34 C.F.R. Subpart E—Procedural Safeguards
Title 34 - Education
(a) Responsibility of SEA and other public agencies. Each SEA shall ensure that each public agency establishes, maintains, and implements procedural safeguards that meet the requirements of §§300.500–300.529. (b) Definitions of “consent,” “evaluation,” and “personally identifiable.” As used in this part— (1) Consent means that— (i) The parent has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language, or other mode of communication; (ii) The parent understands and agrees in writing to the carrying out of the activity for which his or her consent is sought, and the consent describes that activity and lists the records (if any) that will be released and to whom; and (iii)(A) The parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at anytime. (B) If a parent revokes consent, that revocation is not retroactive (i.e., it does not negate an action that has occurred after the consent was given and before the consent was revoked). (2) Evaluation means procedures used in accordance with §§300.530–300.536 to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs; and (3) Personally identifiable means that information includes— (i) The name of the child, the child's parent, or other family member; (ii) The address of the child; (iii) A personal identifier, such as the child's social security number or student number; or (iv) A list of personal characteristics or other information that would make it possible to identify the child with reasonable certainty. (Authority: 20 U.S.C. 1415(a)) (a) General. The parents of a child with a disability must be afforded, in accordance with the procedures of §§300.562–300.569, an opportunity to— (1) Inspect and review all education records with respect to— (i) The identification, evaluation, and educational placement of the child; and (ii) The provision of FAPE to the child; and (2) Participate in meetings with respect to— (i) The identification, evaluation, and educational placement of the child; and (ii) The provision of FAPE to the child. (b) Parent participation in meetings. (1) Each public agency shall provide notice consistent with §300.345(a)(1) and (b)(1) to ensure that parents of children with disabilities have the opportunity to participate in meetings described in paragraph (a)(2) of this section. (2) A meeting does not include informal or unscheduled conversations involving public agency personnel and conversations on issues such as teaching methodology, lesson plans, or coordination of service provision if those issues are not addressed in the child's IEP. A meeting also does not include preparatory activities that public agency personnel engage in to develop a proposal or response to a parent proposal that will be discussed at a later meeting. (c) Parent involvement in placement decisions. (1) Each public agency shall ensure that the parents of each child with a disability are members of any group that makes decisions on the educational placement of their child. (2) In implementing the requirements of paragraph (c)(1) of this section, the public agency shall use procedures consistent with the procedures described in §300.345(a) through (b)(1). (3) If neither parent can participate in a meeting in which a decision is to be made relating to the educational placement of their child, the public agency shall use other methods to ensure their participation, including individual or conference telephone calls, or video conferencing. (4) A placement decision may be made by a group without the involvement of the parents, if the public agency is unable to obtain the parents' participation in the decision. In this case, the public agency must have a record of its attempt to ensure their involvement, including information that is consistent with the requirements of §300.345(d). (5) The public agency shall make reasonable efforts to ensure that the parents understand, and are able to participate in, any group discussions relating to the educational placement of their child, including arranging for an interpreter for parents with deafness, or whose native language is other than English. (Authority: 20 U.S.C. 1414(f), 1415(b)(1)) (a) General. (1) The parents of a child with a disability have the right under this part to obtain an independent educational evaluation of the child, subject to paragraphs (b) through (e) of this section. (2) Each public agency shall provide to parents, upon request for an independent educational evaluation, information about where an independent educational evaluation may be obtained, and the agency criteria applicable for independent educational evaluations as set forth in paragraph (e) of this section. (3) For the purposes of this part— (i) Independent educational evaluation means an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question; and (ii) Public expense means that the public agency either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent, consistent with §300.301. (b) Parent right to evaluation at public expense. (1) A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency. (2) If a parent requests an independent educational evaluation at public expense, the public agency must, without unnecessary delay, either— (i) Initiate a hearing under §300.507 to show that its evaluation is appropriate; or (ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing under §300.507 that the evaluation obtained by the parent did not meet agency criteria. (3) If the public agency initiates a hearing and the final decision is that the agency's evaluation is appropriate, the parent still has the right to an independent educational evaluation, but not at public expense. (4) If a parent requests an independent educational evaluation, the public agency may ask for the parent's reason why he or she objects to the public evaluation. However, the explanation by the parent may not be required and the public agency may not unreasonably delay either providing the independent educational evaluation at public expense or initiating a due process hearing to defend the public evaluation. (c) Parent-initiated evaluations. If the parent obtains an independent educational evaluation at private expense, the results of the evaluation— (1) Must be considered by the public agency, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child; and (2) May be presented as evidence at a hearing under this subpart regarding that child. (d) Requests for evaluations by hearing officers. If a hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation must be at public expense. (e) Agency criteria. (1) If an independent educational evaluation is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as the criteria that the public agency uses when it initiates an evaluation, to the extent those criteria are consistent with the parent's right to an independent educational evaluation. (2) Except for the criteria described in paragraph (e)(1) of this section, a public agency may not impose conditions or timelines related to obtaining an independent educational evaluation at public expense. (Authority: 20 U.S.C. 1415(b)(1)) (a) Notice. (1) Written notice that meets the requirements of paragraph (b) of this section must be given to the parents of a child with a disability a reasonable time before the public agency— (i) Proposes to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child; or (ii) Refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child. (2) If the notice described under paragraph (a)(1) of this section relates to an action proposed by the public agency that also requires parental consent under §300.505, the agency may give notice at the same time it requests parent consent. (b) Content of notice. The notice required under paragraph (a) of this section must include— (1) A description of the action proposed or refused by the agency; (2) An explanation of why the agency proposes or refuses to take the action; (3) A description of any other options that the agency considered and the reasons why those options were rejected; (4) A description of each evaluation procedure, test, record, or report the agency used as a basis for the proposed or refused action; (5) A description of any other factors that are relevant to the agency's proposal or refusal; (6) A statement that the parents of a child with a disability have protection under the procedural safeguards of this part and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained; and (7) Sources for parents to contact to obtain assistance in understanding the provisions of this part. (c) Notice in understandable language. (1) The notice required under paragraph (a) of this section must be— (i) Written in language understandable to the general public; and (ii) Provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so. (2) If the native language or other mode of communication of the parent is not a written language, the public agency shall take steps to ensure— (i) That the notice is translated orally or by other means to the parent in his or her native language or other mode of communication; (ii) That the parent understands the content of the notice; and (iii) That there is written evidence that the requirements in paragraphs (c)(2) (i) and (ii) of this section have been met. (Authority: 20 U.S.C. 1415(b)(3), (4) and (c), 1414(b)(1)) (a) General. A copy of the procedural safeguards available to the parents of a child with a disability must be given to the parents, at a minimum— (1) Upon initial referral for evaluation; (2) Upon each notification of an IEP meeting; (3) Upon reevaluation of the child; and (4) Upon receipt of a request for due process under §300.507. (b) Contents. The procedural safeguards notice must include a full explanation of all of the procedural safeguards available under §§300.403, 300.500–300.529, and 300.560–300.577, and the State complaint procedures available under §§300.660–300.662 relating to— (1) Independent educational evaluation; (2) Prior written notice; (3) Parental consent; (4) Access to educational records; (5) Opportunity to present complaints to initiate due process hearings; (6) The child's placement during pendency of due process proceedings; (7) Procedures for students who are subject to placement in an interim alternative educational setting; (8) Requirements for unilateral placement by parents of children in private schools at public expense; (9) Mediation; (10) Due process hearings, including requirements for disclosure of evaluation results and recommendations; (11) State-level appeals (if applicable in that State); (12) Civil actions; (13) Attorneys' fees; and (14) The State complaint procedures under §§300.660–300.662, including a description of how to file a complaint and the timelines under those procedures. (c) Notice in understandable language. The notice required under paragraph (a) of this section must meet the requirements of §300.503(c). (Authority: 20 U.S.C. 1415(d)) (a) General. (1) Subject to paragraphs (a)(3), (b) and (c) of this section, informed parent consent must be obtained before— (i) Conducting an initial evaluation or reevaluation; and (ii) Initial provision of special education and related services to a child with a disability. (2) Consent for initial evaluation may not be construed as consent for initial placement described in paragraph (a)(1)(ii) of this section. (3) Parental consent is not required before— (i) Reviewing existing data as part of an evaluation or a reevaluation; or (ii) Administering a test or other evaluation that is administered to all children unless, before administration of that test or evaluation, consent is required of parents of all children. (b) Refusal. If the parents of a child with a disability refuse consent for initial evaluation or a reevaluation, the agency may continue to pursue those evaluations by using the due process procedures under §§300.507–300.509, or the mediation procedures under §300.506 if appropriate, except to the extent inconsistent with State law relating to parental consent. (c) Failure to respond to request for reevaluation. (1) Informed parental consent need not be obtained for reevaluation if the public agency can demonstrate that it has taken reasonable measures to obtain that consent, and the child's parent has failed to respond. (2) To meet the reasonable measures requirement in paragraph (c)(1) of this section, the public agency must use procedures consistent with those in §300.345(d). (d) Additional State consent requirements. In addition to the parental consent requirements described in paragraph (a) of this section, a State may require parental consent for other services and activities under this part if it ensures that each public agency in the State establishes and implements effective procedures to ensure that a parent's refusal to consent does not result in a failure to provide the child with FAPE. (e) Limitation. A public agency may not use a parent's refusal to consent to one service or activity under paragraphs (a) and (d) of this section to deny the parent or child any other service, benefit, or activity of the public agency, except as required by this part. (Authority: 20 U.S.C. 1415(b)(3); 1414(a)(1)(C) and (c)(3)) (a) General. Each public agency shall ensure that procedures are established and implemented to allow parties to disputes involving any matter described in §300.503(a)(1) to resolve the disputes through a mediation process that, at a minimum, must be available whenever a hearing is requested under §§300.507 or 300.520–300.528. (b) Requirements. The procedures must meet the following requirements: (1) The procedures must ensure that the mediation process— (i) Is voluntary on the part of the parties; (ii) Is not used to deny or delay a parent's right to a due process hearing under §300.507, or to deny any other rights afforded under Part B of the Act; and (iii) Is conducted by a qualified and impartial mediator who is trained in effective mediation techniques. (2)(i) The State shall 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. (ii) If a mediator is not selected on a random (e.g., a rotation) basis from the list described in paragraph (b)(2)(i) of this section, both parties must be involved in selecting the mediator and agree with the selection of the individual who will mediate. (3) The State shall bear the cost of the mediation process, including the costs of meetings described in paragraph (d) of this section. (4) Each session in the mediation process must be scheduled in a timely manner and must be held in a location that is convenient to the parties to the dispute. (5) An agreement reached by the parties to the dispute in the mediation process must be set forth in a written mediation agreement. (6) Discussions that occur during the mediation process must be confidential and may not be used as evidence in any subsequent due process hearings or civil proceedings, and the parties to the mediation process may be required to sign a confidentiality pledge prior to the commencement of the process. (c) Impartiality of mediator. (1) An individual who serves as a mediator under this part— (i) May not be an employee of— (A) Any LEA or any State agency described under §300.194; or (B) An SEA that is providing direct services to a child who is the subject of the mediation process; and (ii) Must not have a personal or professional conflict of interest. (2) A person who otherwise qualifies as a mediator is not an employee of an LEA or State agency described under §300.194 solely because he or she is paid by the agency to serve as a mediator. (d) Meeting to encourage mediation. (1) A public agency may establish procedures to require parents who elect not to use the mediation process to meet, at a time and location convenient to the parents, with a disinterested party— (i) Who is under contract with a parent training and information center or community parent resource center in the State established under section 682 or 683 of the Act, or an appropriate alternative dispute resolution entity; and (ii) Who would explain the benefits of the mediation process, and encourage the parents to use the process. (2) A public agency may not deny or delay a parent's right to a due process hearing under §300.507 if the parent fails to participate in the meeting described in paragraph (d)(1) of this section. (Authority: 20 U.S.C. 1415(e)) (a) General. (1) A parent or a public agency may initiate a hearing on any of the matters described in §300.503(a)(1) and (2) (relating to the identification, evaluation or educational placement of a child with a disability, or the provision of FAPE to the child). (2) When a hearing is initiated under paragraph (a)(1) of this section, the public agency shall inform the parents of the availability of mediation described in §300.506. (3) The public agency shall inform the parent of any free or low-cost legal and other relevant services available in the area if— (i) The parent requests the information; or (ii) The parent or the agency initiates a hearing under this section. (b) Agency responsible for conducting hearing. The hearing described in paragraph (a) of this section must be conducted by the SEA or the public agency directly responsible for the education of the child, as determined under State statute, State regulation, or a written policy of the SEA. (c) Parent notice to the public agency—(1) General. The public agency must have procedures that require the parent of a child with a disability or the attorney representing the child, to provide notice (which must remain confidential) to the public agency in a request for a hearing under paragraph (a)(1) of this section. (2) Content of parent notice. The notice required in paragraph (c)(1) of this section must include— (i) The name of the child; (ii) The address of the residence of the child; (iii) The name of the school the child is attending; (iv) A description of the nature of the problem of the child relating to the proposed or refused initiation or change, including facts relating to the problem; and (v) A proposed resolution of the problem to the extent known and available to the parents at the time. (3) Model form to assist parents. Each SEA shall develop a model form to assist parents in filing a request for due process that includes the information required in paragraphs (c)(1) and (2) of this section. (4) Right to due process hearing. A public agency may not deny or delay a parent's right to a due process hearing for failure to provide the notice required in paragraphs (c)(1) and (2) of this section. (Authority: 20 U.S.C. 1415(b)(5), (b)(6), (b)(7), (b)(8), (e)(1) and (f)(1)) (a) A hearing may not be conducted— (1) By a person who is an employee of the State agency or the LEA that is involved in the education or care of the child; or (2) By any person having a personal or professional interest that would conflict with his or her objectivity in the hearing. (b) A person who otherwise qualifies to conduct a hearing under paragraph (a) of this section is not an employee of the agency solely because he or she is paid by the agency to serve as a hearing officer. (c) Each public agency shall keep a list of the persons who serve as hearing officers. The list must include a statement of the qualifications of each of those persons. (Authority: 20 U.S.C. 1415(f)(3)) (a) General. Any party to a hearing conducted pursuant to §§300.507 or 300.520–300.528, or an appeal conducted pursuant to §300.510, has the right to— (1) Be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities; (2) Present evidence and confront, cross-examine, and compel the attendance of witnesses; (3) Prohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least 5 business days before the hearing; (4) Obtain a written, or, at the option of the parents, electronic, verbatim record of the hearing; and (5) Obtain written, or, at the option of the parents, electronic findings of fact and decisions. (b) Additional disclosure of information. (1) At least 5 business days prior to a hearing conducted pursuant to §300.507(a), each party shall disclose to all other parties all evaluations completed by that date and recommendations based on the offering party's evaluations that the party intends to use at the hearing. (2) A hearing officer may bar any party that fails to comply with paragraph (b)(1) of this section from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party. (c) Parental rights at hearings. (1) Parents involved in hearings must be given the right to— (i) Have the child who is the subject of the hearing present; and (ii) Open the hearing to the public. (2) The record of the hearing and the findings of fact and decisions described in paragraphs (a)(4) and (a)(5) of this section must be provided at no cost to parents. (d) Findings and decision to advisory panel and general public. The public agency, after deleting any personally identifiable information, shall— (1) Transmit the findings and decisions referred to in paragraph (a)(5) of this section to the State advisory panel established under §300.650; and (2) Make those findings and decisions available to the public. (Authority: 20 U.S.C. 1415(f)(2) and (h)) (a) Finality of decision. A decision made in a hearing conducted pursuant to §§300.507 or 300.520–300.528 is final, except that any party involved in the hearing may appeal the decision under the provisions of paragraph (b) of this section and §300.512. (b) Appeal of decisions; impartial review—(1) General. If the hearing required by §300.507 is conducted by a public agency other than the SEA, any party aggrieved by the findings and decision in the hearing may appeal to the SEA. (2) SEA responsibility for review. If there is an appeal, the SEA shall conduct an impartial review of the hearing. The official conducting the review shall— (i) Examine the entire hearing record; (ii) Ensure that the procedures at the hearing were consistent with the requirements of due process; (iii) Seek additional evidence if necessary. If a hearing is held to receive additional evidence, the rights in §300.509 apply; (iv) Afford the parties an opportunity for oral or written argument, or both, at the discretion of the reviewing official; (v) Make an independent decision on completion of the review; and (vi) Give a copy of the written, or, at the option of the parents, electronic findings of fact and decisions to the parties. (c) Findings and decision to advisory panel and general public. The SEA, after deleting any personally identifiable information, shall— (1) Transmit the findings and decisions referred to in paragraph (b)(2)(vi) of this section to the State advisory panel established under §300.650; and (2) Make those findings and decisions available to the public. (d) Finality of review decision. The decision made by the reviewing official is final unless a party brings a civil action under §300.512. (Authority: 20 U.S.C. 1415(g); H. R. Rep. No. 94–664, at p. 49 (1975)) (a) The public agency shall ensure that not later than 45 days after the receipt of a request for a hearing— (1) A final decision is reached in the hearing; and (2) A copy of the decision is mailed to each of the parties. (b) The SEA shall ensure that not later than 30 days after the receipt of a request for a review— (1) A final decision is reached in the review; and (2) A copy of the decision is mailed to each of the parties. (c) A hearing or reviewing officer may grant specific extensions of time beyond the periods set out in paragraphs (a) and (b) of this section at the request of either party. (d) Each hearing and each review involving oral arguments must be conducted at a time and place that is reasonably convenient to the parents and child involved. (Authority: 20 U.S.C. 1415) (a) General. Any party aggrieved by the findings and decision made under §§300.507 or 300.520–300.528 who does not have the right to an appeal under §300.510(b), and any party aggrieved by the findings and decision under §300.510(b), has the right to bring a civil action with respect to the complaint presented pursuant to §300.507. The action may be brought in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy. (b) Additional requirements. In any action brought under paragraph (a) of this section, the court— (1) Shall receive the records of the administrative proceedings; (2) Shall hear additional evidence at the request of a party; and (3) Basing its decision on the preponderance of the evidence, shall grant the relief that the court determines to be appropriate. (c) Jurisdiction of district courts. The district courts of the United States have jurisdiction of actions brought under section 615 of the Act without regard to the amount in controversy. (d) Rule of construction. Nothing in this part restricts or limits the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under these laws seeking relief that is also available under section 615 of the Act, the procedures under §§300.507 and 300.510 must be exhausted to the same extent as would be required had the action been brought under section 615 of the Act. (Authority: 20 U.S.C. 1415(i)(2), (i)(3)(A), and 1415(l)) (a) In any action or proceeding brought under section 615 of the Act, the court, in its discretion, may award reasonable attorneys' fees as part of the costs to the parents of a child with a disability who is the prevailing party. (b)(1) Funds under Part B of the Act may not be used to pay attorneys' fees or costs of a party related to an action or proceeding under section 615 of the Act and subpart E of this part. (2) Paragraph (b)(1) of this section does not preclude a public agency from using funds under Part B of the Act for conducting an action or proceeding under section 615 of the Act. (c) A court awards reasonable attorney's fees under section 615(i)(3) of the Act consistent with the following: (1) Determination of amount of attorneys' fees. Fees awarded under section 615(i)(3) of the Act must be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished. No bonus or multiplier may be used in calculating the fees awarded under this subsection. (2) Prohibition of attorneys' fees and related costs for certain services. (i) Attorneys' fees may not be awarded and related costs may not be reimbursed in any action or proceeding under section 615 of the Act for services performed subsequent to the time of a written offer of settlement to a parent if— (A) The offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil Procedure or, in the case of an administrative proceeding, at any time more than 10 days before the proceeding begins; (B) The offer is not accepted within 10 days; and (C) The court or administrative hearing officer finds that the relief finally obtained by the parents is not more favorable to the parents than the offer of settlement. (ii) Attorneys' fees may not be awarded relating to any meeting of the IEP team unless the meeting is convened as a result of an administrative proceeding or judicial action, or at the discretion of the State, for a mediation described in §300.506 that is conducted prior to the filing of a request for due process under §§300.507 or 300.520–300.528. (3) Exception to prohibition on attorneys' fees and related costs. Notwithstanding paragraph (c)(2) of this section, an award of attorneys' fees and related costs may be made to a parent who is the prevailing party and who was substantially justified in rejecting the settlement offer. (4) Reduction of amount of attorneys' fees. Except as provided in paragraph (c)(5) of this section, the court reduces, accordingly, the amount of the attorneys' fees awarded under section 615 of the Act, if the court finds that— (i) The parent, during the course of the action or proceeding, unreasonably protracted the final resolution of the controversy; (ii) The amount of the attorneys' fees otherwise authorized to be awarded unreasonably exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonably comparable skill, reputation, and experience; (iii) The time spent and legal services furnished were excessive considering the nature of the action or proceeding; or (iv) The attorney representing the parent did not provide to the school district the appropriate information in the due process complaint in accordance with §300.507(c). (5) Exception to reduction in amount of attorneys' fees. The provisions of paragraph (c)(4) of this section do not apply in any action or proceeding if the court finds that the State or local agency unreasonably protracted the final resolution of the action or proceeding or there was a violation of section 615 of the Act. (Authority: 20 U.S.C. 1415(i)(3)(B)–(G)) (a) Except as provided in §300.526, during the pendency of any administrative or judicial proceeding regarding a complaint under §300.507, unless the State or local agency and the parents of the child agree otherwise, the child involved in the complaint must remain in his or her current educational placement. (b) If the complaint involves an application for initial admission to public school, the child, with the consent of the parents, must be placed in the public school until the completion of all the proceedings. (c) If the decision of a hearing officer in a due process hearing conducted by the SEA or a State review official in an administrative appeal agrees with the child's parents that a change of placement is appropriate, that placement must be treated as an agreement between the State or local agency and the parents for purposes of paragraph (a) of this section. (Authority: 20 U.S.C. 1415(j)) (a) General. Each public agency shall ensure that the rights of a child are protected if— (1) No parent (as defined in §300.20) can be identified; (2) The public agency, after reasonable efforts, cannot discover the whereabouts of a parent; or (3) The child is a ward of the State under the laws of that State. (b) Duty of public agency. The duty of a public agency under paragraph (a) of this section includes the assignment of an individual to act as a surrogate for the parents. This must include a method— (1) For determining whether a child needs a surrogate parent; and (2) For assigning a surrogate parent to the child. (c) Criteria for selection of surrogates. (1) The public agency may select a surrogate parent in any way permitted under State law. (2) Except as provided in paragraph (c)(3) of this section, public agencies shall ensure that a person selected as a surrogate— (i) Is not an employee of the SEA, the LEA, or any other agency that is involved in the education or care of the child; (ii) Has no interest that conflicts with the interest of the child he or she represents; and (iii) Has knowledge and skills that ensure adequate representation of the child. (3) A public agency may select as a surrogate a person who is an employee of a nonpublic agency that only provides non-educational care for the child and who meets the standards in paragraphs (c)(2)(ii) and (iii) of this section. (d) Non-employee requirement; compensation. A person who otherwise qualifies to be a surrogate parent under paragraph (c) of this section is not an employee of the agency solely because he or she is paid by the agency to serve as a surrogate parent. (e) Responsibilities. The surrogate parent may represent the child in all matters relating to— (1) The identification, evaluation, and educational placement of the child; and (2) The provision of FAPE to the child. (Authority: 20 U.S.C. 1415(b)(2))
Title 34: Education
PART 300—ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH DISABILITIES
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.
§ 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.
(a) General. A State may provide that, when a student with a disability reaches the age of majority under State law that applies to all students (except for a student with a disability who has been determined to be incompetent under State law)—
(1)(i) The public agency shall provide any notice required by this part to both the individual and the parents; and
(ii) All other rights accorded to parents under Part B of the Act transfer to the student; and
(2) All rights accorded to parents under Part B of the Act transfer to students who are incarcerated in an adult or juvenile, State or local correctional institution.
(3) Whenever a State transfers rights under this part pursuant to paragraph (a)(1) or (a)(2) of this section, the agency shall notify the individual and the parents of the transfer of rights.
(b) Special rule. If, under State law, a State has a mechanism to determine that a student with a disability, who has reached the age of majority under State law that applies to all children and has not been determined incompetent under State law, does not have the ability to provide informed consent with respect to his or her educational program, the State shall establish procedures for appointing the parent, or, if the parent is not available another appropriate individual, to represent the educational interests of the student throughout the student's eligibility under Part B of the Act.
(Authority: 20 U.S.C. 1415(m))
Discipline Procedures
§ 300.519 Change of placement for disciplinary removals.
For purposes of removals of a child with a disability from the child's current educational placement under §§300.520–300.529, a change of placement occurs if—
(a) The removal is for more than 10 consecutive school days; or
(b) 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 each removal, the total amount of time the child is removed, and the proximity of the removals to one another.
(Authority: 20 U.S.C. 1415(k))
§ 300.520 Authority of school personnel.
(a) School personnel may order—
(1)(i) To the extent removal would be applied to children without disabilities, the removal of a child with a disability from the child's current placement for not more than 10 consecutive school days for any violation of school rules, and additional removals of not more than 10 consecutive school days in that same school year for separate incidents of misconduct (as long as those removals do not constitute a change of placement under §300.519(b));
(ii) 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 required under §300.121(d); and
(2) A change in placement of a child with a disability to an appropriate interim alternative educational setting for the same amount of time that a child without a disability would be subject to discipline, but for not more than 45 days, if—
(i) The child carries a weapon to school or to a school function under the jurisdiction of a State or a local educational agency; or
(ii) The child knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function under the jurisdiction of a State or local educational agency.
(b)(1) Either before or not later than 10 business days after either first removing the child for more than 10 school days in a school year or commencing a removal that constitutes a change of placement under §300.519, including the action described in paragraph (a)(2) of this section—
(i) If the LEA did not conduct a functional behavioral assessment and implement a behavioral intervention plan for the child before the behavior that resulted in the removal described in paragraph (a) of this section, the agency shall convene an IEP meeting to develop an assessment plan.
(ii) If the child already has a behavioral intervention plan, the IEP team shall meet to review the plan and its implementation, and, modify the plan and its implementation as necessary, to address the behavior.
(2) As soon as practicable after developing the plan described in paragraph (b)(1)(i) of this section, and completing the assessments required by the plan, the LEA shall convene an IEP meeting to develop appropriate behavioral interventions to address that behavior and shall implement those interventions.
(c)(1) If subsequently, a child with a disability who has a behavioral intervention plan and who has been removed from the child's current educational placement for more than 10 school days in a school year is subjected to a removal that does not constitute a change of placement under §300.519, the IEP team members shall review the behavioral intervention plan and its implementation to determine if modifications are necessary.
(2) If one or more of the team members believe that modifications are needed, the team shall meet to modify the plan and its implementation, to the extent the team determines necessary.
(d) For purposes of this section, the following definitions apply:
(1) Controlled substance means a drug or other substance identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)).
(2) Illegal drug—
(i) Means a controlled substance; but
(ii) Does not include a substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under that Act or under any other provision of Federal law.
(3) Weapon has the meaning given the term “dangerous weapon” under paragraph (2) of the first subsection (g) of section 930 of title 18, United States Code.
(Authority: 20 U.S.C. 1415(k)(1), (10))
§ 300.521 Authority of hearing officer.
A hearing officer under section 615 of the Act may order a change in the placement of a child with a disability to an appropriate interim alternative educational setting for not more than 45 days if the hearing officer, in an expedited due process hearing—
(a) Determines that the public agency has demonstrated by substantial evidence that maintaining the current placement of the child is substantially likely to result in injury to the child or to others;
(b) Considers the appropriateness of the child's current placement;
(c) Considers whether the public agency has made reasonable efforts to minimize the risk of harm in the child's current placement, including the use of supplementary aids and services; and
(d) Determines that the interim alternative educational setting that is proposed by school personnel who have consulted with the child's special education teacher, meets the requirements of §300.522(b).
(e) As used in this section, the term substantial evidence means beyond a preponderance of the evidence.
(Authority: 20 U.S.C. 1415(k)(2), (10))
§ 300.522 Determination of setting.
(a) General. The interim alternative educational setting referred to in §300.520(a)(2) must be determined by the IEP team.
(b) Additional requirements. Any interim alternative educational setting in which a child is placed under §§300.520(a)(2) or 300.521 must—
(1) 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
(2) Include services and modifications to address the behavior described in §§300.520(a)(2) or 300.521, that are designed to prevent the behavior from recurring.
(Authority: 20 U.S.C. 1415(k)(3))
§ 300.523 Manifestation determination review.
(a) General. If an action is contemplated regarding behavior described in §§300.520(a)(2) or 300.521, or involving a removal that constitutes a change of placement under §300.519 for a child with a disability who has engaged in other behavior that violated any rule or code of conduct of the LEA that applies to all children—
(1) Not later than the date on which the decision to take that action is made, the parents must be notified of that decision and provided the procedural safeguards notice described in §300.504; and
(2) Immediately, if possible, but in no case later than 10 school days after the date on which the decision to take that action is made, a review must be conducted of the relationship between the child's disability and the behavior subject to the disciplinary action.
(b) Individuals to carry out review. A review described in paragraph (a) of this section must be conducted by the IEP team and other qualified personnel in a meeting.
(c) Conduct of review. In carrying out a review described in paragraph (a) of this section, the IEP team and other qualified personnel may determine that the behavior of the child was not a manifestation of the child's disability only if the IEP team and other qualified personnel—
(1) First consider, in terms of the behavior subject to disciplinary action, all relevant information, including—
(i) Evaluation and diagnostic results, including the results or other relevant information supplied by the parents of the child;
(ii) Observations of the child; and
(iii) The child's IEP and placement; and
(2) Then determine that—
(i) In relationship to the behavior subject to disciplinary action, the child's IEP and placement were appropriate and the special education services, supplementary aids and services, and behavior intervention strategies were provided consistent with the child's IEP and placement;
(ii) The child's disability did not impair the ability of the child to understand the impact and consequences of the behavior subject to disciplinary action; and
(iii) The child's disability did not impair the ability of the child to control the behavior subject to disciplinary action.
(d) Decision. If the IEP team and other qualified personnel determine that any of the standards in paragraph (c)(2) of this section were not met, the behavior must be considered a manifestation of the child's disability.
(e) Meeting. The review described in paragraph (a) of this section may be conducted at the same IEP meeting that is convened under §300.520(b).
(f) Deficiencies in IEP or placement. If, in the review in paragraphs (b) and (c) of this section, a public agency identifies deficiencies in the child's IEP or placement or in their implementation, it must take immediate steps to remedy those deficiencies.
(Authority: 20 U.S.C. 1415(k)(4))
§ 300.524 Determination that behavior was not manifestation of disability.
(a) General. If the result of the review described in §300.523 is a determination, consistent with §300.523(d), that the behavior of the child with a disability was not a manifestation of the child's disability, the relevant disciplinary procedures applicable to children without disabilities may be applied to the child in the same manner in which they would be applied to children without disabilities, except as provided in §300.121(d).
(b) Additional requirement. If the public agency initiates disciplinary procedures applicable to all children, the agency shall ensure that the special education and disciplinary records of the child with a disability are transmitted for consideration by the person or persons making the final determination regarding the disciplinary action.
(c) Child's status during due process proceedings. Except as provided in §300.526, §300.514 applies if a parent requests a hearing to challenge a determination, made through the review described in §300.523, that the behavior of the child was not a manifestation of the child's disability.
(Authority: 20 U.S.C. 1415(k)(5))
§ 300.525 Parent appeal.
(a) General. (1) If the child's parent disagrees with a determination that the child's behavior was not a manifestation of the child's disability or with any decision regarding placement under §§300.520–300.528, the parent may request a hearing.
(2) The State or local educational agency shall arrange for an expedited hearing in any case described in paragraph (a)(1) of this section if a hearing is requested by a parent.
(b) Review of decision. (1) In reviewing a decision with respect to the manifestation determination, the hearing officer shall determine whether the public agency has demonstrated that the child's behavior was not a manifestation of the child's disability consistent with the requirements of §300.523(d).
(2) In reviewing a decision under §300.520(a)(2) to place the child in an interim alternative educational setting, the hearing officer shall apply the standards in §300.521.
(Authority: 20 U.S.C. 1415(k)(6))
§ 300.526 Placement during appeals.
(a) General. If a parent requests a hearing or an appeal regarding a disciplinary action described in §300.520(a)(2) or 300.521 to challenge the interim alternative educational setting or the manifestation determination, the child must remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the time period provided for in §300.520(a)(2) or 300.521, whichever occurs first, unless the parent and the State agency or local educational agency agree otherwise.
(b) Current placement. If a child is placed in an interim alternative educational setting pursuant to §300.520(a)(2) or 300.521 and school personnel propose to change the child's placement after expiration of the interim alternative placement, during the pendency of any proceeding to challenge the proposed change in placement the child must remain in the current placement (the child's placement prior to the interim alternative educational setting), except as provided in paragraph (c) of this section.
(c) Expedited hearing. (1) If school personnel maintain that it is dangerous for the child to be in the current placement (placement prior to removal to the interim alternative education setting) during the pendency of the due process proceedings, the LEA may request an expedited due process hearing.
(2) In determining whether the child may be placed in the alternative educational setting or in another appropriate placement ordered by the hearing officer, the hearing officer shall apply the standards in §300.521.
(3) A placement ordered pursuant to paragraph (c)(2) of this section may not be longer than 45 days.
(4) The procedure in paragraph (c) of this section may be repeated, as necessary.
(Authority: 20 U.S.C. 1415(k)(7))
§ 300.527 Protections for children not yet eligible for special education and related services.
(a) General. A child who has not been determined to be eligible for special education and related services under this part and who has engaged in behavior that violated any rule or code of conduct of the local educational agency, including any behavior described in §§300.520 or 300.521, may assert any of the protections provided for in this part if the LEA had knowledge (as determined in accordance with paragraph (b) of this section) that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.
(b) Basis of knowledge. An LEA must be deemed to have knowledge that a child is a child with a disability if—
(1) The parent of the child has expressed concern in writing (or orally if the parent does not know how to write or has a disability that prevents a written statement) to personnel of the appropriate educational agency that the child is in need of special education and related services;
(2) The behavior or performance of the child demonstrates the need for these services, in accordance with §300.7;
(3) The parent of the child has requested an evaluation of the child pursuant to §§300.530–300.536; or
(4) The teacher of the child, or other personnel of the local educational agency, has expressed concern about the behavior or performance of the child to the director of special education of the agency or to other personnel in accordance with the agency's established child find or special education referral system.
(c) Exception. A public agency would not be deemed to have knowledge under paragraph (b) of this section if, as a result of receiving the information specified in that paragraph, the agency—
(1) Either—
(i) Conducted an evaluation under §§300.530–300.536, and determined that the child was not a child with a disability under this part; or
(ii) Determined that an evaluation was not necessary; and
(2) Provided notice to the child's parents of its determination under paragraph (c)(1) of this section, consistent with §300.503.
(d) Conditions that apply if no basis of knowledge—(1) General. If an LEA does not have knowledge that a child is a child with a disability (in accordance with paragraphs (b) and (c) of this section) prior to taking disciplinary measures against the child, the child may be subjected to the same disciplinary measures as measures applied to children without disabilities who engaged in comparable behaviors consistent with paragraph (d)(2) of this section.
(2) Limitations. (i) If a request is made for an evaluation of a child during the time period in which the child is subjected to disciplinary measures under §300.520 or 300.521, the evaluation must be conducted in an expedited manner.
(ii) Until the evaluation is completed, the child remains in the educational placement determined by school authorities, which can include suspension or expulsion without educational services.
(iii) If the child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the agency and information provided by the parents, the agency shall provide special education and related services in accordance with the provisions of this part, including the requirements of §§300.520–300.529 and section 612(a)(1)(A) of the Act.
(Authority: 20 U.S.C. 1415(k)(8))
§ 300.528 Expedited due process hearings.
(a) Expedited due process hearings under §§300.521–300.526 must—
(1) Meet the requirements of §300.509, except that a State may provide that the time periods identified in §§300.509(a)(3) and §300.509(b) for purposes of expedited due process hearings under §§300.521–300.526 are not less than two business days; and
(2) Be conducted by a due process hearing officer who satisfies the requirements of §300.508.
(b)(1) Each State shall establish a timeline for expedited due process hearings that results in a written decision being mailed to the parties within 45 days of the public agency's receipt of the request for the hearing, without exceptions or extensions.
(2) The timeline established under paragraph (b)(1) of this section must be the same for hearings requested by parents or public agencies.
(c) A State may establish different procedural rules for expedited hearings under §§300.521–300.526 than it has established for due process hearings under §300.507.
(d) The decisions on expedited due process hearings are appealable consistent with §300.510.
(Authority: 20 U.S.C. 1415(k)(2), (6), (7))
§ 300.529 Referral to and action by law enforcement and judicial authorities.
(a) Nothing in this part prohibits an agency from reporting a crime committed by a child with a disability to appropriate authorities or to prevent State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability.
(b)(1) An agency reporting a crime committed by a child with a disability shall ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom it reports the crime.
(2) An agency reporting a crime under this section may transmit copies of the child's special education and disciplinary records only to the extent that the transmission is permitted by the Family Educational Rights and Privacy Act.
(Authority: 20 U.S.C. 1415(k)(9))
Procedures for Evaluation and Determination of Eligibility
§ 300.530 General.
Each SEA shall ensure that each public agency establishes and implements procedures that meet the requirements of §§300.531–300.536.
(Authority: 20 U.S.C. 1414(b)(3); 1412(a)(7))
§ 300.531 Initial evaluation.
Each public agency shall conduct a full and individual initial evaluation, in accordance with §§300.532 and 300.533, before the initial provision of special education and related services to a child with a disability under Part B of the Act.
(Authority: 20 U.S.C. 1414(a)(1))
§ 300.532 Evaluation procedures.
Each public agency shall ensure, at a minimum, that the following requirements are met:
(a)(1) Tests and other evaluation materials used to assess a child under Part B of the Act—
(i) Are selected and administered so as not to be discriminatory on a racial or cultural basis; and
(ii) Are provided and administered in the child's native language or other mode of communication, unless it is clearly not feasible to do so; and
(2) Materials and procedures used to assess a child with limited English proficiency are selected and administered to ensure that they measure the extent to which the child has a disability and needs special education, rather than measuring the child's English language skills.
(b) A variety of assessment tools and strategies are used to gather relevant functional and developmental information about the child, including information provided by the parent, and information related to enabling the child to be involved in and progress in the general curriculum (or for a preschool child, to participate in appropriate activities), that may assist in determining—
(1) Whether the child is a child with a disability under §300.7; and
(2) The content of the child's IEP.
(c)(1) Any standardized tests that are given to a child—
(i) Have been validated for the specific purpose for which they are used; and
(ii) Are administered by trained and knowledgeable personnel in accordance with any instructions provided by the producer of the tests.
(2) If an assessment is not conducted under standard conditions, a description of the extent to which it varied from standard conditions (e.g., the qualifications of the person administering the test, or the method of test administration) must be included in the evaluation report.
(d) Tests and other evaluation materials include those tailored to assess specific areas of educational need and not merely those that are designed to provide a single general intelligence quotient.
(e) Tests are selected and administered so as best to ensure that if a test is administered to a child with impaired sensory, manual, or speaking skills, the test results accurately reflect the child's aptitude or achievement level or whatever other factors the test purports to measure, rather than reflecting the child's impaired sensory, manual, or speaking skills (unless those skills are the factors that the test purports to measure).
(f) No single procedure is used as the sole criterion for determining whether a child is a child with a disability and for determining an appropriate educational program for the child.
(g) The child is assessed in all areas related to the suspected disability, including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities.
(h) In evaluating each child with a disability under §§300.531–300.536, the evaluation 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.
(i) The public agency uses technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.
(j) The public agency uses assessment tools and strategies that provide relevant information that directly assists persons in determining the educational needs of the child.
(Authority: 20 U.S.C. 1412(a)(6)(B), 1414(b)(2) and (3))
§ 300.533 Determination of needed evaluation data.
(a) Review of existing evaluation data. As part of an initial evaluation (if appropriate) and as part of any reevaluation under Part B of the Act, a group that includes the individuals described in §300.344, and other qualified professionals, as appropriate, shall—
(1) Review existing evaluation data on the child, including—
(i) Evaluations and information provided by the parents of the child;
(ii) Current classroom-based assessments and observations; and
(iii) Observations by teachers and related services providers; and
(2) On the basis of that review, and input from the child's parents, identify what additional data, if any, are needed to determine—
(i) Whether the child has a particular category of disability, as described in §300.7, or, in case of a reevaluation of a child, whether the child continues to have such a disability;
(ii) The present levels of performance and educational needs of the child;
(iii) Whether the child needs special education and related services, or in the case of a reevaluation of a child, whether the child continues to need special education and related services; and
(iv) Whether any additions or modifications to the special education and related services are needed to enable the child to meet the measurable annual goals set out in the IEP of the child and to participate, as appropriate, in the general curriculum.
(b) Conduct of review. The group described in paragraph (a) of this section may conduct its review without a meeting.
(c) Need for additional data. The public agency shall administer tests and other evaluation materials as may be needed to produce the data identified under paragraph (a) of this section.
(d) Requirements if additional data are not needed. (1) If the determination under paragraph (a) of this section is that no additional data are needed to determine whether the child continues to be a child with a disability, the public agency shall notify the child's parents—
(i) Of that determination and the reasons for it; and
(ii) Of the right of the parents to request an assessment to determine whether, for purposes of services under this part, the child continues to be a child with a disability.
(2) The public agency is not required to conduct the assessment described in paragraph (d)(1)(ii) of this section unless requested to do so by the child's parents.
(Authority: 20 U.S.C. 1414(c)(1), (2) and (4))
§ 300.534 Determination of eligibility.
(a) Upon completing the administration of tests and other evaluation materials—
(1) A group of qualified professionals and the parent of the child must determine whether the child is a child with a disability, as defined in §300.7; and
(2) The public agency must provide a copy of the evaluation report and the documentation of determination of eligibility to the parent.
(b) A child may not be determined to be eligible under this part if—
(1) The determinant factor for that eligibility determination is—
(i) Lack of instruction in reading or math; or
(ii) Limited English proficiency; and
(2) The child does not otherwise meet the eligibility criteria under §300.7(a).
(c)(1) A public agency must evaluate a child with a disability in accordance with §§300.532 and 300.533 before determining that the child is no longer a child with a disability.
(2) The evaluation described in paragraph (c)(1) of this section is not required before the termination of a student's eligibility under Part B of the Act due to graduation with a regular high school diploma, or exceeding the age eligibility for FAPE under State law.
(Authority: 20 U.S.C. 1414(b)(4) and (5), (c)(5))
§ 300.535 Procedures for determining eligibility and placement.
(a) In interpreting evaluation data for the purpose of determining if a child is a child with a disability under §300.7, and the educational needs of the child, each public agency shall—
(1) Draw upon information from a variety of sources, including aptitude and achievement tests, parent input, teacher recommendations, physical condition, social or cultural background, and adaptive behavior; and
(2) Ensure that information obtained from all of these sources is documented and carefully considered.
(b) If a determination is made that a child has a disability and needs special education and related services, an IEP must be developed for the child in accordance with §§300.340–300.350.
(Authority: 20 U.S.C. 1412(a)(6), 1414(b)(4))
§ 300.536 Reevaluation.
Each public agency shall ensure—
(a) That the IEP of each child with a disability is reviewed in accordance with §§300.340–300.350; and
(b) That a reevaluation of each child, in accordance with §§300.532–300.535, is conducted if conditions warrant a reevaluation, or if the child's parent or teacher requests a reevaluation, but at least once every three years.
(Authority: 20 U.S.C. 1414(a)(2))
Additional Procedures for Evaluating Children With Specific Learning Disabilities
§ 300.540 Additional team members.
The determination of whether a child suspected of having a specific learning disability is a child with a disability as defined in §300.7, must be made by the child's parents and a team of qualified professionals which must include—
(a)(1) The child's regular teacher; or
(2) If the child does not have a regular teacher, a regular classroom teacher qualified to teach a child of his or her age; or
(3) For a child of less than school age, an individual qualified by the SEA to teach a child of his or her age; and
(b) At least one person qualified to conduct individual diagnostic examinations of children, such as a school psychologist, speech-language pathologist, or remedial reading teacher.
(Authority: Sec. 5(b), Pub. L. 94–142)
§ 300.541 Criteria for determining the existence of a specific learning disability.
(a) A team may determine that a child has a specific learning disability if—
(1) The child does not achieve commensurate with his or her age and ability levels in one or more of the areas listed in paragraph (a)(2) of this section, if provided with learning experiences appropriate for the child's age and ability levels; and
(2) The team finds that a child has a severe discrepancy between achievement and intellectual ability in one or more of the following areas:
(i) Oral expression.
(ii) Listening comprehension.
(iii) Written expression.
(iv) Basic reading skill.
(v) Reading comprehension.
(vi) Mathematics calculation.
(vii) Mathematics reasoning.
(b) The team may not identify a child as having a specific learning disability if the severe discrepancy between ability and achievement is primarily the result of—
(1) A visual, hearing, or motor impairment;
(2) Mental retardation;
(3) Emotional disturbance; or
(4) Environmental, cultural or economic disadvantage.
(Authority: Sec. 5(b), Pub. L. 94–142)
§ 300.542 Observation.
(a) At least one team member other than the child's regular teacher shall observe the child's academic performance in the regular classroom setting.
(b) In the case of a child of less than school age or out of school, a team member shall observe the child in an environment appropriate for a child of that age.
(Authority: Sec. 5(b), Pub. L. 94–142)
§ 300.543 Written report.
(a) For a child suspected of having a specific learning disability, the documentation of the team's determination of eligibility, as required by §300.534(a)(2), must include a statement of—
(1) Whether the child has a specific learning disability;
(2) The basis for making the determination;
(3) The relevant behavior noted during the observation of the child;
(4) The relationship of that behavior to the child's academic functioning;
(5) The educationally relevant medical findings, if any;
(6) Whether there is a severe discrepancy between achievement and ability that is not correctable without special education and related services; and
(7) The determination of the team concerning the effects of environmental, cultural, or economic disadvantage.
(b) Each team member shall certify in writing whether the report reflects his or her conclusion. If it does not reflect his or her conclusion, the team member must submit a separate statement presenting his or her conclusions.
(Authority: Sec. 5(b), Pub. L. 94–142))
Least Restrictive Environment (LRE)
§ 300.550 General LRE requirements.
(a) Except as provided in §300.311(b) and (c), a State shall demonstrate to the satisfaction of the Secretary that the State has in effect policies and procedures to ensure that it meets the requirements of §§300.550–300.556.
(b) Each public agency shall ensure—
(1) That to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are nondisabled; and
(2) That special classes, separate schooling or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.
(Authority: 20 U.S.C. 1412(a)(5))
§ 300.551 Continuum of alternative placements.
(a) Each public agency shall ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services.
(b) The continuum required in paragraph (a) of this section must—
(1) Include the alternative placements listed in the definition of special education under §300.26 (instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions); and
(2) Make provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement.
(Authority: 20 U.S.C. 1412(a)(5))
§ 300.552 Placements.
In determining the educational placement of a child with a disability, including a preschool child with a disability, each public agency shall ensure that—
(a) The placement decision—
(1) Is made by a group of persons, including the parents, and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options; and
(2) Is made in conformity with the LRE provisions of this subpart, including §§300.550–300.554;
(b) The child's placement—
(1) Is determined at least annually;
(2) Is based on the child's IEP; and
(3) Is as close as possible to the child's home;
(c) Unless the IEP of a child with a disability requires some other arrangement, the child is educated in the school that he or she would attend if nondisabled;
(d) In selecting the LRE, consideration is given to any potential harmful effect on the child or on the quality of services that he or she needs; and
(e) A child with a disability is not removed from education in age-appropriate regular classrooms solely because of needed modifications in the general curriculum.
(Authority: 20 U.S.C. 1412(a)(5))
§ 300.553 Nonacademic settings.
In providing or arranging for the provision of nonacademic and extracurricular services and activities, including meals, recess periods, and the services and activities set forth in §300.306, each public agency shall ensure that each child with a disability participates with nondisabled children in those services and activities to the maximum extent appropriate to the needs of that child.
(Authority: 20 U.S.C. 1412(a)(5))
§ 300.554 Children in public or private institutions.
Except as provided in §300.600(d), an SEA must ensure that §300.550 is effectively implemented, including, if necessary, making arrangements with public and private institutions (such as a memorandum of agreement or special implementation procedures).
(Authority: 20 U.S.C. 1412(a)(5))
§ 300.555 Technical assistance and training activities.
Each SEA shall carry out activities to ensure that teachers and administrators in all public agencies—
(a) Are fully informed about their responsibilities for implementing §300.550; and
(b) Are provided with technical assistance and training necessary to assist them in this effort.
(Authority: 20 U.S.C. 1412(a)(5))
§ 300.556 Monitoring activities.
(a) The SEA shall carry out activities to ensure that §300.550 is implemented by each public agency.
(b) If there is evidence that a public agency makes placements that are inconsistent with §300.550, the SEA shall—
(1) Review the public agency's justification for its actions; and
(2) Assist in planning and implementing any necessary corrective action.
(Authority: 20 U.S.C. 1412(a)(5))
Confidentiality of Information
§ 300.560 Definitions.
As used in §§300.560–300.577—
(a) Destruction means physical destruction or removal of personal identifiers from information so that the information is no longer personally identifiable.
(b) Education records means the type of records covered under the definition of “education records” in 34 CFR part 99 (the regulations implementing the Family Educational Rights and Privacy Act of 1974).
(c) Participating agency means any agency or institution that collects, maintains, or uses personally identifiable information, or from which information is obtained, under Part B of the Act.
(Authority: 20 U.S.C. 1221e–3, 1412(a)(8), 1417(c))
§ 300.561 Notice to parents.
(a) The SEA shall give notice that is adequate to fully inform parents about the requirements of §300.127, including—
(1) A description of the extent that the notice is given in the native languages of the various population groups in the State;
(2) A description of the children on whom personally identifiable information is maintained, the types of information sought, the methods the State intends to use in gathering the information (including the sources from whom information is gathered), and the uses to be made of the information;
(3) A summary of the policies and procedures that participating agencies must follow regarding storage, disclosure to third parties, retention, and destruction of personally identifiable information; and
(4) A description of all of the rights of parents and children regarding this information, including the rights under the Family Educational Rights and Privacy Act of 1974 and implementing regulations in 34 CFR part 99.
(b) Before any major identification, location, or evaluation activity, the notice must be published or announced in newspapers or other media, or both, with circulation adequate to notify parents throughout the State of the activity.
(Authority: 20 U.S.C. 1412(a)(8), 1417(c))
§ 300.562 Access rights.
(a) Each participating agency shall permit parents to inspect and review any education records relating to their children that are collected, maintained, or used by the agency under this part. The agency shall comply with a request without unnecessary delay and before any meeting regarding an IEP, or any hearing pursuant to §§300.507 and 300.521–300.528, and in no case more than 45 days after the request has been made.
(b) The right to inspect and review education records under this section includes—
(1) The right to a response from the participating agency to reasonable requests for explanations and interpretations of the records;
(2) The right to request that the agency provide copies of the records containing the information if failure to provide those copies would effectively prevent the parent from exercising the right to inspect and review the records; and
(3) The right to have a representative of the parent inspect and review the records.
(c) An agency may presume that the parent has authority to inspect and review records relating to his or her child unless the agency has been advised that the parent does not have the authority under applicable State law governing such matters as guardianship, separation, and divorce.
(Authority: 20 U.S.C. 1412(a)(8), 1417(c))
§ 300.563 Record of access.
Each participating agency shall keep a record of parties obtaining access to education records collected, maintained, or used under Part B of the Act (except access by parents and authorized employees of the participating agency), including the name of the party, the date access was given, and the purpose for which the party is authorized to use the records.
(Authority: 20 U.S.C. 1412(a)(8), 1417(c))
§ 300.564 Records on more than one child.
If any education record includes information on more than one child, the parents of those children have the right to inspect and review only the information relating to their child or to be informed of that specific information.
(Authority: 20 U.S.C. 1412(a)(8), 1417(c))
§ 300.565 List of types and locations of information.
Each participating agency shall provide parents on request a list of the types and locations of education records collected, maintained, or used by the agency.
(Authority: 20 U.S.C. 1412(a)(8), 1417(c))
§ 300.566 Fees.
(a) Each participating agency may charge a fee for copies of records that are made for parents under this part if the fee does not effectively prevent the parents from exercising their right to inspect and review those records.
(b) A participating agency may not charge a fee to search for or to retrieve information under this part.
(Authority: 20 U.S.C. 1412(a)(8), 1417(c))
§ 300.567 Amendment of records at parent's request.
(a) A parent who believes that information in the education records collected, maintained, or used under this part is inaccurate or misleading or violates the privacy or other rights of the child may request the participating agency that maintains the information to amend the information.
(b) The agency shall decide whether to amend the information in accordance with the request within a reasonable period of time of receipt of the request.
(c) If the agency decides to refuse to amend the information in accordance with the request, it shall inform the parent of the refusal and advise the parent of the right to a hearing under §300.568.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
§ 300.568 Opportunity for a hearing.
The agency shall, on request, provide an opportunity for a hearing to challenge information in education records to ensure that it is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child.
(Authority: 20 U.S.C. 1412(a)(8), 1417(c))
§ 300.569 Result of hearing.
(a) If, as a result of the hearing, the agency decides that the information is inaccurate, misleading or otherwise in violation of the privacy or other rights of the child, it shall amend the information accordingly and so inform the parent in writing.
(b) If, as a result of the hearing, the agency decides that the information is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child, it shall inform the parent of the right to place in the records it maintains on the child a statement commenting on the information or setting forth any reasons for disagreeing with the decision of the agency.
(c) Any explanation placed in the records of the child under this section must—
(1) Be maintained by the agency as part of the records of the child as long as the record or contested portion is maintained by the agency; and
(2) If the records of the child or the contested portion is disclosed by the agency to any party, the explanation must also be disclosed to the party.
(Authority: 20 U.S.C. 1412(a)(8), 1417(c))
§ 300.570 Hearing procedures.
A hearing held under §300.568 must be conducted according to the procedures under 34 CFR 99.22.
(Authority: 20 U.S.C. 1412(a)(8), 1417(c))
§ 300.571 Consent.
(a) Except as to disclosures addressed in §300.529(b) for which parental consent is not required by Part 99, parental consent must be obtained before personally identifiable information is—
(1) Disclosed to anyone other than officials of participating agencies collecting or using the information under this part, subject to paragraph (b) of this section; or
(2) Used for any purpose other than meeting a requirement of this part.
(b) An educational agency or institution subject to 34 CFR part 99 may not release information from education records to participating agencies without parental consent unless authorized to do so under part 99.
(c) The SEA shall provide policies and procedures that are used in the event that a parent refuses to provide consent under this section.
(Authority: 20 U.S.C. 1412(a)(8), 1417(c))
§ 300.572 Safeguards.
(a) Each participating agency shall protect the confidentiality of personally identifiable information at collection, storage, disclosure, and destruction stages.
(b) One official at each participating agency shall assume responsibility for ensuring the confidentiality of any personally identifiable information.
(c) All persons collecting or using personally identifiable information must receive training or instruction regarding the State's policies and procedures under §300.127 and 34 CFR part 99.
(d) Each participating agency shall maintain, for public inspection, a current listing of the names and positions of those employees within the agency who may have access to personally identifiable information.
(Authority: 20 U.S.C. 1412(a)(8), 1417(c))
§ 300.573 Destruction of information.
(a) The public agency shall inform parents when personally identifiable information collected, maintained, or used under this part is no longer needed to provide educational services to the child.
(b) The information must be destroyed at the request of the parents. However, a permanent record of a student's name, address, and phone number, his or her grades, attendance record, classes attended, grade level completed, and year completed may be maintained without time limitation.
(Authority: 20 U.S.C. 1412(a)(8), 1417(c))
§ 300.574 Children's rights.
(a) The SEA shall provide policies and procedures regarding the extent to which children are afforded rights of privacy similar to those afforded to parents, taking into consideration the age of the child and type or severity of disability.
(b) Under the regulations for the Family Educational Rights and Privacy Act of 1974 (34 CFR 99.5(a)), the rights of parents regarding education records are transferred to the student at age 18.
(c) If the rights accorded to parents under Part B of the Act are transferred to a student who reaches the age of majority, consistent with §300.517, the rights regarding educational records in §§300.562–300.573 must also be transferred to the student. However, the public agency must provide any notice required under section 615 of the Act to the student and the parents.
(Authority: 20 U.S.C. 1412(a)(8), 1417(c))
§ 300.575 Enforcement.
The SEA shall provide the policies and procedures, including sanctions, that the State uses to ensure that its policies and procedures are followed and that the requirements of the Act and the regulations in this part are met.
(Authority: 20 U.S.C. 1412(a)(8), 1417(c))
§ 300.576 Disciplinary information.
(a) The State may require that a public agency include in the records of a child with a disability a statement of any current or previous disciplinary action that has been taken against the child and transmit the statement to the same extent that the disciplinary information is included in, and transmitted with, the student records of nondisabled children.
(b) The statement may include a description of any behavior engaged in by the child that required disciplinary action, a description of the disciplinary action taken, and any other information that is relevant to the safety of the child and other individuals involved with the child.
(c) If the State adopts such a policy, and the child transfers from one school to another, the transmission of any of the child's records must include both the child's current individualized education program and any statement of current or previous disciplinary action that has been taken against the child.
(Authority: 20 U.S.C. 1413(j))
§ 300.577 Department use of personally identifiable information.
If the Department or its authorized representatives collect any personally identifiable information regarding children with disabilities that is not subject to 5 U.S.C. 552a (the Privacy Act of 1974), the Secretary applies the requirements of 5 U.S.C. 552a (b)(1)–(2), (4)–(11); (c); (d); (e)(1), (2), (3)(A), (B), and (D), (5)–(10); (h); (m); and (n); and the regulations implementing those provisions in 34 CFR part 5b.
(Authority: 20 U.S.C. 1412(a)(8), 1417(c))
Department Procedures
§ 300.580 Determination by the Secretary that a State is eligible.
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.
(Authority: 20 U.S.C. 1412(d))
§ 300.581 Notice and hearing before determining that a State is not eligible.
(a) General. (1) 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 providing the State—
(i) With reasonable notice; and
(ii) With an opportunity for a hearing.
(2) In implementing paragraph (a)(1)(i) of this section, the Secretary sends a written notice to the SEA by certified mail with return receipt requested.
(b) Content of notice. In the written notice described in paragraph (a)(2) of this section, the Secretary—
(1) States the basis on which the Secretary proposes to make a final determination that the State is not eligible;
(2) May describe possible options for resolving the issues;
(3) Advises the SEA that it may request a hearing and that the request for a hearing must be made not later than 30 days after it receives the notice of the proposed final determination that the State is not eligible; and
(4) Provides information about the procedures followed for a hearing.
(Authority: 20 U.S.C. (1412(d)(2))
§ 300.582 Hearing official or panel.
(a) If the SEA requests a hearing, the Secretary designates one or more individuals, either from the Department or elsewhere, not responsible for or connected with the administration of this program, to conduct a hearing.
(b) If more than one individual is designated, the Secretary designates one of those individuals as the Chief Hearing Official of the Hearing Panel. If one individual is designated, that individual is the Hearing Official.
(Authority: 20 U.S.C. (1412(d)(2))
§ 300.583 Hearing procedures.
(a) As used in §§300.581–300.586 the term party or parties means the following:
(1) An SEA that requests a hearing regarding the proposed disapproval of the State's eligibility under this part.
(2) The Department official who administers the program of financial assistance under this part.
(3) A person, group or agency with an interest in and having relevant information about the case that has applied for and been granted leave to intervene by the Hearing Official or Panel.
(b) Within 15 days after receiving a request for a hearing, the Secretary designates a Hearing Official or Panel and notifies the parties.
(c) The Hearing Official or Panel may regulate the course of proceedings and the conduct of the parties during the proceedings. The Hearing Official or Panel takes all steps necessary to conduct a fair and impartial proceeding, to avoid delay, and to maintain order, including the following:
(1) The Hearing Official or Panel may hold conferences or other types of appropriate proceedings to clarify, simplify, or define the issues or to consider other matters that may aid in the disposition of the case.
(2) The Hearing Official or Panel may schedule a prehearing conference of the Hearing Official or Panel and parties.
(3) Any party may request the Hearing Official or Panel to schedule a prehearing or other conference. The Hearing Official or Panel decides whether a conference is necessary and notifies all parties.
(4) At a prehearing or other conference, the Hearing Official or Panel and the parties may consider subjects such as—
(i) Narrowing and clarifying issues;
(ii) Assisting the parties in reaching agreements and stipulations;
(iii) Clarifying the positions of the parties;
(iv) Determining whether an evidentiary hearing or oral argument should be held; and
(v) Setting dates for—
(A) The exchange of written documents;
(B) The receipt of comments from the parties on the need for oral argument or evidentiary hearing;
(C) Further proceedings before the Hearing Official or Panel (including an evidentiary hearing or oral argument, if either is scheduled);
(D) Requesting the names of witnesses each party wishes to present at an evidentiary hearing and estimation of time for each presentation; or
(E) Completion of the review and the initial decision of the Hearing Official or Panel.
(5) A prehearing or other conference held under paragraph (b)(4) of this section may be conducted by telephone conference call.
(6) At a prehearing or other conference, the parties shall be prepared to discuss the subjects listed in paragraph (b)(4) of this section.
(7) Following a prehearing or other conference the Hearing Official or Panel may issue a written statement describing the issues raised, the action taken, and the stipulations and agreements reached by the parties.
(d) The Hearing Official or Panel may require parties to state their positions and to provide all or part of the evidence in writing.
(e) The Hearing Official or Panel may require parties to present testimony through affidavits and to conduct cross-examination through interrogatories.
(f) The Hearing Official or Panel may direct the parties to exchange relevant documents or information and lists of witnesses, and to send copies to the Hearing Official or Panel.
(g) The Hearing Official or Panel may receive, rule on, exclude, or limit evidence at any stage of the proceedings.
(h) The Hearing Official or Panel may rule on motions and other issues at any stage of the proceedings.
(i) The Hearing Official or Panel may examine witnesses.
(j) The Hearing Official or Panel may set reasonable time limits for submission of written documents.
(k) The Hearing Official or Panel may refuse to consider documents or other submissions if they are not submitted in a timely manner unless good cause is shown.
(l) The Hearing Official or Panel may interpret applicable statutes and regulations but may not waive them or rule on their validity.
(m)(1) The parties shall present their positions through briefs and the submission of other documents and may request an oral argument or evidentiary hearing. The Hearing Official or Panel shall determine whether an oral argument or an evidentiary hearing is needed to clarify the positions of the parties.
(2) The Hearing Official or Panel gives each party an opportunity to be represented by counsel.
(n) If the Hearing Official or Panel determines that an evidentiary hearing would materially assist the resolution of the matter, the Hearing Official or Panel gives each party, in addition to the opportunity to be represented by counse—
(1) An opportunity to present witnesses on the party's behalf; and
(2) An opportunity to cross-examine witnesses either orally or with written questions.
(o) The Hearing Official or Panel accepts any evidence that it finds is relevant and material to the proceedings and is not unduly repetitious.
(p)(1) The Hearing Official or Panel—
(i) Arranges for the preparation of a transcript of each hearing;
(ii) Retains the original transcript as part of the record of the hearing; and
(iii) Provides one copy of the transcript to each party.
(2) Additional copies of the transcript are available on request and with payment of the reproduction fee.
(q) Each party shall file with the Hearing Official or Panel all written motions, briefs, and other documents and shall at the same time provide a copy to the other parties to the proceedings.
(Authority: 20 U.S.C. (1412(d)(2))
§ 300.584 Initial decision; final decision.
(a) The Hearing Official or Panel prepares an initial written decision that addresses each of the points in the notice sent by the Secretary to the SEA under §300.581.
(b) The initial decision of a Panel is made by a majority of Panel members.
(c) The Hearing Official or Panel mails by certified mail with return receipt requested a copy of the initial decision to each party (or to the party's counsel) and to the Secretary, with a notice stating that each party has an opportunity to submit written comments regarding the decision to the Secretary.
(d) Each party may file comments and recommendations on the initial decision with the Hearing Official or Panel within 15 days of the date the party receives the Panel's decision.
(e) The Hearing Official or Panel sends a copy of a party's initial comments and recommendations to the other parties by certified mail with return receipt requested. Each party may file responsive comments and recommendations with the Hearing Official or Panel within seven days of the date the party receives the initial comments and recommendations.
(f) The Hearing Official or Panel forwards the parties' initial and responsive comments on the initial decision to the Secretary who reviews the initial decision and issues a final decision.
(g) The initial decision of the Hearing Official or Panel becomes the final decision of the Secretary unless, within 25 days after the end of the time for receipt of written comments, the Secretary informs the Hearing Official or Panel and the parties to a hearing in writing that the decision is being further reviewed for possible modification.
(h) The Secretary may reject or modify the initial decision of the Hearing Official or Panel if the Secretary finds that it is clearly erroneous.
(i) The Secretary conducts the review based on the initial decision, the written record, the Hearing Official's or Panel's proceedings, and written comments. The Secretary may remand the matter for further proceedings.
(j) The Secretary issues the final decision within 30 days after notifying the Hearing Official or Panel that the initial decision is being further reviewed.
(Authority: 20 U.S.C. (1412(d)(2))
§ 300.585 Filing requirements.
(a) Any written submission under §§300.581–300.585 must be filed by hand-delivery, by mail, or by facsimile transmission. The Secretary discourages the use of facsimile transmission for documents longer than five pages.
(b) The filing date under paragraph (a) of this section is the date the document is—
(1) Hand-delivered;
(2) Mailed; or (3) Sent by facsimile transmission.
(c) A party filing by facsimile transmission is responsible for confirming that a complete and legible copy of the document was received by the Department.
(d) If a document is filed by facsimile transmission, the Secretary, the Hearing Official, or the Panel, as applicable, may require the filing of a follow-up hard copy by hand-delivery or by mail within a reasonable period of time.
(e) If agreed upon by the parties, service of a document may be made upon the other party by facsimile transmission.
(Authority: 20 U.S.C. 1413(c))
§ 300.586 Judicial review.
If a State is dissatisfied with the Secretary's final action with respect to the eligibility of the State under section 612 of the Act, the State may, not later than 60 days after notice of that action, file with the United States Court of Appeals for the circuit in which that State is located a petition for review of that action. A copy of the petition must be forthwith transmitted by the clerk of the court to the Secretary. The Secretary then files in the court the record of the proceedings upon which the Secretary's action was based, as provided in section 2112 of title 28, United States Code.
(Authority: 20 U.S.C. 1416(b))
§ 300.587 Enforcement.
(a) General. The Secretary initiates an action described in paragraph (b) of this section if the Secretary finds—
(1) That there has been a failure by the State to comply substantially with any provision of Part B of the Act, this part, or 34 CFR part 301; or
(2) That there is a failure to comply with any condition of an LEA's or SEA's eligibility under Part B of the Act, this part or 34 CFR part 301, including the terms of any agreement to achieve compliance with Part B of the Act, this part, or Part 301 within the timelines specified in the agreement.
(b) Types of action. The Secretary, after notifying the SEA (and any LEA or State agency affected by a failure described in paragraph (a)(2) of this section)—
(1) Withholds in whole or in part any further payments to the State under Part B of the Act;
(2) Refers the matter to the Department of Justice for enforcement; or
(3) Takes any other enforcement action authorized by law.
(c) Nature of withholding. (1) If the Secretary determines that it is appropriate to withhold further payments under paragraph (b)(1) of this section, the Secretary may determine that the withholding will be limited to programs or projects, or portions thereof, affected by the failure, or that the SEA shall not make further payments under Part B of the Act to specified LEA or State agencies affected by the failure.
(2) Until the Secretary is satisfied that there is no longer any failure to comply with the provisions of Part B of the Act, this part, or 34 CFR part 301, as specified in paragraph (a) of this section, payments to the State under Part B of the Act are withheld in whole or in part, or payments by the SEA under Part B of the Act are limited to local educational agencies and State agencies whose actions did not cause or were not involved in the failure, as the case may be.
(3) Any SEA, LEA, or other State agency that has received notice under paragraph (a) of this section shall, by means of a public notice, take such measures as may be necessary to bring the pendency of an action pursuant to this subsection to the attention of the public within the jurisdiction of that agency.
(4) Before withholding under paragraph (b)(1) of this section, the Secretary provides notice and a hearing pursuant to the procedures in §§300.581–300.586.
(d) Referral for appropriate enforcement. (1) Before the Secretary makes a referral under paragraph (b)(2) of this section for enforcement, or takes any other enforcement action authorized by law under paragraph (b)(3), the Secretary provides the State—
(i) With reasonable notice; and
(ii) With an opportunity for a hearing.
(2) The hearing described in paragraph (d)(1)(ii) of this section consists of an opportunity to meet with the Assistant Secretary for the Office of Special Education and Rehabilitative Services to demonstrate why the Department should not make a referral for enforcement.
(e) Divided State agency responsibility. For purposes of this part, if responsibility for ensuring that the requirements of this part are met with respect to children with disabilities who are convicted as adults under State law and incarcerated in adult prisons is assigned to a public agency other than the SEA pursuant to §300.600(d), and if the Secretary finds that the failure to comply substantially with the provisions of Part B of the Act or this part are related to a failure by the public agency, the Secretary takes one of the enforcement actions described in paragraph (b) of this section to ensure compliance with Part B of the Act and this part, except—
(1) Any reduction or withholding of payments to the State under paragraph (b)(1) of this section is proportionate to the total funds allotted under section 611 of the Act to the State as the number of eligible children with disabilities in adult prisons under the supervision of the other public agency is proportionate to the number of eligible individuals with disabilities in the State under the supervision of the State educational agency; and
(2) Any withholding of funds under paragraph (e)(1) of this section is limited to the specific agency responsible for the failure to comply with Part B of the Act or this part.
(Authority: 20 U.S.C. 1416)
§ 300.588 [Reserved]
§ 300.589 Waiver of requirement regarding supplementing and not supplanting with Part B funds.
(a) Except as provided under §§300.232–300.235, funds paid to a State under Part B of the Act must be used to supplement and increase the level of Federal, State, and local funds (including funds that are not under the direct control of SEAs 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 those Federal, State, and local funds. A State may use funds it retains under §300.602 without regard to the prohibition on supplanting other funds (see §300.372).
(b) If a State provides clear and convincing evidence that all eligible children with disabilities throughout the State have FAPE available to them, the Secretary may waive for a period of one year in whole or in part the requirement under §300.153 (regarding State-level nonsupplanting) if the Secretary concurs with the evidence provided by the State.
(c) If a State wishes to request a waiver under this section, it must submit to the Secretary a written request that includes—
(1) An assurance that FAPE is currently available, and will remain available throughout the period that a waiver would be in effect, to all eligible children with disabilities throughout the State, regardless of the public agency that is responsible for providing FAPE to them. The assurance must be signed by an official who has the authority to provide that assurance as it applies to all eligible children with disabilities in the State;
(2) All evidence that the State wishes the Secretary to consider in determining whether all eligible children with disabilities have FAPE available to them, setting forth in detail—
(i) The basis on which the State has concluded that FAPE is available to all eligible children in the State; and
(ii) The procedures that the State will implement to ensure that FAPE remains available to all eligible children in the State, which must include—
(A) The State's procedures under §300.125 for ensuring that all eligible children are identified, located and evaluated;
(B) The State's procedures for monitoring public agencies to ensure that they comply with all requirements of this part;
(C) The State's complaint procedures under §§300.660–300.662; and
(D) The State's hearing procedures under §§300.507–300.511 and 300.520–300.528;
(3) A summary of all State and Federal monitoring reports, and State complaint decisions (see §§300.660–300.662) and hearing decisions (see §§300.507–300.511 and 300.520–300.528), issued within three years prior to the date of the State's request for a waiver under this section, that includes any finding that FAPE has not been available to one or more eligible children, and evidence that FAPE is now available to all children addressed in those reports or decisions; and
(4) Evidence that the State, in determining that FAPE is currently available to all eligible children with disabilities in the State, has consulted with the State advisory panel under §300.650, the State's parent training and information center or centers, the State's protection and advocacy organization, and other organizations representing the interests of children with disabilities and their parents, and a summary of the input of these organizations.
(d) If the Secretary determines that the request and supporting evidence submitted by the State makes a prima facie showing that FAPE is, and will remain, available to all eligible children with disabilities in the State, the Secretary, after notice to the public throughout the State, conducts a public hearing at which all interested persons and organizations may present evidence regarding the following issues:
(1) Whether FAPE is currently available to all eligible children with disabilities in the State.
(2) Whether the State will be able to ensure that FAPE remains available to all eligible children with disabilities in the State if the Secretary provides the requested waiver.
(e) Following the hearing, the Secretary, based on all submitted evidence, will provide a waiver, in whole or in part, for a period of one year if the Secretary finds that the State has provided clear and convincing evidence that FAPE is currently available to all eligible children with disabilities in the State, and the State will be able to ensure that FAPE remains available to all eligible children with disabilities in the State if the Secretary provides the requested waiver.
(f) A State may receive a waiver of the requirement of section 612(a)(19)(A) and §300.154(a) if it satisfies the requirements of paragraphs (b) through (e) of this section.
(g) The Secretary may grant subsequent waivers for a period of one year each, if the Secretary determines that the State has provided clear and convincing evidence that all eligible children with disabilities throughout the State have, and will continue to have throughout the one-year period of the waiver, FAPE available to them.
(Authority: 20 U.S.C. 1412(a)(18)(C), (19)(C)(ii) and (E))
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