ii) A copy of each State law, court order, and other documents that provide a basis for the exception; and
(2) With respect to paragraph (a)(2) of this section, a copy of the State law that excludes from services under Part B of the Act certain students who are incarcerated in an adult correctional facility.
(Authority: 20 U.S.C. 1412(a)(1)(B))
§ 300.123 Full educational opportunity goal (FEOG).
The State must have on file with the Secretary detailed policies and procedures through which the State has established a goal of providing full educational opportunity to all children with disabilities aged birth through 21.
(Authority: 20 U.S.C. 1412(a)(2))
§ 300.124 FEOG—timetable.
The State must have on file with the Secretary a detailed timetable for accomplishing the goal of providing full educational opportunity for all children with disabilities.
(Authority: 20 U.S.C. 1412(a)(2))
§ 300.125 Child find.
(a) General requirement. (1) The State must have in effect policies and procedures to ensure that—
(i) All children with disabilities residing in the State, including children with disabilities attending private schools, regardless of the severity of their disability, and who are in need of special education and related services, are identified, located, and evaluated; and
(ii) A practical method is developed and implemented to determine which children are currently receiving needed special education and related services.
(2) The requirements of paragraph (a)(1) of this section apply to—
(i) Highly mobile children with disabilities (such as migrant and homeless children); and
(ii) Children who are suspected of being a child with a disability under §300.7 and in need of special education, even though they are advancing from grade to grade.
(b) Documents relating to child find. The State must have on file with the Secretary the policies and procedures described in paragraph (a) of this section, including—
(1) The name of the State agency (if other than the SEA) responsible for coordinating the planning and implementation of the policies and procedures under paragraph (a) of this section;
(2) The name of each agency that participates in the planning and implementation of the child find activities and a description of the nature and extent of its participation;
(3) A description of how the policies and procedures under paragraph (a) of this section will be monitored to ensure that the SEA obtains—
(i) The number of children with disabilities within each disability category that have been identified, located, and evaluated; and
(ii) Information adequate to evaluate the effectiveness of those policies and procedures; and
(4) A description of the method the State uses to determine which children are currently receiving special education and related services.
(c) Child find for children from birth through age 2 when the SEA and lead agency for the Part C program are different. (1) In States where the SEA and the State's lead agency for the Part C program are different and the Part C lead agency will be participating in the child find activities described in paragraph (a) of this section, a description of the nature and extent of the Part C lead agency's participation must be included under paragraph (b)(2) of this section.
(2) With the SEA's agreement, the Part C lead agency's participation may include the actual implementation of child find activities for infants and toddlers with disabilities.
(3) The use of an interagency agreement or other mechanism for providing for the Part C lead agency's participation does not alter or diminish the responsibility of the SEA to ensure compliance with the requirements of this section.
(d) Construction. Nothing in the Act requires that children be classified by their disability so long as each child who has a disability listed in §300.7 and who, by reason of that disability, needs special education and related services is regarded as a child with a disability under Part B of the Act.
(e) Confidentiality of child find data. The collection and use of data to meet the requirements of this section are subject to the confidentiality requirements of §§300.560–300.577.
(Authority: 20 U.S.C. 1412 (a)(3)(A) and (B))
§ 300.126 Procedures for evaluation and determination of eligibility.
The State must have on file with the Secretary policies and procedures that ensure that the requirements of §§300.530–300.536 are met.
(Authority: 20 U.S.C. 1412(a)(6)(B), (7))
§ 300.127 Confidentiality of personally identifiable information.
(a) The State must have on file in detail the policies and procedures that the State has undertaken to ensure protection of the confidentiality of any personally identifiable information, collected, used, or maintained under Part B of the Act.
(b) The Secretary uses the criteria in §§300.560–300.576 to evaluate the policies and procedures of the State under paragraph (a) of this section.
(Authority: 20 U.S.C. 1412(a)(8))
§ 300.128 Individualized education programs.
(a) General. The State must have on file with the Secretary information that shows that an IEP, or an IFSP that meets the requirements of section 636(d) of the Act, is developed, reviewed, and revised for each child with a disability in accordance with §§300.340–300.350.
(b) Required information. The information described in paragraph (a) of this section must include—
(1) A copy of each State statute, policy, and standard that regulates the manner in which IEPs are developed, implemented, reviewed, and revised; and
(2) The procedures that the SEA follows in monitoring and evaluating those IEPs or IFSPs.
(Authority: 20 U.S.C. 1412(a)(4))
§ 300.129 Procedural safeguards.
(a) The State must have on file with the Secretary procedural safeguards that ensure that the requirements of §§300.500–300.529 are met.
(b) Children with disabilities and their parents must be afforded the procedural safeguards identified in paragraph (a) of this section.
(Authority: 20 U.S.C. 1412(a)(6)(A))
§ 300.130 Least restrictive environment.
(a) General. The State must have on file with the Secretary procedures that ensure that the requirements of §§300.550–300.556 are met, including the provision in §300.551 requiring a continuum of alternative placements to meet the unique needs of each child with a disability.
(b) Additional requirement. (1) If the State uses a funding mechanism by which the State distributes State funds on the basis of the type of setting where a child is served, the funding mechanism may not result in placements that violate the requirements of paragraph (a) of this section.
(2) If the State does not have policies and procedures to ensure compliance with paragraph (b)(1) of this section, the State must provide the Secretary an assurance that the State will revise the funding mechanism as soon as feasible to ensure that the mechanism does not result in placements that violate that paragraph.
(Authority: 20 U.S.C. 1412(a)(5))
§ 300.131 [Reserved]
§ 300.132 Transition of children from Part C to preschool programs.
The State must have on file with the Secretary policies and procedures to ensure that—
(a) Children participating in early-intervention programs assisted under Part C of the Act, and who will participate in preschool programs assisted under Part B of the Act, experience a smooth and effective transition to those preschool programs in a manner consistent with section 637(a)(8) of the Act;
(b) By the third birthday of a child described in paragraph (a) of this section, an IEP or, if consistent with §300.342(c) and section 636(d) of the Act, an IFSP, has been developed and is being implemented for the child consistent with §300.121(c); and
(c) Each LEA will participate in transition planning conferences arranged by the designated lead agency under section 637(a)(8) of the Act.
(Authority: 20 U.S.C. 1412(a)(9))
§ 300.133 Children in private schools.
The State must have on file with the Secretary policies and procedures that ensure that the requirements of §§300.400–300.403 and §§300.450–300.462 are met.
(Authority: 20 U.S.C. 1413(a)(4))
§ 300.134 [Reserved]
§ 300.135 Comprehensive system of personnel development.
(a) General. The State must have in effect, consistent with the purposes of this part and with section 635(a)(8) of the Act, a comprehensive system of personnel development that—
(1) Is designed to ensure an adequate supply of qualified special education, regular education, and related services personnel; and
(2) Meets the requirements for a State improvement plan relating to personnel development in section 653(b)(2)(B) and (c)(3)(D) of the Act.
(b) Information. The State must have on file with the Secretary information that shows that the requirements of paragraph (a) of this section are met.
(Authority: 20 U.S.C. 1412(a)(14))
§ 300.136 Personnel standards.
(a) Definitions. As used in this part—
(1) Appropriate professional requirements in the State means entry level requirements that—
(i) Are based on the highest requirements in the State applicable to the profession or discipline in which a person is providing special education or related services; and
(ii) Establish suitable qualifications for personnel providing special education and related services under Part B of the Act to children with disabilities who are served by State, local, and private agencies (see §300.2);
(2) Highest requirements in the State applicable to a specific profession or discipline means the highest entry-level academic degree needed for any State-approved or -recognized certification, licensing, registration, or other comparable requirements that apply to that profession or discipline;
(3) Profession or discipline means a specific occupational category that—
(i) Provides special education and related services to children with disabilities under Part B of the Act;
(ii) Has been established or designated by the State;
(iii) Has a required scope of responsibility and degree of supervision; and
(iv) Is not limited to traditional occupational categories; and
(4) State-approved or -recognized certification, licensing, registration, or other comparable requirements means the requirements that a State legislature either has enacted or has authorized a State agency to promulgate through rules to establish the entry-level standards for employment in a specific profession or discipline in that State.
(b) Policies and procedures. (1)(i) The State must have on file with the Secretary policies and procedures relating to the establishment and maintenance of standards to ensure that personnel necessary to carry out the purposes of this part are appropriately and adequately prepared and trained.
(ii) The policies and procedures required in paragraph (b)(1)(i) of this section must provide for the establishment and maintenance of standards that are consistent with any State-approved or -recognized certification, licensing, registration, or other comparable requirements that apply to the profession or discipline in which a person is providing special education or related services.
(2) Each State may—
(i) Determine the specific occupational categories required to provide special education and related services within the State; and
(ii) Revise or expand those categories as needed.
(3) Nothing in this part requires a State to establish a specified training standard (e.g., a masters degree) for personnel who provide special education and related services under Part B of the Act.
(4) 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 children with disabilities in the State without violating the requirements of this section.
(c) Steps for retraining or hiring personnel. To the extent that a State's standards for a profession or discipline, including standards for temporary or emergency certification, are not based on the highest requirements in the State applicable to a specific profession or discipline, the State must provide the steps the State is taking and the procedures for notifying public agencies and personnel of those steps and the timelines it has established for the retraining or hiring of personnel to meet appropriate professional requirements in the State.
(d) Status of personnel standards in the State. (1) In meeting the requirements in paragraphs (b) and (c) of this section, a determination must be made about the status of personnel standards in the State. That determination must be based on current information that accurately describes, for each profession or discipline in which personnel are providing special education or related services, whether the applicable standards are consistent with the highest requirements in the State for that profession or discipline.
(2) The information required in paragraph (d)(1) of this section must be on file in the SEA and available to the public.
(e) Applicability of State statutes and agency rules. In identifying the highest requirements in the State for purposes of this section, the requirements of all State statutes and the rules of all State agencies applicable to serving children with disabilities must be considered.
(f) Use of paraprofessionals and assistants. A State may allow paraprofessionals and assistants who are appropriately trained and supervised, in accordance with State law, regulations, or written policy, in meeting the requirements of this part to be used to assist in the provision of special education and related services to children with disabilities under Part B of the Act.
(g) Policy to address shortage of personnel. (1) In implementing this section, a State may adopt a policy that includes a requirement that LEAs in the State make an ongoing good faith effort to recruit and hire appropriately and adequately trained personnel to provide special education and related services to children with disabilities, including, in a geographic area of the State where there is a shortage of personnel that meet these qualifications, the most qualified individuals available who are making satisfactory progress toward completing applicable course work necessary to meet the standards described in paragraph (b)(2) of this section, consistent with State law and the steps described in paragraph (c) of this section, within three years.
(2) If a State has reached its established date under paragraph (c) of this section, the State may still exercise the option under paragraph (g)(1) of this section for training or hiring all personnel in a specific profession or discipline to meet appropriate professional requirements in the State.
(3)(i) Each State must have a mechanism for serving children with disabilities if instructional needs exceed available personnel who meet appropriate professional requirements in the State for a specific profession or discipline.
(ii) A State that continues to experience shortages of qualified personnel must address those shortages in its comprehensive system of personnel development under §300.135.
(Authority: 20 U.S.C. 1412(a)(15))
§ 300.137 Performance goals and indicators.
The State must have on file with the Secretary information to demonstrate that the State—
(a) Has established goals for the performance of children with disabilities in the State that—
(1) Will promote the purposes of this part, as stated in §300.1; and
(2) Are consistent, to the maximum extent appropriate, with other goals and standards for all children established by the State;
(b) Has established performance indicators that the State will use to assess progress toward achieving those goals that, at a minimum, address the performance of children with disabilities on assessments, drop-out rates, and graduation rates;
(c) Every two years, will report to the Secretary and the public on the progress of the State, and of children with disabilities in the State, toward meeting the goals established under paragraph (a) of this section; and
(d) Based on its assessment of that progress, will revise its State improvement plan under subpart 1 of Part D of the Act as may be needed to improve its performance, if the State receives assistance under that subpart.
(Authority: 20 U.S.C. 1412(a)(16))
§ 300.138 Participation in assessments.
The State must have on file with the Secretary information to demonstrate that—
(a) Children with disabilities are included in general State and district-wide assessment programs, with appropriate accommodations and modifications in administration, if necessary;
(b) As appropriate, the State or LEA—
(1) Develops guidelines for the participation of children with disabilities in alternate assessments for those children who cannot participate in State and district-wide assessment programs;
(2) Develops alternate assessments in accordance with paragraph (b)(1) of this section; and
(3) Beginning not later than, July 1, 2000, conducts the alternate assessments described in paragraph (b)(2) of this section.
(Authority: 20 U.S.C. 1412(a)(17)(A))
§ 300.139 Reports relating to assessments.
(a) General. In implementing the requirements of §300.138, the SEA shall make available to the public, and report to the public with the same frequency and in the same detail as it reports on the assessment of nondisabled children, the following information:
(1) The number of children with disabilities participating—
(i) In regular assessments; and
(ii) In alternate assessments.
(2) The performance results of the children described in paragraph (a)(1) of this section if doing so would be statistically sound and would not result in the disclosure of performance results identifiable to individual children—
(i) On regular assessments (beginning not later than July 1, 1998); and
(ii) On alternate assessments (not later than July 1, 2000).
(b) Combined reports. Reports to the public under paragraph (a) of this section must include—
(1) Aggregated data that include the performance of children with disabilities together with all other children; and
(2) Disaggregated data on the performance of children with disabilities.
(c) Timeline for disaggregation of data. Data relating to the performance of children described under paragraph (a)(2) of this section must be disaggregated—
(1) For assessments conducted after July 1, 1998; and
(2) For assessments conducted before July 1, 1998, if the State is required to disaggregate the data prior to July 1, 1998.
(Authority: 20 U.S.C. 612(a)(17)(B))
§ 300.140 [Reserved]
§ 300.141 SEA responsibility for general supervision.
(a) The State must have on file with the Secretary information that shows that the requirements of §300.600 are met.
(b) The information described under paragraph (a) of this section must include a copy of each State statute, State regulation, signed agreement between respective agency officials, and any other documents that show compliance with that paragraph.
(Authority: 20 U.S.C. 1412(a)(11))
§ 300.142 Methods of ensuring services.
(a) Establishing responsibility for services. The Chief Executive Officer or designee of that officer shall ensure that an interagency agreement or other mechanism for interagency coordination is in effect between each noneducational public agency described in paragraph (b) of this section and the SEA, in order to ensure that all services described in paragraph (b)(1) of this section that are needed to ensure FAPE are provided, including the provision of these services during the pendency of any dispute under paragraph (a)(3) of this section. The agreement or mechanism must include the following:
(1) Agency financial responsibility. An identification of, or a method for defining, the financial responsibility of each agency for providing services described in paragraph (b)(1) of this section to ensure FAPE to children with disabilities. The financial responsibility of each noneducational public agency described in paragraph (b) of this section, including the State Medicaid agency and other public insurers of children with disabilities, must precede the financial responsibility of the LEA (or the State agency responsible for developing the child's IEP).
(2) Conditions and terms of reimbursement. The conditions, terms, and procedures under which an LEA must be reimbursed by other agencies.
(3) Interagency disputes. Procedures for resolving interagency disputes (including procedures under which LEAs may initiate proceedings) under the agreement or other mechanism to secure reimbursement from other agencies or otherwise implement the provisions of the agreement or mechanism.
(4) Coordination of services procedures. Policies and procedures for agencies to determine and identify the interagency coordination responsibilities of each agency to promote the coordination and timely and appropriate delivery of services described in paragraph (b)(1) of this section.
(b) Obligation of noneducational public agencies—(1) General. (i) If any public agency other than an educational agency is otherwise obligated under Federal or State law, or assigned responsibility under State policy or pursuant to paragraph (a) of this section, to provide or pay for any services that are also considered special education or related services (such as, but not limited to, services described in §300.5 relating to assistive technology devices, §300.6 relating to assistive technology services, §300.24 relating to related services, §300.28 relating to supplementary aids and services, and §300.29 relating to transition services) that are necessary for ensuring FAPE to children with disabilities within the State, the public agency shall fulfill that obligation or responsibility, either directly or through contract or other arrangement.
(ii) A noneducational public agency described in paragraph (b)(1)(i) of this section may not disqualify an eligible service for Medicaid reimbursement because that service is provided in a school context.
(2) Reimbursement for services by noneducational public agency. If a public agency other than an educational agency fails to provide or pay for the special education and related services described in paragraph (b)(1) of this section, the LEA (or State agency responsible for developing the child's IEP) shall provide or pay for these services to the child in a timely manner. The LEA or State agency may then claim reimbursement for the services from the noneducational public agency that failed to provide or pay for these services and that agency shall reimburse the LEA or State agency in accordance with the terms of the interagency agreement or other mechanism described in paragraph (a)(1) of this section, and the agreement described in paragraph (a)(2) of this section.
(c) Special rule. The requirements of paragraph (a) of this section may be met through—
(1) State statute or regulation;
(2) Signed agreements between respective agency officials that clearly identify the responsibilities of each agency relating to the provision of services; or
(3) Other appropriate written methods as determined by the Chief Executive Officer of the State or designee of that officer.
(d) Information. The State must have on file with the Secretary information to demonstrate that the requirements of paragraphs (a) through (c) of this section are met.
(e) Children with disabilities who are covered by public insurance. (1) A public agency may use the Medicaid or other public insurance benefits programs in which a child participates to provide or pay for services required under this part, as permitted under the public insurance program, except as provided in paragraph (e)(2) of this section.
(2) With regard to services required to provide FAPE to an eligible child under this part, the public agency—
(i) May not require parents to sign up for or enroll in public insurance programs in order for their child to receive FAPE under Part B of the Act;
(ii) May not require parents to incur an out-of-pocket expense such as the payment of a deductible or co-pay amount incurred in filing a claim for services provided pursuant to this part, but pursuant to paragraph (g)(2) of this section, may pay the cost that the parent otherwise would be required to pay; and
(iii) May not use a child's benefits under a public insurance program if that use would—
(A) Decrease available lifetime coverage or any other insured benefit;
(B) Result in the family paying for services that would otherwise be covered by the public insurance program and that are required for the child outside of the time the child is in school;
(C) Increase premiums or lead to the discontinuation of insurance; or
(D) Risk loss of eligibility for home and community-based waivers, based on aggregate health-related expenditures.
(f) Children with disabilities who are covered by private insurance. (1) With regard to services required to provide FAPE to an eligible child under this part, a public agency may access a parent's private insurance proceeds only if the parent provides informed consent consistent with §300.500(b)(1).
(2) Each time the public agency proposes to access the parent's private insurance proceeds, it must—
(i) Obtain parent consent in accordance with paragraph (f)(1) of this section; and
(ii) Inform the parents that their refusal to permit the public agency to access their private insurance does not relieve the public agency of its responsibility to ensure that all required services are provided at no cost to the parents.
(g) Use of Part B funds. (1) If a public agency is unable to obtain parental consent to use the parent's private insurance, or public insurance when the parent would incur a cost for a specified service required under this part, to ensure FAPE the public agency may use its Part B funds to pay for the service.
(2) To avoid financial cost to parents who otherwise would consent to use private insurance, or public insurance if the parent would incur a cost, the public agency may use its Part B funds to pay the cost the parents otherwise would have to pay to use the parent's insurance (e.g., the deductible or co-pay amounts).
(h) Proceeds from public or private insurance. (1) Proceeds from public or private insurance will not be treated as program income for purposes of 34 CFR 80.25.
(2) If a public agency spends reimbursements from Federal funds (e.g., Medicaid) for services under this part, those funds will not be considered “State or local” funds for purposes of the maintenance of effort provisions in §§300.154 and 300.231.
(i) Construction. Nothing in this part 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.
(Authority: 20 U.S.C. 1412(a)(12)(A), (B), and (C); 1401(8))
§ 300.143 SEA implementation of procedural safeguards.
The State must have on file with the Secretary the procedures that the SEA (and any agency assigned responsibility pursuant to §300.600(d)) follows to inform each public agency of its responsibility for ensuring effective implementation of procedural safeguards for the children with disabilities served by that public agency.
(Authority: 20 U.S.C. 1412(a)(11); 1415(a))
§ 300.144 Hearings relating to LEA eligibility.
The State must have on file with the Secretary procedures to ensure that the SEA does not make any final determination that an LEA is not eligible for assistance under Part B of the Act without first giving the LEA reasonable notice and an opportunity for a hearing under 34 CFR 76.401(d).
(Authority: 20 U.S.C. 1412(a)(13))
§ 300.145 Recovery of funds for misclassified children.
The State must have on file with the Secretary policies and procedures that ensure that the State seeks to recover any funds provided under Part B of the Act for services to a child who is determined to be erroneously classified as eligible to be counted under section 611(a) or (d) of the Act.
(Authority: 20 U.S.C. 1221e–3(a)(1))
§ 300.146 Suspension and expulsion rates.
The State must have on file with the Secretary information to demonstrate that the following requirements are met:
(a) General. The SEA examines data to determine if significant discrepancies are occurring in the rate of long-term suspensions and expulsions of children with disabilities—
(1) Among LEAs in the State; or
(2) Compared to the rates for nondisabled children within the agencies.
(b) Review and revision of policies. If the discrepancies described in paragraph (a) of this section are occurring, the SEA reviews and, if appropriate, revises (or requires the affected State agency or LEA to revise) its policies, procedures, and practices relating to the development and implementation of IEPs, the use of behavioral interventions, and procedural safeguards, to ensure that these policies, procedures, and practices comply with the Act.
(Authority: 20 U.S.C. 612(a)(22))
§ 300.147 Additional information if SEA provides direct services.
(a) If the SEA provides FAPE to children with disabilities, or provides direct services to these children, the agency—
(1) Shall comply with any additional requirements of §§300.220–300.230(a) and 300.234–300.250 as if the agency were an LEA; and
(2) May use amounts that are otherwise available to the agency under Part B of the Act to serve those children without regard to §300.184 (relating to excess costs).
(b) The SEA must have on file with the Secretary information to demonstrate that it meets the requirements of paragraph (a)(1) of this section.
(Authority: 20 U.S.C. 1412(b))
§ 300.148 Public participation.
(a) General; exception. (1) Subject to paragraph (a)(2) of this section, each State must ensure that, prior to the adoption of any policies and procedures needed to comply with this part, there are public hearings, adequate notice of the hearings, and an opportunity for comment available to the general public, including individuals with disabilities and parents of children with disabilities consistent with §§300.280–300.284.
(2) A State will be considered to have met paragraph (a)(1) of this section with regard to a policy or procedure needed to comply with this part if it can demonstrate that prior to the adoption of that policy or procedure, the policy or procedure was subjected to a public review and comment process that is required by the State for other purposes and is comparable to and consistent with the requirements of §§300.280–300.284.
(b) Documentation. The State must have on file with the Secretary information to demonstrate that the requirements of paragraph (a) of this section are met.
(Authority: 20 U.S.C. 1412(a)(20))
§ 300.149 [Reserved]
§ 300.150 State advisory panel.
The State must have on file with the Secretary information to demonstrate that the State has established and maintains an advisory panel for the purpose of providing policy guidance with respect to special education and related services for children with disabilities in the State in accordance with the requirements of §§300.650–300.653.
(Authority: 20 U.S.C. 1412(a)(21)(A))
§ 300.151 [Reserved]
§ 300.152 Prohibition against commingling.
(a) The State must have on file with the Secretary an assurance satisfactory to the Secretary that the funds under Part B of the Act are not commingled with State funds.
(b) The assurance in paragraph (a) of this section is satisfied by the use of a separate accounting system that includes an audit trail of the expenditure of the Part B funds. Separate bank accounts are not required. (See 34 CFR 76.702 (Fiscal control and fund accounting procedures).)
(Authority: 20 U.S.C. 1412(a)(18)(B))
§ 300.153 State-level nonsupplanting.
(a) General. (1) Except as provided in §300.230, funds paid to a State under Part B of the Act must be used to supplement the level of Federal, State, and local funds (including funds that are not under the direct control of the SEA or LEAs) expended for special education and related services provided to children with disabilities under Part B of the Act and in no case to supplant these Federal, State, and local funds.
(2) The State must have on file with the Secretary information to demonstrate to the satisfaction of the Secretary that the requirements of paragraph (a)(1) of this section are met.
(b) Waiver. If the State provides clear and convincing evidence that all children with disabilities have available to them FAPE, the Secretary may waive, in whole or in part, the requirements of paragraph (a) of this section if the Secretary concurs with the evidence provided by the State under §300.589.
(Authority: 20 U.S.C. 1412(a)(18)(c))
§ 300.154 Maintenance of State financial support.
(a) General. The State must have on file with the Secretary information to demonstrate, on either a total or per-capita basis, that the State will not reduce the amount of State financial support for special education and related services for children with disabilities, or otherwise made available because of the excess costs of educating those children, below the amount of that support for the preceding fiscal year.
(b) Reduction of funds for failure to maintain support. The Secretary reduces the allocation of funds under section 611 of the Act for any fiscal year following the fiscal year in which the State fails to comply with the requirement of paragraph (a) of this section by the same amount by which the State fails to meet the requirement.
(c) Waivers for exceptional or uncontrollable circumstances. The Secretary may waive the requirement of paragraph (a) of this section for a State, for one fiscal year at a time, if the Secretary determines that—
(1) Granting a waiver would be equitable due to exceptional or uncontrollable circumstances such as a natural disaster or a precipitous and unforeseen decline in the financial resources of the State; or
(2) The State meets the standard in §300.589 for a waiver of the requirement to supplement, and not to supplant, funds received under Part B of the Act.
(d) Subsequent years. If, for any fiscal year, a State fails to meet the requirement of paragraph (a) of this section, including any year for which the State is granted a waiver under paragraph (c) of this section, the financial support required of the State in future years under paragraph (a) of this section must be the amount that would have been required in the absence of that failure and not the reduced level of the State's support.
(Authority: 20 U.S.C. 1412(a)(19))
§ 300.155 Policies and procedures for use of Part B funds.
The State must have on file with the Secretary policies and procedures designed to ensure that funds paid to the State under Part B of the Act are spent in accordance with the provisions of Part B.
(Authority: 20 U.S.C. 1412(a)(18)(A))
§ 300.156 Annual description of use of Part B funds.
(a) In order to receive a grant in any fiscal year a State must annually describe—
(1) How amounts retained for State-level activities under §300.602 will be used to meet the requirements of this part;
(2) How those amounts will be allocated among the activities described in §§300.621 and 300.370 to meet State priorities based on input from LEAs; and
(3) The percentage of those amounts, if any, that will be distributed to LEAs by formula.
(b) If a State's plans for use of its funds under §§300.370 and 300.620 for the forthcoming year do not change from the prior year, the State may submit a letter to that effect to meet the requirement in paragraph (a) of this section.
(Authority: 20 U.S.C. 1411(f)(5))
LEA and State Agency Eeligibility—General
§ 300.180 Condition of assistance.
An LEA or State agency is eligible for assistance under Part B of the Act for a fiscal year if the agency demonstrates to the satisfaction of the SEA that it meets the conditions in §§300.220–300.250.
(Authority: 20 U.S.C. 1413(a))
§ 300.181 Exception for prior LEA or State agency policies and procedures on file with the SEA.
If an LEA or a State agency described in §300.194 has on file with the SEA policies and procedures that demonstrate that the LEA or State agency meets any requirement of §300.180, including any policies and procedures filed under Part B of the Act as in effect before June 4, 1997, the SEA shall consider the LEA or State agency to have met the requirement for purposes of receiving assistance under Part B of the Act.
(Authority: 20 U.S.C. 1413(b)(1))
§ 300.182 Amendments to LEA policies and procedures.
(a) Modification made by an LEA or a State agency. (1) Subject to paragraph (b) of this section, policies and procedures submitted by an LEA or a State agency in accordance with this subpart remain in effect until it submits to the SEA the modifications that the LEA or State agency decides are necessary.
(2) The provisions of this subpart apply to a modification to an LEA's or State agency's policies and procedures in the same manner and to the same extent that they apply to the LEA's or State agency's original policies and procedures.
(b) Modifications required by the SEA. The SEA may require an LEA or a State agency to modify its policies and procedures, but only to the extent necessary to ensure the LEA's or State agency's compliance with this part, if—
(1) After June 4, 1997, the provisions of the Act or the regulations in this part are amended;
(2) There is a new interpretation of the Act by Federal or State courts; or
(3) There is an official finding of noncompliance with Federal or State law or regulations.
(Authority: 20 U.S.C. 1413(b))
§ 300.183 [Reserved]
§ 300.184 Excess cost requirement.
(a) General. Amounts provided to an LEA under Part B of the Act may be used only to pay the excess costs of providing special education and related services to children with disabilities.
(b) Definition. As used in this part, the term excess costs means those costs that are in excess of the average annual per-student expenditure in an LEA during the preceding school year for an elementary or secondary school student, as may be appropriate. Excess costs must be computed after deducting—
(1) Amounts received—
(i) Under Part B of the Act;
(ii) Under Part A of title I of the Elementary and Secondary Education Act of 1965; or
(iii) Under Part A of title VII of that Act; and
(2) Any State or local funds expended for programs that would qualify for assistance under any of those parts.
(c) LLimitation on use of Part B funds. (1) The excess cost requirement prevents an LEA from using funds provided under Part B of the Act to pay for all of the costs directly attributable to the education of a child with a disability, subject to paragraph (c)(2) of this section.
(2) The excess cost requirement does not prevent an LEA from using Part B funds to pay for all of the costs directly attributable to the education of a child with a disability in any of the ages 3, 4, 5, 18, 19, 20, or 21, if no local or State funds are available for nondisabled children in that age range. However, the LEA must comply with the nonsupplanting and other requirements of this part in providing the education and services for these children.
(Authority: 20 U.S.C. 1401(7), 1413(a)(2)(A))
§ 300.185 Meeting the excess cost requirement.
(a)(1) General. An LEA meets the excess cost requirement if it has spent at least a minimum average amount for the education of its children with disabilities before funds under Part B of the Act are used.
(2) The amount described in paragraph (a)(1) of this section is determined using the formula in §300.184(b). This amount may not include capital outlay or debt service.
(b) Joint establishment of eligibility. If two or more LEAs jointly establish eligibility in accordance with §300.190, the minimum average amount is the average of the combined minimum average amounts determined under §300.184 in those agencies for elementary or secondary school students, as the case may be.
(Authority: 20 U.S.C. 1413(a)(2)(A))
§§ 300.186-300.189 [Reserved]
§ 300.190 Joint establishment of eligibility.
(a) General. An SEA may require an LEA to establish its eligibility jointly with another LEA if the SEA determines that the LEA would be ineligible under this section because the agency would not be able to establish and maintain programs of sufficient size and scope to effectively meet the needs of children with disabilities.
(b) Charter school exception. An SEA may not require a charter school that is an LEA to jointly establish its eligibility under paragraph (a) of this section unless it is explicitly permitted to do so under the State's charter school statute.
(c) Amount of payments. If an SEA requires the joint establishment of eligibility under paragraph (a) of this section, the total amount of funds made available to the affected LEAs must be equal to the sum of the payments that each LEA would have received under §§300.711–300.714 if the agencies were eligible for these payments.
(Authority: 20 U.S.C. 1413(e)(1), and (2))
§ 300.191 [Reserved]
§ 300.192 Requirements for establishing eligibility.
(a) Requirements for LEAs in general. LEAs that establish joint eligibility under this section must—
(1) Adopt policies and procedures that are consistent with the State's policies and procedures under §§300.121–300.156; and
(2) Be jointly responsible for implementing programs that receive assistance under Part B of the Act.
(b) Requirements for educational service agencies in general. If an educational service agency is required by State law to carry out programs under Part B of the Act, the joint responsibilities given to LEAs under Part B of the Act—
(1) Do not apply to the administration and disbursement of any payments received by that educational service agency; and
(2) Must be carried out only by that educational service agency.
(c) Additional requirement. Notwithstanding any other provision of §§300.190–300.192, an educational service agency shall provide for the education of children with disabilities in the least restrictive environment, as required by §300.130.
(Authority: 20 U.S.C. 1413(e)(3), and (4))
§ 300.193 [Reserved]
§ 300.194 State agency eligibility.
Any State agency that desires to receive a subgrant for any fiscal year under §§300.711–300.714 must demonstrate to the satisfaction of the SEA that—
(a) All children with disabilities who are participating in programs and projects funded under Part B of the Act receive FAPE, and that those children and their parents are provided all the rights and procedural safeguards described in this part; and
(b) The agency meets the other conditions of this subpart that apply to LEAs.
(Authority: 20 U.S.C. 1413(i))
§ 300.195 [Reserved]
§ 300.196 Notification of LEA or State agency in case of ineligibility.
If the SEA determines that an LEA or State agency is not eligible under Part B of the Act, the SEA shall—
(a) Notify the LEA or State agency of that determination; and
(b) Provide the LEA or State agency with reasonable notice and an opportunity for a hearing.
(Authority: 20 U.S.C. 1413(c))
§ 300.197 LEA and State agency compliance.
(a) General. If the SEA, after reasonable notice and an opportunity for a hearing, finds that an LEA or State agency that has been determined to be eligible under this section is failing to comply with any requirement described in §§300.220–300.250, the SEA shall reduce or may not provide any further payments to the LEA or State agency until the SEA is satisfied that the LEA or State agency is complying with that requirement.
(b) Notice requirement. Any State agency or LEA in receipt of a notice described in paragraph (a) of this section shall, by means of public notice, take the measures necessary to bring the pendency of an action pursuant to this section to the attention of the public within the jurisdiction of the agency.
(c) In carrying out its functions under this section, each SEA shall consider any decision resulting from a hearing under §§300.507–300.528 that is adverse to the LEA or State agency involved in the decision.
(Authority: 20 U.S.C. 1413(d))
LEA and State Agency Eligibility—Specific Conditions
§ 300.220 Consistency with State policies.
(a) General. The LEA, in providing for the education of children with disabilities within its jurisdiction, must have in effect policies, procedures, and programs that are consistent with the State policies and procedures established under §§300.121–300.156.
(b) Policies on file with SEA. The LEA must have on file with the SEA the policies and procedures described in paragraph (a) of this section.
(Authority: 20 U.S.C. 1413(a)(1))
§ 300.221 Implementation of CSPD.
The LEA must have on file with the SEA information to demonstrate that—
(a) All personnel necessary to carry out Part B of the Act within the jurisdiction of the agency are appropriately and adequately prepared, consistent with the requirements of §§300.380–300.382; and
(b) To the extent the LEA determines appropriate, it shall contribute to and use the comprehensive system of personnel development of the State established under §300.135.
(Authority: 20 U.S.C. 1413(a)(3))
§§ 300.222-300.229 [Reserved]
§ 300.230 Use of amounts.
The LEA must have on file with the SEA information to demonstrate that amounts provided to the LEA under Part B of the Act—
(a) Will be expended in accordance with the applicable provisions of this part;
(b) Will be used only to pay the excess costs of providing special education and related services to children with disabilities, consistent with §§300.184–300.185; and
(c) Will be used to supplement State, local, and other Federal funds and not to supplant those funds.
(Authority: 20 U.S.C. 1413(a)(2)(A))
§ 300.231 Maintenance of effort.
(a) General. Except as provided in §§300.232 and 300.233, funds provided to an LEA under Part B of the Act may not be used to reduce the level of expenditures for the education of children with disabilities made by the LEA from local funds below the level of those expenditures for the preceding fiscal year.
(b) Information. The LEA must have on file with the SEA information to demonstrate that the requirements of paragraph (a) of this section are met.
(c) Standard. (1) Except as provided in paragraph (c)(2) of this section, the SEA determines that an LEA complies with paragraph (a) of this section for purposes of establishing the LEA's eligibility for an award for a fiscal year if the LEA budgets, for the education of children with disabilities, at least the same total or per-capita amount from either of the following sources as the LEA spent for that purpose from the same source for the most recent prior year for which information is available:
(i) Local funds only.
(ii) The combination of State and local funds.
(2) An LEA that relies on paragraph (c)(1)(i) of this section for any fiscal year must ensure that the amount of local funds it budgets for the education of children with disabilities in that year is at least the same, either in total or per capita, as the amount it spent for that purpose in—
(i) The most recent fiscal year for which information is available, if that year is, or is before, the first fiscal year beginning on or after July 1, 1997; or
(ii) If later, the most recent fiscal year for which information is available and the standard in paragraph (c)(1)(i) of this section was used to establish its compliance with this section.
(3) The SEA may not consider any expenditures made from funds provided by the Federal Government for which the SEA is required to account to the Federal Government or for which the LEA is required to account to the Federal Government directly or through the SEA in determining an LEA's compliance with the requirement in paragraph (a) of this section.
(Authority: 20 U.S.C. 1413(a)(2)(A))
§ 300.232 Exception to maintenance of effort.
An LEA may reduce the level of expenditures by the LEA under Part B of the Act below the level of those expenditures for the preceding fiscal year if the reduction is attributable to the following:
(a)(1) The voluntary departure, by retirement or otherwise, or departure for just cause, of special education or related services personnel, who are replaced by qualified, lower-salaried staff.
(2) In order for an LEA to invoke the exception in paragraph (a)(1) of this section, the LEA must ensure that those voluntary retirements or resignations and replacements are in full conformity with:
(i) Existing school board policies in the agency;
(ii) The applicable collective bargaining agreement in effect at that time; and
(iii) Applicable State statutes.
(b) A decrease in the enrollment of children with disabilities.
(c) The termination of the obligation of the agency, consistent with this part, to provide a program of special education to a particular child with a disability that is an exceptionally costly program, as determined by the SEA, because the child—
(1) Has left the jurisdiction of the agency;
(2) Has reached the age at which the obligation of the agency to provide FAPE to the child has terminated; or
(3) No longer needs the program of special education.
(d) The termination of costly expenditures for long-term purchases, such as the acquisition of equipment or the construction of school facilities.
(Authority: 20 U.S.C. 1413(a)(2)(B))
§ 300.233 Treatment of Federal funds in certain fiscal years.
(a)(1) Subject to paragraphs (a)(2), (a)(3), and (b) of this section, for any fiscal year for which amounts appropriated to carry out section 611 of the Act exceed $4.1 billion, an LEA may treat as local funds up to 20 percent of the amount of funds it is eligible to receive under §300.712 from that appropriation that exceeds the amount from funds appropriated for the previous fiscal year that the LEA was eligible to receive under §300.712.
(2) The requirements of §§300.230(c) and 300.231 do not apply with respect to the amount that may be treated as local funds under paragraph (a)(1) of this section.
(3) For purposes of this section:
(i)(A) An LEA is not eligible to receive funds during any period in which those funds under this part are withheld from the LEA because of a finding of noncompliance under §300.197 or §300.587.
(B) An LEA is eligible to receive funds that have been withheld under §300.197 or §300.587 but are subsequently released to the LEA within the period of the funds availability.
(ii) An LEA is not eligible to receive funds that have been reallocated to other LEAs under §300.714.
(b) If an SEA determines that an LEA is not meeting the requirements of this part, the SEA may prohibit the LEA from treating funds received under Part B of the Act as local funds under paragraph (a)(1) of this section for any fiscal year, but only if it is authorized to do so by the State constitution or a State statute.
(Authority: 20 U.S.C. 1413(a)(2)(C))
[64 FR 12418, Mar. 12, 1999, as amended at 66 FR 1476, Jan. 8, 2001]
§ 300.234 Schoolwide programs under title I of the ESEA.
(a) General; limitation on amount of Part B funds used. An LEA may use funds received under Part B of the Act for any fiscal year to carry out a schoolwide program under section 1114 of the Elementary and Secondary Education Act of 1965, except that the amount used in any schoolwide program may not exceed—
(1)(i) The amount received by the LEA under Part B for that fiscal year; divided by
(ii) The number of children with disabilities in the jurisdiction of the LEA; and multiplied by
(2) The number of children with disabilities participating in the schoolwide program.
(b) Funding conditions. The funds described in paragraph (a) of this section are subject to the following conditions:
(1) The funds must be considered as Federal Part B funds for purposes of the calculations required by §§300.230(b) and (c).
(2) The funds may be used without regard to the requirements of §300.230(a).
(c) Meeting other Part B requirements. Except as provided in paragraph (b) of this section, all other requirements of Part B must be met by an LEA using Part B funds in accordance with paragraph (a) of this section, including ensuring that children with disabilities in schoolwide program schools—
(1) Receive services in accordance with a properly developed IEP; and
(2) Are afforded all of the rights and services guaranteed to children with disabilities under the IDEA.
(Authority: 20 U.S.C. 1413(a)(2)(D))
§ 300.235 Permissive use of funds.
(a) General. Subject to paragraph (b) of this section, funds provided to an LEA under Part B of the Act may be used for the following activities:
(1) Services and aids that also benefit nondisabled children. For the costs of special education and related services and supplementary aids and services provided in a regular class or other education-related setting to a child with a disability in accordance with the IEP of the child, even if one or more nondisabled children benefit from these services.
(2) Integrated and coordinated services system. To develop and implement a fully integrated and coordinated services system in accordance with §300.244.
(b) Non-applicability of certain provisions. An LEA does not violate §§300.152, 300.230, and 300.231 based on its use of funds provided under Part B of the Act in accordance with paragraphs (a)(1) and (a)(2) of this section.
(Authority: 20 U.S.C. 1413(a)(4))
§§ 300.236-300.239 [Reserved]
§ 300.240 Information for SEA.
(a) The LEA shall provide the SEA with information necessary to enable the SEA to carry out its duties under Part B of the Act, including, with respect to §§300.137 and 300.138, information relating to the performance of children with disabilities participating in programs carried out under Part B of the Act.
(b) The LEA must have on file with the SEA an assurance satisfactory to the SEA that the LEA will comply with the requirements of paragraph (a) of this section.
(Authority: 20 U.S.C. 1413(a)(6))
§ 300.241 Treatment of charter schools and their students.
The LEA must have on file with the SEA information to demonstrate that in carrying out this part with respect to charter schools that are public schools of the LEA, the LEA will—
(a) Serve children with disabilities attending those schools in the same manner as it serves children with disabilities in its other schools; and
(b) Provide funds under Part B of the Act to those schools in the same manner as it provides those funds to its other schools.
(Authority: 20 U.S.C. 1413(a)(5))
§ 300.242 Public information.
The LEA must have on file with the SEA information to demonstrate to the satisfaction of the SEA that it will make available to parents of children with disabilities and to the general public all documents relating to the eligibility of the agency under Part B of the Act.
(Authority: 20 U.S.C. 1413(a)(7))
§ 300.243 [Reserved]
§ 300.244 Coordinated services system.
(a) General. An LEA may not use more than 5 percent of the amount the agency receives under Part B of the Act for any fiscal year, in combination with other amounts (which must include amounts other than education funds), to develop and implement a coordinated services system designed to improve results for children and families, including children with disabilities and their families.
(b) Activities. In implementing a coordinated services system under this section, an LEA may carry out activities that include—
(1) Improving the effectiveness and efficiency of service delivery, including developing strategies that promote accountability for results;
(2) Service coordination and case management that facilitate the linkage of IEPs under Part B of the Act and IFSPs under Part C of the Act with individualized service plans under multiple Federal and State programs, such as title I of the Rehabilitation Act of 1973 (vocational rehabilitation), title XIX of the Social Security Act (Medicaid), and title XVI of the Social Security Act (supplemental security income);
(3) Developing and implementing interagency financing strategies for the provision of education, health, mental health, and social services, including transition services and related services under the Act; and
(4) Interagency personnel development for individuals working on coordinated services.
(c) Coordination with certain projects under Elementary and Secondary Education Act of 1965. If an LEA is carrying out a coordinated services project under title XI of the Elementary and Secondary Education Act of 1965 and a coordinated services project under Part B of the Act in the same schools, the agency shall use the amounts under §300.244 in accordance with the requirements of that title.
(Authority: 20 U.S.C. 1413(f))
School-Based Improvement Plan
§ 300.245 School-based improvement plan.
(a) General. Each LEA may, in accordance with paragraph (b) of this section, use funds made available under Part B of the Act to permit a public school within the jurisdiction of the LEA to design, implement, and evaluate a school-based improvement plan that—
(1) Is consistent with the purposes described in section 651(b) of the Act; and
(2) Is designed to improve educational and transitional results for all children with disabilities and, as appropriate, for other children consistent with §300.235(a) and (b) in that public school.
(b) Authority—(1) General. An SEA may grant authority to an LEA to permit a public school described in §300.245 (through a school-based standing panel established under §300.247(b)) to design, implement, and evaluate a school-based improvement plan described in §300.245 for a period not to exceed 3 years.
(2) Responsibility of LEA. If an SEA grants the authority described in paragraph (b)(1) of this section, an LEA that is granted this authority must have the sole responsibility of oversight of all activities relating to the design, implementation, and evaluation of any school-based improvement plan that a public school is permitted to design under this section.
(Authority: 20 U.S.C. 1413(g)(1) and (g)(2)).
§ 300.246 Plan requirements.
A school-based improvement plan described in §300.245 must—
(a) Be designed to be consistent with the purposes described in section 651(b) of the Act and to improve educational and transitional results for all children with disabilities and, as appropriate, for other children consistent with §300.235(a) and (b), who attend the school for which the plan is designed and implemented;
(b) Be designed, evaluated, and, as appropriate, implemented by a school-based standing panel established in accordance with §300.247(b);
(c) Include goals and measurable indicators to assess the progress of the public school in meeting these goals; and
(d) Ensure that all children with disabilities receive the services described in their IEPs.
(Authority: 20 U.S.C. 1413(g)(3))
§ 300.247 Responsibilities of the LEA.
An LEA that is granted authority under §300.245(b) to permit a public school to design, implement, and evaluate a school-based improvement plan shall—
(a) Select each school under the jurisdiction of the agency that is eligible to design, implement, and evaluate the plan;
(b) Require each school selected under paragraph (a) of this section, in accordance with criteria established by the LEA under paragraph (c) of this section, to establish a school-based standing panel to carry out the duties described in §300.246(b);
(c) Establish—
(1) Criteria that must be used by the LEA in the selection of an eligible school under paragraph (a) of this section;
(2) Criteria that must be used by a public school selected under paragraph (a) of this section in the establishment of a school-based standing panel to carry out the duties described in §300.246(b) and that ensure that the membership of the panel reflects the diversity of the community in which the public school is located and includes, at a minimum—
(i) Parents of children with disabilities who attend a public school, including parents of children with disabilities from unserved and underserved populations, as appropriate;
(ii) Special education and general education teachers of public schools;
(iii) Special education and general education administrators, or the designee of those administrators, of those public schools; and
(iv) Related services providers who are responsible for providing services to the children with disabilities who attend those public schools; and
(3) Criteria that must be used by the LEA with respect to the distribution of funds under Part B of the Act to carry out this section;
(d) Disseminate the criteria established under paragraph (c) of this section to local school district personnel and local parent organizations within the jurisdiction of the LEA;
(e) Require a public school that desires to design, implement, and evaluate a school-based improvement plan to submit an application at the time, in the manner and accompanied by the information, that the LEA shall reasonably require; and
(f) Establish procedures for approval by the LEA of a school-based improvement plan designed under Part B of the Act.
(Authority:1413(g)(4))
§ 300.248 Limitation.
A school-based improvement plan described in §300.245(a) may be submitted to an LEA for approval only if a consensus with respect to any matter relating to the design, implementation, or evaluation of the goals of the plan is reached by the school-based standing panel that designed the plan.
(Authority: 20 U.S.C. 1413(g)(5))
§ 300.249 Additional requirements.
(a) Parental involvement. In carrying out the requirements of §§300.245–300.250, an LEA shall ensure that the parents of children with disabilities are involved in the design, evaluation, and, if appropriate, implementation of school-based improvement plans in accordance with this section.
(b) Plan approval. An LEA may approve a school-based improvement plan of a public school within the jurisdiction of the agency for a period of 3 years, if—
(1) The approval is consistent with the policies, procedures, and practices established by the LEA and in accordance with §§300.245–300.250; and
(2) A majority of parents of children who are members of the school-based standing panel, and a majority of other members of the school-based standing panel that designed the plan, agree in writing to the plan.
(Authority: 20 U.S.C. 1413(g)(6))
§ 300.250 Extension of plan.
If a public school within the jurisdiction of an LEA meets the applicable requirements and criteria described in §§300.246 and 300.247 at the expiration of the 3-year approval period described §300.249(b), the agency may approve a school-based improvement plan of the school for an additional 3-year period.
(Authority: 20 U.S.C. 1413(g)(7))
Secretary of the Interior—Eligibility
§ 300.260 Submission of information.
The Secretary may provide the Secretary of the Interior amounts under §300.715(b) and (c) for a fiscal year only if the Secretary of the Interior submits to the Secretary information that—
(a) Meets the requirements of section 612(a)(1), (3)—(9), (10)(B), (C), (11)—(12), (14)—(17), (20), (21) and (22) of the Act (including monitoring and evaluation activities);
(b) Meets the requirements of section 612(b) and (e) of the Act;
(c) Meets the requirements of section 613(a)(1), (2)(A)(i), (6), and (7) of the Act;
(d) Meets the requirements of this part that implement the sections of the Act listed in paragraphs (a)–(c) of this section;
(e) Includes a description of how the Secretary of the Interior will coordinate the provision of services under Part B of the Act with LEAs, tribes and tribal organizations, and other private and Federal service providers;
(f) Includes an assurance that there are public hearings, adequate notice of the hearings, and an opportunity for comment afforded to members of tribes, tribal governing bodies, and affected local school boards before the adoption of the policies, programs, and procedures described in paragraph (a) of this section;
(g) Includes an assurance that the Secretary of the Interior will provide the information that the Secretary may require to comply with section 618 of the Act, including data on the number of children with disabilities served and the types and amounts of services provided and needed;
(h)(1) Includes an assurance that the Secretary of the Interior and the Secretary of Health and Human Services have entered into a memorandum of agreement, to be provided to the Secretary, for the coordination of services, resources, and personnel between their respective Federal, State, and local offices and with the SEAs and LEAs and other entities to facilitate the provision of services to Indian children with disabilities residing on or near reservations.
(2) The agreement must provide for the apportionment of responsibilities and costs, including child find, evaluation, diagnosis, remediation or therapeutic measures, and (if appropriate) equipment and medical or personal supplies, as needed for a child with a disability to remain in a school or program; and
(i) Includes an assurance that the Department of the Interior will cooperate with the Department in its exercise of monitoring and oversight of the requirements in this section and §§300.261–300.267, and any agreements entered into between the Secretary of the Interior and other entities under Part B of the Act, and will fulfill its duties under Part B of the Act. Section 616(a) of the Act applies to the information described in this section.
(Authority: 20 U.S.C. 1411(i)(2))
§ 300.261 Public participation.
In fulfilling the requirements of §300.260 the Secretary of the Interior shall provide for public participation consistent with §§300.280–300.284.
(Authority: 20 U.S.C. 1411(i))
§ 300.262 Use of Part B funds.
(a) The Department of the Interior may use five percent of its payment under §300.715(b) and (c) in any fiscal year, or $500,000, whichever is greater, for administrative costs in carrying out the provisions of this part.
(b) Payments to the Secretary of the Interior under §300.716 must be used in accordance with that section.
(Authority: 20 U.S.C. 1411(i))
§ 300.263 Plan for coordination of services.
(a) The Secretary of the Interior shall develop and implement a plan for the coordination of services for all Indian children with disabilities residing on reservations covered under Part B of the Act.
(b) The plan must provide for the coordination of services benefiting these children from whatever source, including tribes, the Indian Health Service, other BIA divisions, and other Federal agencies.
(c) In developing the plan, the Secretary of the Interior shall consult with all interested and involved parties.
(d) The plan must be based on the needs of the children and the system best suited for meeting those needs, and may involve the establishment of cooperative agreements between the BIA, other Federal agencies, and other entities.
(e) The plan also must be distributed upon request to States, SEAs and LEAs, and other agencies providing services to infants, toddlers, and children with disabilities, to tribes, and to other interested parties.
(Authority: 20 U.S.C. 1411(i)(4))
§ 300.264 Definitions.
(a) Indian. As used in this part, the term Indian means an individual who is a member of an Indian tribe.
(b) Indian tribe. As used in this part, the term Indian tribe means any Federal or State Indian tribe, band, rancheria, pueblo, colony, or community, including any Alaska Native village or regional village corporation (as defined in or established under the Alaska Native Claims Settlement Act).
(Authority: 20 U.S.C. 1401(9) and (10))
§ 300.265 Establishment of advisory board.
(a) To meet the requirements of section 612(a)(21) of the Act, the Secretary of the Interior shall establish, not later than December 4, 1997 under the BIA, an advisory board composed of individuals involved in or concerned with the education and provision of services to Indian infants, toddlers, and children with disabilities, including Indians with disabilities, Indian parents of the children, teachers, service providers, State and local educational officials, representatives of tribes or tribal organizations, representatives from State Interagency Coordinating Councils under section 641 of the Act in States having reservations, and other members representing the various divisions and entities of the BIA. The chairperson must be selected by the Secretary of the Interior.
(b) The advisory board shall—
(1) Assist in the coordination of services within the BIA and with other local, State, and Federal agencies in the provision of education for infants, toddlers, and children with disabilities;
(2) Advise and assist the Secretary of the Interior in the performance of the Secretary's responsibilities described in section 611(i) of the Act;
(3) Develop and recommend policies concerning effective inter- and intra-agency collaboration, including modifications to regulations, and the elimination of barriers to inter- and intra-agency programs and activities;
(4) Provide assistance and disseminate information on best practices, effective program coordination strategies, and recommendations for improved educational programming for Indian infants, toddlers, and children with disabilities; and
(5) Provide assistance in the preparation of information required under §300.260(g).
(Authority: 20 U.S.C. 1411(i)(5))
§ 300.266 Annual report by advisory board.
(a) General. The advisory board established under §300.265 shall prepare and submit to the Secretary of the Interior and to the Congress an annual report containing a description of the activities of the advisory board for the preceding year.
(b) Report to the Secretary. The Secretary of the Interior shall make available to the Secretary the report described in paragraph (a) of this section.
(Authority: 20 U.S.C. 1411(i)(6)(A))
§ 300.267 Applicable regulations.
The Secretary of the Interior shall comply with the requirements of §§300.301–300.303, 300.305–300.309, 300.340–300.348, 300.351, 300.360–300.382, 300.400–300.402, 300.500–300.586, 300.600–300.621, and 300.660–300.662.
(Authority: 20 U.S.C. 1411(i)(2)(A))
Public Participation
§ 300.280 Public hearings before adopting State policies and procedures.
Prior to its adoption of State policies and procedures related to this part, the SEA shall—
(a) Make the policies and procedures available to the general public;
(b) Hold public hearings; and
(c) Provide an opportunity for comment by the general public on the policies and procedures.
(Authority: 20 U.S.C. 1412(a)(20))
§ 300.281 Notice.
(a) The SEA shall provide adequate notice to the general public of the public hearings.
(b) The notice must be in sufficient detail to inform the general public about—
(1) The purpose and scope of the State policies and procedures and their relation to Part B of the Act;
(2) The availability of the State policies and procedures;
(3) The date, time, and location of each public hearing;
(4) The procedures for submitting written comments about the policies and procedures; and
(5) The timetable for submitting the policies and procedures to the Secretary for approval.
(c) The notice must be published or announced—
(1) In newspapers or other media, or both, with circulation adequate to notify the general public about the hearings; and
(2) Enough in advance of the date of the hearings to afford interested parties throughout the State a reasonable opportunity to participate.
(Authority: 20 U.S.C. 1412(a)(20))
§ 300.282 Opportunity to participate; comment period.
(a) The SEA shall conduct the public hearings at times and places that afford interested parties throughout the State a reasonable opportunity to participate.
(b) The policies and procedures must be available for comment for a period of at least 30 days following the date of the notice under §300.281.
(Authority: 20 U.S.C. 1412(a)(20))
§ 300.283 Review of public comments before adopting policies and procedures.
Before adopting the policies and procedures, the SEA shall—
(a) Review and consider all public comments; and
(b) Make any necessary modifications in those policies and procedures.
(Authority: 20 U.S.C. 1412(a)(20))
§ 300.284 Publication and availability of approved policies and procedures.
After the Secretary approves a State's policies and procedures, the SEA shall give notice in newspapers or other media, or both, that the policies and procedures are approved. The notice must name places throughout the State where the policies and procedures are available for access by any interested person.
(Authority: 20 U.S.C. 1412(a)(20))
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