Title 34: Education
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PART 300—ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH DISABILITIES
Section Contents
Subpart A—General
Purposes, Applicability, and Regulations That Apply to This Program
§ 300.1 Purposes.
§ 300.2 Applicability of this part to State, local, and private agencies.
§ 300.3 Regulations that apply.
Definitions Used in This Part
§ 300.4 Act.
§ 300.5 Assistive technology device.
§ 300.6 Assistive technology service.
§ 300.7 Child with a disability.
§ 300.8 Consent.
§ 300.9 Day; business day; school day.
§ 300.10 Educational service agency.
§ 300.11 Equipment.
§ 300.12 Evaluation.
§ 300.13 Free appropriate public education.
§ 300.14 Include.
§ 300.15 Individualized education program.
§ 300.16 Individualized education program team.
§ 300.17 Individualized family service plan.
§ 300.18 Local educational agency.
§ 300.19 Native language.
§ 300.20 Parent.
§ 300.21 Personally identifiable
§ 300.22 Public agency.
§ 300.23 Qualified personnel.
§ 300.24 Related services.
§ 300.25 Secondary school.
§ 300.26 Special education.
§ 300.27 State.
§ 300.28 Supplementary aids and services.
§ 300.29 Transition services.
§ 300.30 Definitions in EDGAR.
Subpart B—State and Local Eligibility
State Eligibility—General
§ 300.110 Condition of assistance.
§ 300.111 Exception for prior State policies and procedures on file with the Secretary.
§ 300.112 Amendments to State policies and procedures.
§ 300.113 Approval by the Secretary.
§§ 300.114-300.120 [Reserved]
State Eligibility—Specific Conditions
§ 300.121 Free appropriate public education (FAPE).
§ 300.122 Exception to FAPE for certain ages.
§ 300.123 Full educational opportunity goal (FEOG).
§ 300.124 FEOG—timetable.
§ 300.125 Child find.
§ 300.126 Procedures for evaluation and determination of eligibility.
§ 300.127 Confidentiality of personally identifiable information.
§ 300.128 Individualized education programs.
§ 300.129 Procedural safeguards.
§ 300.130 Least restrictive environment.
§ 300.131 [Reserved]
§ 300.132 Transition of children from Part C to preschool programs.
§ 300.133 Children in private schools.
§ 300.134 [Reserved]
§ 300.135 Comprehensive system of personnel development.
§ 300.136 Personnel standards.
§ 300.137 Performance goals and indicators.
§ 300.138 Participation in assessments.
§ 300.139 Reports relating to assessments.
§ 300.140 [Reserved]
§ 300.141 SEA responsibility for general supervision.
§ 300.142 Methods of ensuring services.
§ 300.143 SEA implementation of procedural safeguards.
§ 300.144 Hearings relating to LEA eligibility.
§ 300.145 Recovery of funds for misclassified children.
§ 300.146 Suspension and expulsion rates.
§ 300.147 Additional information if SEA provides direct services.
§ 300.148 Public participation.
§ 300.149 [Reserved]
§ 300.150 State advisory panel.
§ 300.151 [Reserved]
§ 300.152 Prohibition against commingling.
§ 300.153 State-level nonsupplanting.
§ 300.154 Maintenance of State financial support.
§ 300.155 Policies and procedures for use of Part B funds.
§ 300.156 Annual description of use of Part B funds.
LEA and State Agency Eeligibility—General
§ 300.180 Condition of assistance.
§ 300.181 Exception for prior LEA or State agency policies and procedures on file with the SEA.
§ 300.182 Amendments to LEA policies and procedures.
§ 300.183 [Reserved]
§ 300.184 Excess cost requirement.
§ 300.185 Meeting the excess cost requirement.
§§ 300.186-300.189 [Reserved]
§ 300.190 Joint establishment of eligibility.
§ 300.191 [Reserved]
§ 300.192 Requirements for establishing eligibility.
§ 300.193 [Reserved]
§ 300.194 State agency eligibility.
§ 300.195 [Reserved]
§ 300.196 Notification of LEA or State agency in case of ineligibility.
§ 300.197 LEA and State agency compliance.
LEA and State Agency Eligibility—Specific Conditions
§ 300.220 Consistency with State policies.
§ 300.221 Implementation of CSPD.
§§ 300.222-300.229 [Reserved]
§ 300.230 Use of amounts.
§ 300.231 Maintenance of effort.
§ 300.232 Exception to maintenance of effort.
§ 300.233 Treatment of Federal funds in certain fiscal years.
§ 300.234 Schoolwide programs under title I of the ESEA.
§ 300.235 Permissive use of funds.
§§ 300.236-300.239 [Reserved]
§ 300.240 Information for SEA.
§ 300.241 Treatment of charter schools and their students.
§ 300.242 Public information.
§ 300.243 [Reserved]
§ 300.244 Coordinated services system.
School-Based Improvement Plan
§ 300.245 School-based improvement plan.
§ 300.246 Plan requirements.
§ 300.247 Responsibilities of the LEA.
§ 300.248 Limitation.
§ 300.249 Additional requirements.
§ 300.250 Extension of plan.
Secretary of the Interior—Eligibility
§ 300.260 Submission of information.
§ 300.261 Public participation.
§ 300.262 Use of Part B funds.
§ 300.263 Plan for coordination of services.
§ 300.264 Definitions.
§ 300.265 Establishment of advisory board.
§ 300.266 Annual report by advisory board.
§ 300.267 Applicable regulations.
Public Participation
§ 300.280 Public hearings before adopting State policies and procedures.
§ 300.281 Notice.
§ 300.282 Opportunity to participate; comment period.
§ 300.283 Review of public comments before adopting policies and procedures.
§ 300.284 Publication and availability of approved policies and procedures.
Subpart C—Services
Free Appropriate Public Education
§ 300.300 Provision of FAPE.
§ 300.301 FAPE—methods and payments.
§ 300.302 Residential placement.
§ 300.303 Proper functioning of hearing aids.
§ 300.304 Full educational opportunity goal.
§ 300.305 Program options.
§ 300.306 Nonacademic services.
§ 300.307 Physical education.
§ 300.308 Assistive technology.
§ 300.309 Extended school year services.
§ 300.310 [Reserved]
§ 300.311 FAPE requirements for students with disabilities in adult prisons.
§ 300.312 Children with disabilities in public charter schools.
§ 300.313 Children experiencing developmental delays.
Evaluations and Reevaluations
§ 300.320 Initial evaluations.
§ 300.321 Reevaluations.
§§ 300.322-300.324 [Reserved]
Individualized Education Programs
§ 300.340 Definitions related to IEPs.
§ 300.341 Responsibility of SEA and other public agencies for IEPs.
§ 300.342 When IEPs must be in effect.
§ 300.343 IEP meetings.
§ 300.344 IEP team.
§ 300.345 Parent participation.
§ 300.346 Development, review, and revision of IEP.
§ 300.347 Content of IEP.
§ 300.348 Agency responsibilities for transition services.
§ 300.349 Private school placements by public agencies.
§ 300.350 IEP—accountability.
Direct Services by the Sea
§ 300.360 Use of LEA allocation for direct services.
§ 300.361 Nature and location of services.
§§ 300.362-300.369 [Reserved]
§ 300.370 Use of SEA allocations.
§ 300.371 [Reserved]
§ 300.372 Nonapplicability of requirements that prohibit commingling and supplanting of funds.
Comprehensive System of Personnel Development (CSPD)
§ 300.380 General CSPD requirements.
§ 300.381 Adequate supply of qualified personnel.
§ 300.382 Improvement strategies.
§§ 300.383-300.387 [Reserved]
Subpart D—Children in Private Schools
Children With Disabilities in Private Schools Placed or Referred by Public Agencies
§ 300.400 Applicability of §§300.400–300.402.
§ 300.401 Responsibility of State educational agency.
§ 300.402 Implementation by State educational agency.
Children With Disabilities Enrolled by Their Parents in Private Schools When FAPE Is at Issue
§ 300.403 Placement of children by parents if FAPE is at issue.
Children With Disabilities Enrolled by Their Parents in Private Schools
§ 300.450 Definition of “private school children with disabilities.”
§ 300.451 Child find for private school children with disabilities.
§ 300.452 Provision of services—basic requirement.
§ 300.453 Expenditures.
§ 300.454 Services determined.
§ 300.455 Services provided.
§ 300.456 Location of services; transportation.
§ 300.457 Complaints.
§ 300.458 Separate classes prohibited.
§ 300.459 Requirement that funds not benefit a private school.
§ 300.460 Use of public school personnel.
§ 300.461 Use of private school personnel.
§ 300.462 Requirements concerning property, equipment, and supplies for the benefit of private school children with disabilities.
Procedures for By-Pass
§ 300.480 By-pass—general.
§ 300.481 Provisions for services under a by-pass.
§ 300.482 Notice of intent to implement a by-pass.
§ 300.483 Request to show cause.
§ 300.484 Show cause hearing.
§ 300.485 Decision.
§ 300.486 Filing requirements.
§ 300.487 Judicial review.
Subpart E—Procedural Safeguards
Due Process Procedures for Parents and Children
§ 300.500 General responsibility of public agencies; definitions.
§ 300.501 Opportunity to examine records; parent participation in meetings.
§ 300.502 Independent educational evaluation.
§ 300.503 Prior notice by the public agency; content of notice.
§ 300.504 Procedural safeguards notice.
§ 300.505 Parental consent.
§ 300.506 Mediation.
§ 300.507 Impartial due process hearing; parent notice.
§ 300.508 Impartial hearing officer.
§ 300.509 Hearing rights.
§ 300.510 Finality of decision; appeal; impartial review.
§ 300.511 Timelines and convenience of hearings and reviews.
§ 300.512 Civil action.
§ 300.513 Attorneys' fees.
§ 300.514 Child's status during proceedings.
§ 300.515 Surrogate parents.
§ 300.516 [Reserved]
§ 300.517 Transfer of parental rights at age of majority.
Discipline Procedures
§ 300.519 Change of placement for disciplinary removals.
§ 300.520 Authority of school personnel.
§ 300.521 Authority of hearing officer.
§ 300.522 Determination of setting.
§ 300.523 Manifestation determination review.
§ 300.524 Determination that behavior was not manifestation of disability.
§ 300.525 Parent appeal.
§ 300.526 Placement during appeals.
§ 300.527 Protections for children not yet eligible for special education and related services.
§ 300.528 Expedited due process hearings.
§ 300.529 Referral to and action by law enforcement and judicial authorities.
Procedures for Evaluation and Determination of Eligibility
§ 300.530 General.
§ 300.531 Initial evaluation.
§ 300.532 Evaluation procedures.
§ 300.533 Determination of needed evaluation data.
§ 300.534 Determination of eligibility.
§ 300.535 Procedures for determining eligibility and placement.
§ 300.536 Reevaluation.
Additional Procedures for Evaluating Children With Specific Learning Disabilities
§ 300.540 Additional team members.
§ 300.541 Criteria for determining the existence of a specific learning disability.
§ 300.542 Observation.
§ 300.543 Written report.
Least Restrictive Environment (LRE)
§ 300.550 General LRE requirements.
§ 300.551 Continuum of alternative placements.
§ 300.552 Placements.
§ 300.553 Nonacademic settings.
§ 300.554 Children in public or private institutions.
§ 300.555 Technical assistance and training activities.
§ 300.556 Monitoring activities.
Confidentiality of Information
§ 300.560 Definitions.
§ 300.561 Notice to parents.
§ 300.562 Access rights.
§ 300.563 Record of access.
§ 300.564 Records on more than one child.
§ 300.565 List of types and locations of information.
§ 300.566 Fees.
§ 300.567 Amendment of records at parent's request.
§ 300.568 Opportunity for a hearing.
§ 300.569 Result of hearing.
§ 300.570 Hearing procedures.
§ 300.571 Consent.
§ 300.572 Safeguards.
§ 300.573 Destruction of information.
§ 300.574 Children's rights.
§ 300.575 Enforcement.
§ 300.576 Disciplinary information.
§ 300.577 Department use of personally identifiable information.
Department Procedures
§ 300.580 Determination by the Secretary that a State is eligible.
§ 300.581 Notice and hearing before determining that a State is not eligible.
§ 300.582 Hearing official or panel.
§ 300.583 Hearing procedures.
§ 300.584 Initial decision; final decision.
§ 300.585 Filing requirements.
§ 300.586 Judicial review.
§ 300.587 Enforcement.
§ 300.588 [Reserved]
§ 300.589 Waiver of requirement regarding supplementing and not supplanting with Part B funds.
Subpart F—State Administration
General
§ 300.600 Responsibility for all educational programs.
§ 300.601 Relation of Part B to other Federal programs.
§ 300.602 State-level activities.
Use of Funds
§ 300.620 Use of funds for State administration.
§ 300.621 Allowable costs.
§ 300.622 Subgrants to LEAs for capacity-building and improvement.
§ 300.623 Amount required for subgrants to LEAs.
§ 300.624 State discretion in awarding subgrants.
State Advisory Panel
§ 300.650 Establishment of advisory panels.
§ 300.651 Membership.
§ 300.652 Advisory panel functions.
§ 300.653 Advisory panel procedures.
State Complaint Procedures
§ 300.660 Adoption of State complaint procedures.
§ 300.661 Minimum State complaint procedures.
§ 300.662 Filing a complaint.
Subpart G—Allocation of Funds; Reports
Allocations
§ 300.700 Special definition of the term “State”.
§ 300.701 Grants to States.
§ 300.702 Definition.
§ 300.703 Allocations to States.
§§ 300.704-300.705 [Reserved]
§ 300.706 Permanent formula.
§ 300.707 Increase in funds.
§ 300.708 Limitation.
§ 300.709 Decrease in funds.
§ 300.710 Allocation for State in which by-pass is implemented for private school children with disabilities.
§ 300.711 Subgrants to LEAs.
§ 300.712 Allocations to LEAs.
§ 300.713 Former Chapter 1 State agencies.
§ 300.714 Reallocation of LEA funds.
§ 300.715 Payments to the Secretary of the Interior for the education of Indian children.
§ 300.716 Payments for education and services for Indian children with disabilities aged 3 through 5.
§ 300.717 Outlying areas and freely associated States.
§ 300.718 Outlying area—definition.
§ 300.719 Limitation for freely associated States.
§ 300.720 Special rule.
§ 300.721 [Reserved]
§ 300.722 Definition.
Reports
§ 300.750 Annual report of children served—report requirement.
§ 300.751 Annual report of children served—information required in the report.
§ 300.752 Annual report of children served—certification.
§ 300.753 Annual report of children served—criteria for counting children.
§ 300.754 Annual report of children served—other responsibilities of the SEA.
§ 300.755 Disproportionality.
§ 300.756 Acquisition of equipment; construction or alteration of facilities.
Appendix A to Part 300—Notice of Interpretation
Appendix B to Part 300—Index for IDEA—Part B Regulations (34 CFR Part 300)
Appendix C to Part 300;—Implementation of the 20 Percebt Rule Under §300.233
Appendix D to Part 300—National Instructional Materials Accessibility Standard (NIMAS)
Authority: 20 U.S.C. 1411–1420, unless otherwise noted.
Source: 64 FR 12418, Mar. 12, 1999, unless otherwise noted.
Subpart A—General
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Purposes, Applicability, and Regulations That Apply to This Program
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§ 300.1 Purposes.
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The purposes of this part are—
(a) To ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living;
(b) To ensure that the rights of children with disabilities and their parents are protected;
(c) To assist States, localities, educational service agencies, and Federal agencies to provide for the education of all children with disabilities; and
(d) To assess and ensure the effectiveness of efforts to educate children with disabilities.
(Authority: 20 U.S.C. 1400 note)
§ 300.2 Applicability of this part to State, local, and private agencies.
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(a) States. This part applies to each State that receives payments under Part B of the Act.
(b) Public agencies within the State. The provisions of this part—
(1) Apply to all political subdivisions of the State that are involved in the education of children with disabilities, including—
(i) The State educational agency (SEA);
(ii) Local educational agencies (LEAs), educational service agencies (ESAs), and public charter schools that are not otherwise included as LEAs or ESAs and are not a school of an LEA or ESA;
(iii) Other State agencies and schools (such as Departments of Mental Health and Welfare and State schools for children with deafness or children with blindness); and
(iv) State and local juvenile and adult correctional facilities; and
(2) Are binding on each public agency in the State that provides special education and related services to children with disabilities, regardless of whether that agency is receiving funds under Part B.
(c) Private schools and facilities. Each public agency in the State is responsible for ensuring that the rights and protections under Part B of the Act are given to children with disabilities—
(1) Referred to or placed in private schools and facilities by that public agency; or
(2) Placed in private schools by their parents under the provisions of §300.403(c).
(Authority: 20 U.S.C. 1412)
§ 300.3 Regulations that apply.
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The following regulations apply to this program:
(a) 34 CFR part 76 (State-Administered Programs) except for §§76.125–76.137 and 76.650–76.662.
(b) 34 CFR part 77 (Definitions).
(c) 34 CFR part 79 (Intergovernmental Review of Department of Education Programs and Activities).
(d) 34 CFR part 80 (Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments).
(e) 34 CFR part 81 (General Education Provisions Act—Enforcement).
(f) 34 CFR part 82 (New Restrictions on Lobbying).
(g) 34 CFR part 85 (Government-wide Debarment and Suspension (Nonprocurement) and Government-wide Requirements for Drug-Free Workplace (Grants)).
(h) The regulations in this part—34 CFR part 300 (Assistance for Education of Children with Disabilities).
(Authority: 20 U.S.C. 1221e–3(a)(1))
Definitions Used in This Part
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§ 300.4 Act.
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As used in this part, Act means the Individuals with Disabilities Education Act (IDEA), as amended.
(Authority: 20 U.S.C. 1400(a))
§ 300.5 Assistive technology device.
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As used in this part, Assistive technology device means any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of a child with a disability.
(Authority: 20 U.S.C. 1401(1))
§ 300.6 Assistive technology service.
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As used in this part, Assistive technology service means any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device.
The term includes—
(a) The evaluation of the needs of a child with a disability, including a functional evaluation of the child in the child's customary environment;
(b) Purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by children with disabilities;
(c) Selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices;
(d) Coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs;
(e) Training or technical assistance for a child with a disability or, if appropriate, that child's family; and
(f) Training or technical assistance for professionals (including individuals providing education or rehabilitation services), employers, or other individuals who provide services to, employ, or are otherwise substantially involved in the major life functions of that child.
(Authority: 20 U.S.C. 1401(2))
§ 300.7 Child with a disability.
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(a) General. (1) As used in this part, the term child with a disability means a child evaluated in accordance with §§300.530–300.536 as having mental retardation, a hearing impairment including deafness, a speech or language impairment, a visual impairment including blindness, serious emotional disturbance (hereafter referred to as emotional disturbance), an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities, and who, by reason thereof, needs special education and related services.
(2)(i) Subject to paragraph (a)(2)(ii) of this section, if it is determined, through an appropriate evaluation under §§300.530–300.536, that a child has one of the disabilities identified in paragraph (a)(1) of this section, but only needs a related service and not special education, the child is not a child with a disability under this part.
(ii) If, consistent with §300.26(a)(2), the related service required by the child is considered special education rather than a related service under State standards, the child would be determined to be a child with a disability under paragraph (a)(1) of this section.
(b) Children aged 3 through 9 experiencing developmental delays. The term child with a disability for children aged 3 through 9 may, at the discretion of the State and LEA and in accordance with §300.313, include a child—
(1) Who is experiencing developmental delays, as defined by the State and as measured by appropriate diagnostic instruments and procedures, in one or more of the following areas: physical development, cognitive development, communication development, social or emotional development, or adaptive development; and
(2) Who, by reason thereof, needs special education and related services.
(c) Definitions of disability terms. The terms used in this definition are defined as follows:
(1)(i) Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a child's educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a child's educational performance is adversely affected primarily because the child has an emotional disturbance, as defined in paragraph (b)(4) of this section.
(ii) A child who manifests the characteristics of “autism” after age 3 could be diagnosed as having “autism” if the criteria in paragraph (c)(1)(i) of this section are satisfied.
(2) Deaf-blindness means concomitant hearing and visual impairments, the combination of which causes such severe communication and other developmental and educational needs that they cannot be accommodated in special education programs solely for children with deafness or children with blindness.
(3) Deafness means a hearing impairment that is so severe that the child is impaired in processing linguistic information through hearing, with or without amplification, that adversely affects a child's educational performance.
(4) Emotional disturbance is defined as follows:
(i) The term means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child's educational performance:
(A) An inability to learn that cannot be explained by intellectual, sensory, or health factors.
(B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.
(C) Inappropriate types of behavior or feelings under normal circumstances.
(D) A general pervasive mood of unhappiness or depression.
(E) A tendency to develop physical symptoms or fears associated with personal or school problems.
(ii) The term includes schizophrenia. The term does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance.
(5) Hearing impairment means an impairment in hearing, whether permanent or fluctuating, that adversely affects a child's educational performance but that is not included under the definition of deafness in this section.
(6) Mental retardation means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a child's educational performance.
(7) Multiple disabilities means concomitant impairments (such as mental retardation-blindness, mental retardation-orthopedic impairment, etc.), the combination of which causes such severe educational needs that they cannot be accommodated in special education programs solely for one of the impairments. The term does not include deaf-blindness.
(8) Orthopedic impairment means a severe orthopedic impairment that adversely affects a child's educational performance. The term includes impairments caused by congenital anomaly (e.g., clubfoot, absence of some member, etc.), impairments caused by disease (e.g., poliomyelitis, bone tuberculosis, etc.), and impairments from other causes (e.g., cerebral palsy, amputations, and fractures or burns that cause contractures).
(9) Other health impairment means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that—
(i) Is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, and sickle cell anemia; and
(ii) Adversely affects a child's educational performance.
(10) Specific learning disability is defined as follows:
(i) General. The term means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.
(ii) Disorders not included. The term does not include learning problems that are primarily the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage.
(11) Speech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment, or a voice impairment, that adversely affects a child's educational performance.
(12) Traumatic brain injury means an acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability or psychosocial impairment, or both, that adversely affects a child's educational performance. The term applies to open or closed head injuries resulting in impairments in one or more areas, such as cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem-solving; sensory, perceptual, and motor abilities; psychosocial behavior; physical functions; information processing; and speech. The term does not apply to brain injuries that are congenital or degenerative, or to brain injuries induced by birth trauma.
(13) Visual impairment including blindness means an impairment in vision that, even with correction, adversely affects a child's educational performance. The term includes both partial sight and blindness.
(Authority: 20 U.S.C. 1401(3)(A) and (B); 1401(26))
§ 300.8 Consent.
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As used in this part, the term consent has the meaning given that term in §300.500(b)(1).
(Authority: 20 U.S.C. 1415(a))
§ 300.9 Day; business day; school day.
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As used in this part, the term—
(a) Day means calendar day unless otherwise indicated as business day or school day;
(b) Business day means Monday through Friday, except for Federal and State holidays (unless holidays are specifically included in the designation of business day, as in §300.403(d)(1)(ii)); and
(c)(1) School day means any day, including a partial day, that children are in attendance at school for instructional purposes.
(2) The term school day has the same meaning for all children in school, including children with and without disabilities.
(Authority: 20 U.S.C. 1221e–3)
§ 300.10 Educational service agency.
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As used in this part, the term educational service agency—
(a) Means a regional public multiservice agency—
(1) Authorized by State law to develop, manage, and provide services or programs to LEAs; and
(2) Recognized as an administrative agency for purposes of the provision of special education and related services provided within public elementary and secondary schools of the State;
(b) Includes any other public institution or agency having administrative control and direction over a public elementary or secondary school; and
(c) Includes entities that meet the definition of intermediate educational unit in section 602(23) of IDEA as in effect prior to June 4, 1997.
(Authority: 20 U.S.C. 1401(4))
§ 300.11 Equipment.
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As used in this part, the term equipment means—
(a) Machinery, utilities, and built-in equipment and any necessary enclosures or structures to house the machinery, utilities, or equipment; and
(b) All other items necessary for the functioning of a particular facility as a facility for the provision of educational services, including items such as instructional equipment and necessary furniture; printed, published and audio-visual instructional materials; telecommunications, sensory, and other technological aids and devices; and books, periodicals, documents, and other related materials.
(Authority: 20 U.S.C. 1401(6))
§ 300.12 Evaluation.
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As used in this part, the term evaluation has the meaning given that term in §300.500(b)(2).
(Authority: 20 U.S.C. 1415(a))
§ 300.13 Free appropriate public education.
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As used in this part, the term free appropriate public education or FAPE means special education and related services that—
(a) Are provided at public expense, under public supervision and direction, and without charge;
(b) Meet the standards of the SEA, including the requirements of this part;
(c) Include preschool, elementary school, or secondary school education in the State; and
(d) Are provided in conformity with an individualized education program (IEP) that meets the requirements of §§300.340–300.350.
(Authority: 20 U.S.C. 1401(8))
§ 300.14 Include.
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As used in this part, the term include means that the items named are not all of the possible items that are covered, whether like or unlike the ones named.
(Authority: 20 U.S.C. 1221e–3)
§ 300.15 Individualized education program.
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As used in this part, the term individualized education program or IEP has the meaning given the term in §300.340(a).
(Authority: 20 U.S.C. 1401(11))
§ 300.16 Individualized education program team.
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As used in this part, the term individualized education program team or IEP team means a group of individuals described in §300.344 that is responsible for developing, reviewing, or revising an IEP for a child with a disability.
(Authority: 20 U.S.C. 1221e–3)
§ 300.17 Individualized family service plan.
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As used in this part, the term individualized family service plan or IFSP has the meaning given the term in 34 CFR 303.340(b).
(Authority: 20 U.S.C. 1401(12))
§ 300.18 Local educational agency.
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(a) As used in this part, the term local educational agency means a public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary or secondary schools in a city, county, township, school district, or other political subdivision of a State, or for a combination of school districts or counties as are recognized in a State as an administrative agency for its public elementary or secondary schools.
(b) The term includes—
(1) An educational service agency, as defined in §300.10;
(2) Any other public institution or agency having administrative control and direction of a public elementary or secondary school, including a public charter school that is established as an LEA under State law; and
(3) An elementary or secondary school funded by the Bureau of Indian Affairs, and not subject to the jurisdiction of any SEA other than the Bureau of Indian Affairs, but only to the extent that the inclusion makes the school eligible for programs for which specific eligibility is not provided to the school in another provision of law and the school does not have a student population that is smaller than the student population of the LEA receiving assistance under this Act with the smallest student population.
(Authority: 20 U.S.C. 1401(15))
§ 300.19 Native language.
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(a) As used in this part, the term native language, if used with reference to an individual of limited English proficiency, means the following:
(1) The language normally used by that individual, or, in the case of a child, the language normally used by the parents of the child, except as provided in paragraph (a)(2) of this section.
(2) In all direct contact with a child (including evaluation of the child), the language normally used by the child in the home or learning environment.
(b) For an individual with deafness or blindness, or for an individual with no written language, the mode of communication is that normally used by the individual (such as sign language, braille, or oral communication).
(Authority: 20 U.S.C. 1401(16))
§ 300.20 Parent.
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(a) General. As used in this part, the term parent means—
(1) A natural or adoptive parent of a child;
(2) A guardian but not the State if the child is a ward of the State;
(3) A person acting in the place of a parent (such as a grandparent or stepparent with whom the child lives, or a person who is legally responsible for the child's welfare); or
(4) A surrogate parent who has been appointed in accordance with §300.515.
(b) Foster parent. Unless State law prohibits a foster parent from acting as a parent, a State may allow a foster parent to act as a parent under Part B of the Act if—
(1) The natural parents' authority to make educational decisions on the child's behalf has been extinguished under State law; and
(2) The foster parent—
(i) Has an ongoing, long-term parental relationship with the child;
(ii) Is willing to make the educational decisions required of parents under the Act; and
(iii) Has no interest that would conflict with the interests of the child.
(Authority: 20 U.S.C. 1401(19))
§ 300.21 Personally identifiable
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As used in this part, the term personally identifiable has the meaning given that term in §300.500(b)(3).
(Authority: 20 U.S.C. 1415(a))
§ 300.22 Public agency.
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As used in this part, the term public agency includes the SEA, LEAs, ESAs, public charter schools that are not otherwise included as LEAs or ESAs and are not a school of an LEA or ESA, and any other political subdivisions of the State that are responsible for providing education to children with disabilities.
(Authority: 20 U.S.C. 1412(a)(1)(A), (a)(11))
§ 300.23 Qualified personnel.
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As used in this part, the term qualified personnel means personnel who have met SEA-approved or SEA-recognized certification, licensing, registration, or other comparable requirements that apply to the area in which the individuals are providing special education or related services.
(Authority: 20 U.S.C. 1221e–3)
§ 300.24 Related services.
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(a) General. As used in this part, the term related services means transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education, and includes speech-language pathology and audiology services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, early identification and assessment of disabilities in children, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services for diagnostic or evaluation purposes. The term also includes school health services, social work services in schools, and parent counseling and training.
(b) Individual terms defined. The terms used in this definition are defined as follows:
(1) Audiology includes—
(i) Identification of children with hearing loss;
(ii) Determination of the range, nature, and degree of hearing loss, including referral for medical or other professional attention for the habilitation of hearing;
(iii) Provision of habilitative activities, such as language habilitation, auditory training, speech reading (lip-reading), hearing evaluation, and speech conservation;
(iv) Creation and administration of programs for prevention of hearing loss;
(v) Counseling and guidance of children, parents, and teachers regarding hearing loss; and
(vi) Determination of children's needs for group and individual amplification, selecting and fitting an appropriate aid, and evaluating the effectiveness of amplification.
(2) Counseling services means services provided by qualified social workers, psychologists, guidance counselors, or other qualified personnel.
(3) Early identification and assessment of disabilities in children means the implementation of a formal plan for identifying a disability as early as possible in a child's life.
(4) Medical services means services provided by a licensed physician to determine a child's medically related disability that results in the child's need for special education and related services.
(5) Occupational therapy—
(i) Means services provided by a qualified occupational therapist; and
(ii) Includes—
(A) Improving, developing or restoring functions impaired or lost through illness, injury, or deprivation;
(B) Improving ability to perform tasks for independent functioning if functions are impaired or lost; and
(C) Preventing, through early intervention, initial or further impairment or loss of function.
(6) Orientation and mobility services—
(i) Means services provided to blind or visually impaired students by qualified personnel to enable those students to attain systematic orientation to and safe movement within their environments in school, home, and community; and
(ii) Includes teaching students the following, as appropriate:
(A) Spatial and environmental concepts and use of information received by the senses (such as sound, temperature and vibrations) to establish, maintain, or regain orientation and line of travel (e.g., using sound at a traffic light to cross the street);
(B) To use the long cane to supplement visual travel skills or as a tool for safely negotiating the environment for students with no available travel vision;
(C) To understand and use remaining vision and distance low vision aids; and
(D) Other concepts, techniques, and tools.
(7) Parent counseling and training means—
(i) Assisting parents in understanding the special needs of their child;
(ii) Providing parents with information about child development; and
(iii) Helping parents to acquire the necessary skills that will allow them to support the implementation of their child's IEP or IFSP.
(8) Physical therapy means services provided by a qualified physical therapist.
(9) Psychological services includes—
(i) Administering psychological and educational tests, and other assessment procedures;
(ii) Interpreting assessment results;
(iii) Obtaining, integrating, and interpreting information about child behavior and conditions relating to learning;
(iv) Consulting with other staff members in planning school programs to meet the special needs of children as indicated by psychological tests, interviews, and behavioral evaluations;
(v) Planning and managing a program of psychological services, including psychological counseling for children and parents; and
(vi) Assisting in developing positive behavioral intervention strategies.
(10) Recreation includes—
(i) Assessment of leisure function;
(ii) Therapeutic recreation services;
(iii) Recreation programs in schools and community agencies; and
(iv) Leisure education.
(11) Rehabilitation counseling services means services provided by qualified personnel in individual or group sessions that focus specifically on career development, employment preparation, achieving independence, and integration in the workplace and community of a student with a disability. The term also includes vocational rehabilitation services provided to a student with disabilities by vocational rehabilitation programs funded under the Rehabilitation Act of 1973, as amended.
(12) School health services means services provided by a qualified school nurse or other qualified person.
(13) Social work services in schools includes—
(i) Preparing a social or developmental history on a child with a disability;
(ii) Group and individual counseling with the child and family;
(iii) Working in partnership with parents and others on those problems in a child's living situation (home, school, and community) that affect the child's adjustment in school;
(iv) Mobilizing school and community resources to enable the child to learn as effectively as possible in his or her educational program; and
(v) Assisting in developing positive behavioral intervention strategies.
(14) Speech-language pathology services includes—
(i) Identification of children with speech or language impairments;
(ii) Diagnosis and appraisal of specific speech or language impairments;
(iii) Referral for medical or other professional attention necessary for the habilitation of speech or language impairments;
(iv) Provision of speech and language services for the habilitation or prevention of communicative impairments; and
(v) Counseling and guidance of parents, children, and teachers regarding speech and language impairments.
(15) Transportation includes—
(i) Travel to and from school and between schools;
(ii) Travel in and around school buildings; and
(iii) Specialized equipment (such as special or adapted buses, lifts, and ramps), if required to provide special transportation for a child with a disability.
(Authority: 20 U.S.C. 1401(22))
§ 300.25 Secondary school.
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As used in this part, the term secondary school means a nonprofit institutional day or residential school that provides secondary education, as determined under State law, except that it does not include any education beyond grade 12.
(Authority: 20 U.S.C. 1401(23))
§ 300.26 Special education.
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(a) General. (1) As used in this part, the term special education means specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including—
(i) Instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and
(ii) Instruction in physical education.
(2) The term includes each of the following, if it meets the requirements of paragraph (a)(1) of this section:
(i) Speech-language pathology services, or any other related service, if the service is considered special education rather than a related service under State standards;
(ii) Travel training; and
(iii) Vocational education.
(b) Individual terms defined. The terms in this definition are defined as follows:
(1) At no cost means that all specially-designed instruction is provided without charge, but does not preclude incidental fees that are normally charged to nondisabled students or their parents as a part of the regular education program.
(2) Physical education—
(i) Means the development of—
(A) Physical and motor fitness;
(B) Fundamental motor skills and patterns; and
(C) Skills in aquatics, dance, and individual and group games and sports (including intramural and lifetime sports); and
(ii) Includes special physical education, adapted physical education, movement education, and motor development.
(3) Specially-designed instruction means adapting, as appropriate to the needs of an eligible child under this part, the content, methodology, or delivery of instruction—
(i) To address the unique needs of the child that result from the child's disability; and
(ii) To ensure access of the child to the general curriculum, so that he or she can meet the educational standards within the jurisdiction of the public agency that apply to all children.
(4) Travel training means providing instruction, as appropriate, to children with significant cognitive disabilities, and any other children with disabilities who require this instruction, to enable them to—
(i) Develop an awareness of the environment in which they live; and
(ii) Learn the skills necessary to move effectively and safely from place to place within that environment (e.g., in school, in the home, at work, and in the community).
(5) Vocational education means organized educational programs that are directly related to the preparation of individuals for paid or unpaid employment, or for additional preparation for a career requiring other than a baccalaureate or advanced degree.
(Authority: 20 U.S.C. 1401(25))
§ 300.27 State.
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As used in this part, the term State means each of the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, and each of the outlying areas.
(Authority: 20 U.S.C. 1401(27))
§ 300.28 Supplementary aids and services.
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As used in this part, the term supplementary aids and services means, aids, services, and other supports that are provided in regular education classes or other education-related settings to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate in accordance with §§300.550–300.556.
Authority: 20 U.S.C. 1401(29))
§ 300.29 Transition services.
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(a) As used in this part, transition services means a coordinated set of activities for a student with a disability that—
(1) Is designed within an outcome-oriented process, that promotes movement from school to post-school activities, including postsecondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;
(2) Is based on the individual student's needs, taking into account the student's preferences and interests; and
(3) Includes—
(i) Instruction;
(ii) Related services;
(iii) Community experiences;
(iv) The development of employment and other post-school adult living objectives; and
(v) If appropriate, acquisition of daily living skills and functional vocational evaluation.
(b) Transition services for students with disabilities may be special education, if provided as specially designed instruction, or related services, if required to assist a student with a disability to benefit from special education.
(Authority: 20 U.S.C. 1401(30))
§ 300.30 Definitions in EDGAR.
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The following terms used in this part are defined in 34 CFR 77.1:
Application
Award
Contract
Department
EDGAR
Elementary school
Fiscal year
Grant
Nonprofit
Project
Secretary
Subgrant
State educational agency
(Authority: 20 U.S.C. 1221e–3(a)(1))
Subpart B—State and Local Eligibility
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State Eligibility—General
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§ 300.110 Condition of assistance.
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(a) A State is eligible for assistance under Part B of the Act for a fiscal year if the State demonstrates to the satisfaction of the Secretary that the State has in effect policies and procedures to ensure that it meets the conditions in §§300.121–300.156.
(b) To meet the requirement of paragraph (a) of this section, the State must have on file with the Secretary—
(1) The information specified in §§300.121–300.156 that the State uses to implement the requirements of this part; and
(2) Copies of all applicable State statutes, regulations, and other State documents that show the basis of that information.
(Authority: 20 U.S.C. 1412(a))
§ 300.111 Exception for prior State policies and procedures on file with the Secretary.
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If a State has on file with the Secretary policies and procedures approved by the Secretary that demonstrate that the State meets any requirement of §300.110, including any policies and procedures filed under Part B of the Act as in effect before June 4, 1997, the Secretary considers the State to have met the requirement for purposes of receiving a grant under Part B of the Act.
(Authority: 20 U.S.C. 1412(c)(1))
§ 300.112 Amendments to State policies and procedures.
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(a) Modifications made by a State. (1) Subject to paragraph (b) of this section, policies and procedures submitted by a State in accordance with this subpart remain in effect until the State submits to the Secretary the modifications that the State decides are necessary.
(2) The provisions of this subpart apply to a modification to a State's policies and procedures in the same manner and to the same extent that they apply to the State's original policies and procedures.
(b) Modifications required by the Secretary. The Secretary may require a State to modify its policies and procedures, but only to the extent necessary to ensure the State's compliance with this part, if—
(1) After June 4, 1997, the provisions of the Act or the regulations in this part are amended;
(2) There is a new interpretation of this Act or regulations by a Federal court or a State's highest court; or
(3) There is an official finding of noncompliance with Federal law or regulations.
(Authority: 20 U.S.C. 1412(c)(2) and (3))
§ 300.113 Approval by the Secretary.
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(a) General. If the Secretary determines that a State is eligible to receive a grant under Part B of the Act, the Secretary notifies the State of that determination.
(b) Notice and hearing before determining a State is not eligible. The Secretary does not make a final determination that a State is not eligible to receive a grant under Part B of the Act until after providing the State reasonable notice and an opportunity for a hearing in accordance with the procedures in §§300.581–300.586.
(Authority: 20 U.S.C. 1412(d))
§§ 300.114-300.120 [Reserved]
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State Eligibility—Specific Conditions
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§ 300.121 Free appropriate public education (FAPE).
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(a) General. Each State must have on file with the Secretary information that shows that, subject to §300.122, the State has in effect a policy that ensures that all children with disabilities aged 3 through 21 residing in the State have the right to FAPE, including children with disabilities who have been suspended or expelled from school.
(b) Required information. The information described in paragraph (a) of this section must—
(1) Include a copy of each State statute, court order, State Attorney General opinion, and other State documents that show the source of the State's policy relating to FAPE; and
(2) Show that the policy—
(i)(A) Applies to all public agencies in the State; and
(B) Is consistent with the requirements of §§300.300–300.313; and
(ii) Applies to all children with disabilities, including children who have been suspended or expelled from school.
(c) FAPE for children beginning at age 3. (1) Each State shall ensure that—
(i) The obligation to make FAPE available to each eligible child residing in the State begins no later than the child's third birthday; and
(ii) An IEP or an IFSP is in effect for the child by that date, in accordance with §300.342(c).
(2) If a child's third birthday occurs during the summer, the child's IEP team shall determine the date when services under the IEP or IFSP will begin.
(d) FAPE for children suspended or expelled from school. (1) A public agency need not provide services during periods of removal under §300.520(a)(1) to a child with a disability who has been removed from his or her current placement for 10 school days or less in that school year, if services are not provided to a child without disabilities who has been similarly removed.
(2) In the case of a child with a disability who has been removed from his or her current placement for more than 10 school days in that school year, the public agency, for the remainder of the removals, must—
(i) Provide services to the extent necessary to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the child's IEP, if the removal is—
(A) Under the school personnel's authority to remove for not more than 10 consecutive school days as long as that removal does not constitute a change of placement under §300.519(b) (§300.520((a)(1)); or
(B) For behavior that is not a manifestation of the child's disability, consistent with §300.524; and
(ii) Provide services consistent with §300.522, regarding determination of the appropriate interim alternative educational setting, if the removal is—
(A) For drug or weapons offenses under §300.520(a)(2); or
(B) Based on a hearing officer determination that maintaining the current placement of the child is substantially likely to result in injury to the child or to others if he or she remains in the current placement, consistent with §300.521.
(3)(i) School personnel, in consultation with the child's special education teacher, determine the extent to which services are necessary to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the child's IEP if the child is removed under the authority of school personnel to remove for not more than 10 consecutive school days as long as that removal does not constitute a change of placement under §300.519 (§300.520(a)(1)).
(ii) The child's IEP team determines the extent to which services are necessary to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the child's IEP if the child is removed because of behavior that has been determined not to be a manifestation of the child's disability, consistent with §300.524.
(e) Children advancing from grade to grade. (1) Each State shall ensure that FAPE is available to any individual child with a disability who needs special education and related services, even though the child is advancing from grade to grade.
(2) The determination that a child described in paragraph (a)(1) of this section is eligible under this part, must be made on an individual basis by the group responsible within the child's LEA for making those determinations.
(Authority: 20 U.S.C. 1412(a)(1))
§ 300.122 Exception to FAPE for certain ages.
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(a) General. The obligation to make FAPE available to all children with disabilities does not apply with respect to the following:
(1) Children aged 3, 4, 5, 18, 19, 20, or 21 in a State to the extent that its application to those children would be inconsistent with State law or practice, or the order of any court, respecting the provision of public education to children in one or more of those age groups.
(2)(i) Students aged 18 through 21 to the extent that State law does not require that special education and related services under Part B of the Act be provided to students with disabilities who, in the last educational placement prior to their incarceration in an adult correctional facility—
(A) Were not actually identified as being a child with a disability under §300.7; and
(B) Did not have an IEP under Part B of the Act.
(ii) The exception in paragraph (a)(2)(i) of this section does not apply to students with disabilities, aged 18 through 21, who—
(A) Had been identified as a child with disability and had received services in accordance with an IEP, but who left school prior to their incarceration; or
(B) Did not have an IEP in their last educational setting, but who had actually been identified as a “child with a disability” under §300.7.
(3)(i) Students with disabilities who have graduated from high school with a regular high school diploma.
(ii) The exception in paragraph (a)(3)(i) of this section does not apply to students who have graduated but have not been awarded a regular high school diploma.
(iii) Graduation from high school with a regular diploma constitutes a change in placement, requiring written prior notice in accordance with §300.503.
(b) Documents relating to exceptions. The State must have on file with the Secretary—
(1)(i) Information that describes in detail the extent to which the exception in paragraph (a)(1) of this section applies to the State; and
(ii) A copy of each State law, court order, and other documents that provide a basis for the exception; and
(2) With respect to paragraph (a)(2) of this section, a copy of the State law that excludes from services under Part B of the Act certain students who are incarcerated in an adult correctional facility.
(Authority: 20 U.S.C. 1412(a)(1)(B))
§ 300.123 Full educational opportunity goal (FEOG).
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The State must have on file with the Secretary detailed policies and procedures through which the State has established a goal of providing full educational opportunity to all children with disabilities aged birth through 21.
(Authority: 20 U.S.C. 1412(a)(2))
§ 300.124 FEOG—timetable.
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The State must have on file with the Secretary a detailed timetable for accomplishing the goal of providing full educational opportunity for all children with disabilities.
(Authority: 20 U.S.C. 1412(a)(2))
§ 300.125 Child find.
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(a) General requirement. (1) The State must have in effect policies and procedures to ensure that—
(i) All children with disabilities residing in the State, including children with disabilities attending private schools, regardless of the severity of their disability, and who are in need of special education and related services, are identified, located, and evaluated; and
(ii) A practical method is developed and implemented to determine which children are currently receiving needed special education and related services.
(2) The requirements of paragraph (a)(1) of this section apply to—
(i) Highly mobile children with disabilities (such as migrant and homeless children); and
(ii) Children who are suspected of being a child with a disability under §300.7 and in need of special education, even though they are advancing from grade to grade.
(b) Documents relating to child find. The State must have on file with the Secretary the policies and procedures described in paragraph (a) of this section, including—
(1) The name of the State agency (if other than the SEA) responsible for coordinating the planning and implementation of the policies and procedures under paragraph (a) of this section;
(2) The name of each agency that participates in the planning and implementation of the child find activities and a description of the nature and extent of its participation;
(3) A description of how the policies and procedures under paragraph (a) of this section will be monitored to ensure that the SEA obtains—
(i) The number of children with disabilities within each disability category that have been identified, located, and evaluated; and
(ii) Information adequate to evaluate the effectiveness of those policies and procedures; and
(4) A description of the method the State uses to determine which children are currently receiving special education and related services.
(c) Child find for children from birth through age 2 when the SEA and lead agency for the Part C program are different. (1) In States where the SEA and the State's lead agency for the Part C program are different and the Part C lead agency will be participating in the child find activities described in paragraph (a) of this section, a description of the nature and extent of the Part C lead agency's participation must be included under paragraph (b)(2) of this section.
(2) With the SEA's agreement, the Part C lead agency's participation may include the actual implementation of child find activities for infants and toddlers with disabilities.
(3) The use of an interagency agreement or other mechanism for providing for the Part C lead agency's participation does not alter or diminish the responsibility of the SEA to ensure compliance with the requirements of this section.
(d) Construction. Nothing in the Act requires that children be classified by their disability so long as each child who has a disability listed in §300.7 and who, by reason of that disability, needs special education and related services is regarded as a child with a disability under Part B of the Act.
(e) Confidentiality of child find data. The collection and use of data to meet the requirements of this section are subject to the confidentiality requirements of §§300.560–300.577.
(Authority: 20 U.S.C. 1412 (a)(3)(A) and (B))
§ 300.126 Procedures for evaluation and determination of eligibility.
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The State must have on file with the Secretary policies and procedures that ensure that the requirements of §§300.530–300.536 are met.
(Authority: 20 U.S.C. 1412(a)(6)(B), (7))
§ 300.127 Confidentiality of personally identifiable information.
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(a) The State must have on file in detail the policies and procedures that the State has undertaken to ensure protection of the confidentiality of any personally identifiable information, collected, used, or maintained under Part B of the Act.
(b) The Secretary uses the criteria in §§300.560–300.576 to evaluate the policies and procedures of the State under paragraph (a) of this section.
(Authority: 20 U.S.C. 1412(a)(8))
§ 300.128 Individualized education programs.
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(a) General. The State must have on file with the Secretary information that shows that an IEP, or an IFSP that meets the requirements of section 636(d) of the Act, is developed, reviewed, and revised for each child with a disability in accordance with §§300.340–300.350.
(b) Required information. The information described in paragraph (a) of this section must include—
(1) A copy of each State statute, policy, and standard that regulates the manner in which IEPs are developed, implemented, reviewed, and revised; and
(2) The procedures that the SEA follows in monitoring and evaluating those IEPs or IFSPs.
(Authority: 20 U.S.C. 1412(a)(4))
§ 300.129 Procedural safeguards.
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(a) The State must have on file with the Secretary procedural safeguards that ensure that the requirements of §§300.500–300.529 are met.
(b) Children with disabilities and their parents must be afforded the procedural safeguards identified in paragraph (a) of this section.
(Authority: 20 U.S.C. 1412(a)(6)(A))
§ 300.130 Least restrictive environment.
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(a) General. The State must have on file with the Secretary procedures that ensure that the requirements of §§300.550–300.556 are met, including the provision in §300.551 requiring a continuum of alternative placements to meet the unique needs of each child with a disability.
(b) Additional requirement. (1) If the State uses a funding mechanism by which the State distributes State funds on the basis of the type of setting where a child is served, the funding mechanism may not result in placements that violate the requirements of paragraph (a) of this section.
(2) If the State does not have policies and procedures to ensure compliance with paragraph (b)(1) of this section, the State must provide the Secretary an assurance that the State will revise the funding mechanism as soon as feasible to ensure that the mechanism does not result in placements that violate that paragraph.
(Authority: 20 U.S.C. 1412(a)(5))
§ 300.131 [Reserved]
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§ 300.132 Transition of children from Part C to preschool programs.
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The State must have on file with the Secretary policies and procedures to ensure that—
(a) Children participating in early-intervention programs assisted under Part C of the Act, and who will participate in preschool programs assisted under Part B of the Act, experience a smooth and effective transition to those preschool programs in a manner consistent with section 637(a)(8) of the Act;
(b) By the third birthday of a child described in paragraph (a) of this section, an IEP or, if consistent with §300.342(c) and section 636(d) of the Act, an IFSP, has been developed and is being implemented for the child consistent with §300.121(c); and
(c) Each LEA will participate in transition planning conferences arranged by the designated lead agency under section 637(a)(8) of the Act.
(Authority: 20 U.S.C. 1412(a)(9))
§ 300.133 Children in private schools.
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The State must have on file with the Secretary policies and procedures that ensure that the requirements of §§300.400–300.403 and §§300.450–300.462 are met.
(Authority: 20 U.S.C. 1413(a)(4))
§ 300.134 [Reserved]
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§ 300.135 Comprehensive system of personnel development.
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(a) General. The State must have in effect, consistent with the purposes of this part and with section 635(a)(8) of the Act, a comprehensive system of personnel development that—
(1) Is designed to ensure an adequate supply of qualified special education, regular education, and related services personnel; and
(2) Meets the requirements for a State improvement plan relating to personnel development in section 653(b)(2)(B) and (c)(3)(D) of the Act.
(b) Information. The State must have on file with the Secretary information that shows that the requirements of paragraph (a) of this section are met.
(Authority: 20 U.S.C. 1412(a)(14))
§ 300.136 Personnel standards.
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(a) Definitions. As used in this part—
(1) Appropriate professional requirements in the State means entry level requirements that—
(i) Are based on the highest requirements in the State applicable to the profession or discipline in which a person is providing special education or related services; and
(ii) Establish suitable qualifications for personnel providing special education and related services under Part B of the Act to children with disabilities who are served by State, local, and private agencies (see §300.2);
(2) Highest requirements in the State applicable to a specific profession or discipline means the highest entry-level academic degree needed for any State-approved or -recognized certification, licensing, registration, or other comparable requirements that apply to that profession or discipline;
(3) Profession or discipline means a specific occupational category that—
(i) Provides special education and related services to children with disabilities under Part B of the Act;
(ii) Has been established or designated by the State;
(iii) Has a required scope of responsibility and degree of supervision; and
(iv) Is not limited to traditional occupational categories; and
(4) State-approved or -recognized certification, licensing, registration, or other comparable requirements means the requirements that a State legislature either has enacted or has authorized a State agency to promulgate through rules to establish the entry-level standards for employment in a specific profession or discipline in that State.
(b) Policies and procedures. (1)(i) The State must have on file with the Secretary policies and procedures relating to the establishment and maintenance of standards to ensure that personnel necessary to carry out the purposes of this part are appropriately and adequately prepared and trained.
(ii) The policies and procedures required in paragraph (b)(1)(i) of this section must provide for the establishment and maintenance of standards that are consistent with any State-approved or -recognized certification, licensing, registration, or other comparable requirements that apply to the profession or discipline in which a person is providing special education or related services.
(2) Each State may—
(i) Determine the specific occupational categories required to provide special education and related services within the State; and
(ii) Revise or expand those categories as needed.
(3) Nothing in this part requires a State to establish a specified training standard (e.g., a masters degree) for personnel who provide special education and related services under Part B of the Act.
(4) A State with only one entry-level academic degree for employment of personnel in a specific profession or discipline may modify that standard as necessary to ensure the provision of FAPE to all children with disabilities in the State without violating the requirements of this section.
(c) Steps for retraining or hiring personnel. To the extent that a State's standards for a profession or discipline, including standards for temporary or emergency certification, are not based on the highest requirements in the State applicable to a specific profession or discipline, the State must provide the steps the State is taking and the procedures for notifying public agencies and personnel of those steps and the timelines it has established for the retraining or hiring of personnel to meet appropriate professional requirements in the State.
(d) Status of personnel standards in the State. (1) In meeting the requirements in paragraphs (b) and (c) of this section, a determination must be made about the status of personnel standards in the State. That determination must be based on current information that accurately describes, for each profession or discipline in which personnel are providing special education or related services, whether the applicable standards are consistent with the highest requirements in the State for that profession or discipline.
(2) The information required in paragraph (d)(1) of this section must be on file in the SEA and available to the public.
(e) Applicability of State statutes and agency rules. In identifying the highest requirements in the State for purposes of this section, the requirements of all State statutes and the rules of all State agencies applicable to serving children with disabilities must be considered.
(f) Use of paraprofessionals and assistants. A State may allow paraprofessionals and assistants who are appropriately trained and supervised, in accordance with State law, regulations, or written policy, in meeting the requirements of this part to be used to assist in the provision of special education and related services to children with disabilities under Part B of the Act.
(g) Policy to address shortage of personnel. (1) In implementing this section, a State may adopt a policy that includes a requirement that LEAs in the State make an ongoing good faith effort to recruit and hire appropriately and adequately trained personnel to provide special education and related services to children with disabilities, including, in a geographic area of the State where there is a shortage of personnel that meet these qualifications, the most qualified individuals available who are making satisfactory progress toward completing applicable course work necessary to meet the standards described in paragraph (b)(2) of this section, consistent with State law and the steps described in paragraph (c) of this section, within three years.
(2) If a State has reached its established date under paragraph (c) of this section, the State may still exercise the option under paragraph (g)(1) of this section for training or hiring all personnel in a specific profession or discipline to meet appropriate professional requirements in the State.
(3)(i) Each State must have a mechanism for serving children with disabilities if instructional needs exceed available personnel who meet appropriate professional requirements in the State for a specific profession or discipline.
(ii) A State that continues to experience shortages of qualified personnel must address those shortages in its comprehensive system of personnel development under §300.135.
(Authority: 20 U.S.C. 1412(a)(15))
§ 300.137 Performance goals and indicators.
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The State must have on file with the Secretary information to demonstrate that the State—
(a) Has established goals for the performance of children with disabilities in the State that—
(1) Will promote the purposes of this part, as stated in §300.1; and
(2) Are consistent, to the maximum extent appropriate, with other goals and standards for all children established by the State;
(b) Has established performance indicators that the State will use to assess progress toward achieving those goals that, at a minimum, address the performance of children with disabilities on assessments, drop-out rates, and graduation rates;
(c) Every two years, will report to the Secretary and the public on the progress of the State, and of children with disabilities in the State, toward meeting the goals established under paragraph (a) of this section; and
(d) Based on its assessment of that progress, will revise its State improvement plan under subpart 1 of Part D of the Act as may be needed to improve its performance, if the State receives assistance under that subpart.
(Authority: 20 U.S.C. 1412(a)(16))
§ 300.138 Participation in assessments.
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The State must have on file with the Secretary information to demonstrate that—
(a) Children with disabilities are included in general State and district-wide assessment programs, with appropriate accommodations and modifications in administration, if necessary;
(b) As appropriate, the State or LEA—
(1) Develops guidelines for the participation of children with disabilities in alternate assessments for those children who cannot participate in State and district-wide assessment programs;
(2) Develops alternate assessments in accordance with paragraph (b)(1) of this section; and
(3) Beginning not later than, July 1, 2000, conducts the alternate assessments described in paragraph (b)(2) of this section.
(Authority: 20 U.S.C. 1412(a)(17)(A))
§ 300.139 Reports relating to assessments.
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(a) General. In implementing the requirements of §300.138, the SEA shall make available to the public, and report to the public with the same frequency and in the same detail as it reports on the assessment of nondisabled children, the following information:
(1) The number of children with disabilities participating—
(i) In regular assessments; and
(ii) In alternate assessments.
(2) The performance results of the children described in paragraph (a)(1) of this section if doing so would be statistically sound and would not result in the disclosure of performance results identifiable to individual children—
(i) On regular assessments (beginning not later than July 1, 1998); and
(ii) On alternate assessments (not later than July 1, 2000).
(b) Combined reports. Reports to the public under paragraph (a) of this section must include—
(1) Aggregated data that include the performance of children with disabilities together with all other children; and
(2) Disaggregated data on the performance of children with disabilities.
(c) Timeline for disaggregation of data. Data relating to the performance of children described under paragraph (a)(2) of this section must be disaggregated—
(1) For assessments conducted after July 1, 1998; and
(2) For assessments conducted before July 1, 1998, if the State is required to disaggregate the data prior to July 1, 1998.
(Authority: 20 U.S.C. 612(a)(17)(B))
§ 300.140 [Reserved]
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§ 300.141 SEA responsibility for general supervision.
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(a) The State must have on file with the Secretary information that shows that the requirements of §300.600 are met.
(b) The information described under paragraph (a) of this section must include a copy of each State statute, State regulation, signed agreement between respective agency officials, and any other documents that show compliance with that paragraph.
(Authority: 20 U.S.C. 1412(a)(11))
§ 300.142 Methods of ensuring services.
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(a) Establishing responsibility for services. The Chief Executive Officer or designee of that officer shall ensure that an interagency agreement or other mechanism for interagency coordination is in effect between each noneducational public agency described in paragraph (b) of this section and the SEA, in order to ensure that all services described in paragraph (b)(1) of this section that are needed to ensure FAPE are provided, including the provision of these services during the pendency of any dispute under paragraph (a)(3) of this section. The agreement or mechanism must include the following:
(1) Agency financial responsibility. An identification of, or a method for defining, the financial responsibility of each agency for providing services described in paragraph (b)(1) of this section to ensure FAPE to children with disabilities. The financial responsibility of each noneducational public agency described in paragraph (b) of this section, including the State Medicaid agency and other public insurers of children with disabilities, must precede the financial responsibility of the LEA (or the State agency responsible for developing the child's IEP).
(2) Conditions and terms of reimbursement. The conditions, terms, and procedures under which an LEA must be reimbursed by other agencies.
(3) Interagency disputes. Procedures for resolving interagency disputes (including procedures under which LEAs may initiate proceedings) under the agreement or other mechanism to secure reimbursement from other agencies or otherwise implement the provisions of the agreement or mechanism.
(4) Coordination of services procedures. Policies and procedures for agencies to determine and identify the interagency coordination responsibilities of each agency to promote the coordination and timely and appropriate delivery of services described in paragraph (b)(1) of this section.
(b) Obligation of noneducational public agencies—(1) General. (i) If any public agency other than an educational agency is otherwise obligated under Federal or State law, or assigned responsibility under State policy or pursuant to paragraph (a) of this section, to provide or pay for any services that are also considered special education or related services (such as, but not limited to, services described in §300.5 relating to assistive technology devices, §300.6 relating to assistive technology services, §300.24 relating to related services, §300.28 relating to supplementary aids and services, and §300.29 relating to transition services) that are necessary for ensuring FAPE to children with disabilities within the State, the public agency shall fulfill that obligation or responsibility, either directly or through contract or other arrangement.
(ii) A noneducational public agency described in paragraph (b)(1)(i) of this section may not disqualify an eligible service for Medicaid reimbursement because that service is provided in a school context.
(2) Reimbursement for services by noneducational public agency. If a public agency other than an educational agency fails to provide or pay for the special education and related services described in paragraph (b)(1) of this section, the LEA (or State agency responsible for developing the child's IEP) shall provide or pay for these services to the child in a timely manner. The LEA or State agency may then claim reimbursement for the services from the noneducational public agency that failed to provide or pay for these services and that agency shall reimburse the LEA or State agency in accordance with the terms of the interagency agreement or other mechanism described in paragraph (a)(1) of this section, and the agreement described in paragraph (a)(2) of this section.
(c) Special rule. The requirements of paragraph (a) of this section may be met through—
(1) State statute or regulation;
(2) Signed agreements between respective agency officials that clearly identify the responsibilities of each agency relating to the provision of services; or
(3) Other appropriate written methods as determined by the Chief Executive Officer of the State or designee of that officer.
(d) Information. The State must have on file with the Secretary information to demonstrate that the requirements of paragraphs (a) through (c) of this section are met.
(e) Children with disabilities who are covered by public insurance. (1) A public agency may use the Medicaid or other public insurance benefits programs in which a child participates to provide or pay for services required under this part, as permitted under the public insurance program, except as provided in paragraph (e)(2) of this section.
(2) With regard to services required to provide FAPE to an eligible child under this part, the public agency—
(i) May not require parents to sign up for or enroll in public insurance programs in order for their child to receive FAPE under Part B of the Act;
(ii) May not require parents to incur an out-of-pocket expense such as the payment of a deductible or co-pay amount incurred in filing a claim for services provided pursuant to this part, but pursuant to paragraph (g)(2) of this section, may pay the cost that the parent otherwise would be required to pay; and
(iii) May not use a child's benefits under a public insurance program if that use would—
(A) Decrease available lifetime coverage or any other insured benefit;
(B) Result in the family paying for services that would otherwise be covered by the public insurance program and that are required for the child outside of the time the child is in school;
(C) Increase premiums or lead to the discontinuation of insurance; or
(D) Risk loss of eligibility for home and community-based waivers, based on aggregate health-related expenditures.
(f) Children with disabilities who are covered by private insurance. (1) With regard to services required to provide FAPE to an eligible child under this part, a public agency may access a parent's private insurance proceeds only if the parent provides informed consent consistent with §300.500(b)(1).
(2) Each time the public agency proposes to access the parent's private insurance proceeds, it must—
(i) Obtain parent consent in accordance with paragraph (f)(1) of this section; and
(ii) Inform the parents that their refusal to permit the public agency to access their private insurance does not relieve the public agency of its responsibility to ensure that all required services are provided at no cost to the parents.
(g) Use of Part B funds. (1) If a public agency is unable to obtain parental consent to use the parent's private insurance, or public insurance when the parent would incur a cost for a specified service required under this part, to ensure FAPE the public agency may use its Part B funds to pay for the service.
(2) To avoid financial cost to parents who otherwise would consent to use private insurance, or public insurance if the parent would incur a cost, the public agency may use its Part B funds to pay the cost the parents otherwise would have to pay to use the parent's insurance (e.g., the deductible or co-pay amounts).
(h) Proceeds from public or private insurance. (1) Proceeds from public or private insurance will not be treated as program income for purposes of 34 CFR 80.25.
(2) If a public agency spends reimbursements from Federal funds (e.g., Medicaid) for services under this part, those funds will not be considered “State or local” funds for purposes of the maintenance of effort provisions in §§300.154 and 300.231.
(i) Construction. Nothing in this part should be construed to alter the requirements imposed on a State Medicaid agency, or any other agency administering a public insurance program by Federal statute, regulations or policy under title XIX, or title XXI of the Social Security Act, or any other public insurance program.
(Authority: 20 U.S.C. 1412(a)(12)(A), (B), and (C); 1401(8))
§ 300.143 SEA implementation of procedural safeguards.
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The State must have on file with the Secretary the procedures that the SEA (and any agency assigned responsibility pursuant to §300.600(d)) follows to inform each public agency of its responsibility for ensuring effective implementation of procedural safeguards for the children with disabilities served by that public agency.
(Authority: 20 U.S.C. 1412(a)(11); 1415(a))
§ 300.144 Hearings relating to LEA eligibility.
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The State must have on file with the Secretary procedures to ensure that the SEA does not make any final determination that an LEA is not eligible for assistance under Part B of the Act without first giving the LEA reasonable notice and an opportunity for a hearing under 34 CFR 76.401(d).
(Authority: 20 U.S.C. 1412(a)(13))
§ 300.145 Recovery of funds for misclassified children.
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The State must have on file with the Secretary policies and procedures that ensure that the State seeks to recover any funds provided under Part B of the Act for services to a child who is determined to be erroneously classified as eligible to be counted under section 611(a) or (d) of the Act.
(Authority: 20 U.S.C. 1221e–3(a)(1))
§ 300.146 Suspension and expulsion rates.
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The State must have on file with the Secretary information to demonstrate that the following requirements are met:
(a) General. The SEA examines data to determine if significant discrepancies are occurring in the rate of long-term suspensions and expulsions of children with disabilities—
(1) Among LEAs in the State; or
(2) Compared to the rates for nondisabled children within the agencies.
(b) Review and revision of policies. If the discrepancies described in paragraph (a) of this section are occurring, the SEA reviews and, if appropriate, revises (or requires the affected State agency or LEA to revise) its policies, procedures, and practices relating to the development and implementation of IEPs, the use of behavioral interventions, and procedural safeguards, to ensure that these policies, procedures, and practices comply with the Act.
(Authority: 20 U.S.C. 612(a)(22))
§ 300.147 Additional information if SEA provides direct services.
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(a) If the SEA provides FAPE to children with disabilities, or provides direct services to these children, the agency—
(1) Shall comply with any additional requirements of §§300.220–300.230(a) and 300.234–300.250 as if the agency were an LEA; and
(2) May use amounts that are otherwise available to the agency under Part B of the Act to serve those children without regard to §300.184 (relating to excess costs).
(b) The SEA must have on file with the Secretary information to demonstrate that it meets the requirements of paragraph (a)(1) of this section.
(Authority: 20 U.S.C. 1412(b))
§ 300.148 Public participation.
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(a) General; exception. (1) Subject to paragraph (a)(2) of this section, each State must ensure that, prior to the adoption of any policies and procedures needed to comply with this part, there are public hearings, adequate notice of the hearings, and an opportunity for comment available to the general public, including individuals with disabilities and parents of children with disabilities consistent with §§300.280–300.284.
(2) A State will be considered to have met paragraph (a)(1) of this section with regard to a policy or procedure needed to comply with this part if it can demonstrate that prior to the adoption of that policy or procedure, the policy or procedure was subjected to a public review and comment process that is required by the State for other purposes and is comparable to and consistent with the requirements of §§300.280–300.284.
(b) Documentation. The State must have on file with the Secretary information to demonstrate that the requirements of paragraph (a) of this section are met.
(Authority: 20 U.S.C. 1412(a)(20))
§ 300.149 [Reserved]
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§ 300.150 State advisory panel.
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The State must have on file with the Secretary information to demonstrate that the State has established and maintains an advisory panel for the purpose of providing policy guidance with respect to special education and related services for children with disabilities in the State in accordance with the requirements of §§300.650–300.653.
(Authority: 20 U.S.C. 1412(a)(21)(A))
§ 300.151 [Reserved]
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§ 300.152 Prohibition against commingling.
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(a) The State must have on file with the Secretary an assurance satisfactory to the Secretary that the funds under Part B of the Act are not commingled with State funds.
(b) The assurance in paragraph (a) of this section is satisfied by the use of a separate accounting system that includes an audit trail of the expenditure of the Part B funds. Separate bank accounts are not required. (See 34 CFR 76.702 (Fiscal control and fund accounting procedures).)
(Authority: 20 U.S.C. 1412(a)(18)(B))
§ 300.153 State-level nonsupplanting.
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(a) General. (1) Except as provided in §300.230, funds paid to a State under Part B of the Act must be used to supplement the level of Federal, State, and local funds (including funds that are not under the direct control of the SEA or LEAs) expended for special education and related services provided to children with disabilities under Part B of the Act and in no case to supplant these Federal, State, and local funds.
(2) The State must have on file with the Secretary information to demonstrate to the satisfaction of the Secretary that the requirements of paragraph (a)(1) of this section are met.
(b) Waiver. If the State provides clear and convincing evidence that all children with disabilities have available to them FAPE, the Secretary may waive, in whole or in part, the requirements of paragraph (a) of this section if the Secretary concurs with the evidence provided by the State under §300.589.
(Authority: 20 U.S.C. 1412(a)(18)(c))
§ 300.154 Maintenance of State financial support.
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(a) General. The State must have on file with the Secretary information to demonstrate, on either a total or per-capita basis, that the State will not reduce the amount of State financial support for special education and related services for children with disabilities, or otherwise made available because of the excess costs of educating those children, below the amount of that support for the preceding fiscal year.
(b) Reduction of funds for failure to maintain support. The Secretary reduces the allocation of funds under section 611 of the Act for any fiscal year following the fiscal year in which the State fails to comply with the requirement of paragraph (a) of this section by the same amount by which the State fails to meet the requirement.
(c) Waivers for exceptional or uncontrollable circumstances. The Secretary may waive the requirement of paragraph (a) of this section for a State, for one fiscal year at a time, if the Secretary determines that—
(1) Granting a waiver would be equitable due to exceptional or uncontrollable circumstances such as a natural disaster or a precipitous and unforeseen decline in the financial resources of the State; or
(2) The State meets the standard in §300.589 for a waiver of the requirement to supplement, and not to supplant, funds received under Part B of the Act.
(d) Subsequent years. If, for any fiscal year, a State fails to meet the requirement of paragraph (a) of this section, including any year for which the State is granted a waiver under paragraph (c) of this section, the financial support required of the State in future years under paragraph (a) of this section must be the amount that would have been required in the absence of that failure and not the reduced level of the State's support.
(Authority: 20 U.S.C. 1412(a)(19))
§ 300.155 Policies and procedures for use of Part B funds.
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The State must have on file with the Secretary policies and procedures designed to ensure that funds paid to the State under Part B of the Act are spent in accordance with the provisions of Part B.
(Authority: 20 U.S.C. 1412(a)(18)(A))
§ 300.156 Annual description of use of Part B funds.
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(a) In order to receive a grant in any fiscal year a State must annually describe—
(1) How amounts retained for State-level activities under §300.602 will be used to meet the requirements of this part;
(2) How those amounts will be allocated among the activities described in §§300.621 and 300.370 to meet State priorities based on input from LEAs; and
(3) The percentage of those amounts, if any, that will be distributed to LEAs by formula.
(b) If a State's plans for use of its funds under §§300.370 and 300.620 for the forthcoming year do not change from the prior year, the State may submit a letter to that effect to meet the requirement in paragraph (a) of this section.
(Authority: 20 U.S.C. 1411(f)(5))
LEA and State Agency Eeligibility—General
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§ 300.180 Condition of assistance.
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An LEA or State agency is eligible for assistance under Part B of the Act for a fiscal year if the agency demonstrates to the satisfaction of the SEA that it meets the conditions in §§300.220–300.250.
(Authority: 20 U.S.C. 1413(a))
§ 300.181 Exception for prior LEA or State agency policies and procedures on file with the SEA.
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If an LEA or a State agency described in §300.194 has on file with the SEA policies and procedures that demonstrate that the LEA or State agency meets any requirement of §300.180, including any policies and procedures filed under Part B of the Act as in effect before June 4, 1997, the SEA shall consider the LEA or State agency to have met the requirement for purposes of receiving assistance under Part B of the Act.
(Authority: 20 U.S.C. 1413(b)(1))
§ 300.182 Amendments to LEA policies and procedures.
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(a) Modification made by an LEA or a State agency. (1) Subject to paragraph (b) of this section, policies and procedures submitted by an LEA or a State agency in accordance with this subpart remain in effect until it submits to the SEA the modifications that the LEA or State agency decides are necessary.
(2) The provisions of this subpart apply to a modification to an LEA's or State agency's policies and procedures in the same manner and to the same extent that they apply to the LEA's or State agency's original policies and procedures.
(b) Modifications required by the SEA. The SEA may require an LEA or a State agency to modify its policies and procedures, but only to the extent necessary to ensure the LEA's or State agency's compliance with this part, if—
(1) After June 4, 1997, the provisions of the Act or the regulations in this part are amended;
(2) There is a new interpretation of the Act by Federal or State courts; or
(3) There is an official finding of noncompliance with Federal or State law or regulations.
(Authority: 20 U.S.C. 1413(b))
§ 300.183 [Reserved]
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§ 300.184 Excess cost requirement.
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(a) General. Amounts provided to an LEA under Part B of the Act may be used only to pay the excess costs of providing special education and related services to children with disabilities.
(b) Definition. As used in this part, the term excess costs means those costs that are in excess of the average annual per-student expenditure in an LEA during the preceding school year for an elementary or secondary school student, as may be appropriate. Excess costs must be computed after deducting—
(1) Amounts received—
(i) Under Part B of the Act;
(ii) Under Part A of title I of the Elementary and Secondary Education Act of 1965; or
(iii) Under Part A of title VII of that Act; and
(2) Any State or local funds expended for programs that would qualify for assistance under any of those parts.
(c) LLimitation on use of Part B funds. (1) The excess cost requirement prevents an LEA from using funds provided under Part B of the Act to pay for all of the costs directly attributable to the education of a child with a disability, subject to paragraph (c)(2) of this section.
(2) The excess cost requirement does not prevent an LEA from using Part B funds to pay for all of the costs directly attributable to the education of a child with a disability in any of the ages 3, 4, 5, 18, 19, 20, or 21, if no local or State funds are available for nondisabled children in that age range. However, the LEA must comply with the nonsupplanting and other requirements of this part in providing the education and services for these children.
(Authority: 20 U.S.C. 1401(7), 1413(a)(2)(A))
§ 300.185 Meeting the excess cost requirement.
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(a)(1) General. An LEA meets the excess cost requirement if it has spent at least a minimum average amount for the education of its children with disabilities before funds under Part B of the Act are used.
(2) The amount described in paragraph (a)(1) of this section is determined using the formula in §300.184(b). This amount may not include capital outlay or debt service.
(b) Joint establishment of eligibility. If two or more LEAs jointly establish eligibility in accordance with §300.190, the minimum average amount is the average of the combined minimum average amounts determined under §300.184 in those agencies for elementary or secondary school students, as the case may be.
(Authority: 20 U.S.C. 1413(a)(2)(A))
§§ 300.186-300.189 [Reserved]
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§ 300.190 Joint establishment of eligibility.
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(a) General. An SEA may require an LEA to establish its eligibility jointly with another LEA if the SEA determines that the LEA would be ineligible under this section because the agency would not be able to establish and maintain programs of sufficient size and scope to effectively meet the needs of children with disabilities.
(b) Charter school exception. An SEA may not require a charter school that is an LEA to jointly establish its eligibility under paragraph (a) of this section unless it is explicitly permitted to do so under the State's charter school statute.
(c) Amount of payments. If an SEA requires the joint establishment of eligibility under paragraph (a) of this section, the total amount of funds made available to the affected LEAs must be equal to the sum of the payments that each LEA would have received under §§300.711–300.714 if the agencies were eligible for these payments.
(Authority: 20 U.S.C. 1413(e)(1), and (2))
§ 300.191 [Reserved]
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§ 300.192 Requirements for establishing eligibility.
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(a) Requirements for LEAs in general. LEAs that establish joint eligibility under this section must—
(1) Adopt policies and procedures that are consistent with the State's policies and procedures under §§300.121–300.156; and
(2) Be jointly responsible for implementing programs that receive assistance under Part B of the Act.
(b) Requirements for educational service agencies in general. If an educational service agency is required by State law to carry out programs under Part B of the Act, the joint responsibilities given to LEAs under Part B of the Act—
(1) Do not apply to the administration and disbursement of any payments received by that educational service agency; and
(2) Must be carried out only by that educational service agency.
(c) Additional requirement. Notwithstanding any other provision of §§300.190–300.192, an educational service agency shall provide for the education of children with disabilities in the least restrictive environment, as required by §300.130.
(Authority: 20 U.S.C. 1413(e)(3), and (4))
§ 300.193 [Reserved]
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§ 300.194 State agency eligibility.
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Any State agency that desires to receive a subgrant for any fiscal year under §§300.711–300.714 must demonstrate to the satisfaction of the SEA that—
(a) All children with disabilities who are participating in programs and projects funded under Part B of the Act receive FAPE, and that those children and their parents are provided all the rights and procedural safeguards described in this part; and
(b) The agency meets the other conditions of this subpart that apply to LEAs.
(Authority: 20 U.S.C. 1413(i))
§ 300.195 [Reserved]
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§ 300.196 Notification of LEA or State agency in case of ineligibility.
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If the SEA determines that an LEA or State agency is not eligible under Part B of the Act, the SEA shall—
(a) Notify the LEA or State agency of that determination; and
(b) Provide the LEA or State agency with reasonable notice and an opportunity for a hearing.
(Authority: 20 U.S.C. 1413(c))
§ 300.197 LEA and State agency compliance.
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(a) General. If the SEA, after reasonable notice and an opportunity for a hearing, finds that an LEA or State agency that has been determined to be eligible under this section is failing to comply with any requirement described in §§300.220–300.250, the SEA shall reduce or may not provide any further payments to the LEA or State agency until the SEA is satisfied that the LEA or State agency is complying with that requirement.
(b) Notice requirement. Any State agency or LEA in receipt of a notice described in paragraph (a) of this section shall, by means of public notice, take the measures necessary to bring the pendency of an action pursuant to this section to the attention of the public within the jurisdiction of the agency.
(c) In carrying out its functions under this section, each SEA shall consider any decision resulting from a hearing under §§300.507–300.528 that is adverse to the LEA or State agency involved in the decision.
(Authority: 20 U.S.C. 1413(d))
LEA and State Agency Eligibility—Specific Conditions
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§ 300.220 Consistency with State policies.
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(a) General. The LEA, in providing for the education of children with disabilities within its jurisdiction, must have in effect policies, procedures, and programs that are consistent with the State policies and procedures established under §§300.121–300.156.
(b) Policies on file with SEA. The LEA must have on file with the SEA the policies and procedures described in paragraph (a) of this section.
(Authority: 20 U.S.C. 1413(a)(1))
§ 300.221 Implementation of CSPD.
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The LEA must have on file with the SEA information to demonstrate that—
(a) All personnel necessary to carry out Part B of the Act within the jurisdiction of the agency are appropriately and adequately prepared, consistent with the requirements of §§300.380–300.382; and
(b) To the extent the LEA determines appropriate, it shall contribute to and use the comprehensive system of personnel development of the State established under §300.135.
(Authority: 20 U.S.C. 1413(a)(3))
§§ 300.222-300.229 [Reserved]
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§ 300.230 Use of amounts.
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The LEA must have on file with the SEA information to demonstrate that amounts provided to the LEA under Part B of the Act—
(a) Will be expended in accordance with the applicable provisions of this part;
(b) Will be used only to pay the excess costs of providing special education and related services to children with disabilities, consistent with §§300.184–300.185; and
(c) Will be used to supplement State, local, and other Federal funds and not to supplant those funds.
(Authority: 20 U.S.C. 1413(a)(2)(A))
§ 300.231 Maintenance of effort.
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(a) General. Except as provided in §§300.232 and 300.233, funds provided to an LEA under Part B of the Act may not be used to reduce the level of expenditures for the education of children with disabilities made by the LEA from local funds below the level of those expenditures for the preceding fiscal year.
(b) Information. The LEA must have on file with the SEA information to demonstrate that the requirements of paragraph (a) of this section are met.
(c) Standard. (1) Except as provided in paragraph (c)(2) of this section, the SEA determines that an LEA complies with paragraph (a) of this section for purposes of establishing the LEA's eligibility for an award for a fiscal year if the LEA budgets, for the education of children with disabilities, at least the same total or per-capita amount from either of the following sources as the LEA spent for that purpose from the same source for the most recent prior year for which information is available:
(i) Local funds only.
(ii) The combination of State and local funds.
(2) An LEA that relies on paragraph (c)(1)(i) of this section for any fiscal year must ensure that the amount of local funds it budgets for the education of children with disabilities in that year is at least the same, either in total or per capita, as the amount it spent for that purpose in—
(i) The most recent fiscal year for which information is available, if that year is, or is before, the first fiscal year beginning on or after July 1, 1997; or
(ii) If later, the most recent fiscal year for which information is available and the standard in paragraph (c)(1)(i) of this section was used to establish its compliance with this section.
(3) The SEA may not consider any expenditures made from funds provided by the Federal Government for which the SEA is required to account to the Federal Government or for which the LEA is required to account to the Federal Government directly or through the SEA in determining an LEA's compliance with the requirement in paragraph (a) of this section.
(Authority: 20 U.S.C. 1413(a)(2)(A))
§ 300.232 Exception to maintenance of effort.
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An LEA may reduce the level of expenditures by the LEA under Part B of the Act below the level of those expenditures for the preceding fiscal year if the reduction is attributable to the following:
(a)(1) The voluntary departure, by retirement or otherwise, or departure for just cause, of special education or related services personnel, who are replaced by qualified, lower-salaried staff.
(2) In order for an LEA to invoke the exception in paragraph (a)(1) of this section, the LEA must ensure that those voluntary retirements or resignations and replacements are in full conformity with:
(i) Existing school board policies in the agency;
(ii) The applicable collective bargaining agreement in effect at that time; and
(iii) Applicable State statutes.
(b) A decrease in the enrollment of children with disabilities.
(c) The termination of the obligation of the agency, consistent with this part, to provide a program of special education to a particular child with a disability that is an exceptionally costly program, as determined by the SEA, because the child—
(1) Has left the jurisdiction of the agency;
(2) Has reached the age at which the obligation of the agency to provide FAPE to the child has terminated; or
(3) No longer needs the program of special education.
(d) The termination of costly expenditures for long-term purchases, such as the acquisition of equipment or the construction of school facilities.
(Authority: 20 U.S.C. 1413(a)(2)(B))
§ 300.233 Treatment of Federal funds in certain fiscal years.
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(a)(1) Subject to paragraphs (a)(2), (a)(3), and (b) of this section, for any fiscal year for which amounts appropriated to carry out section 611 of the Act exceed $4.1 billion, an LEA may treat as local funds up to 20 percent of the amount of funds it is eligible to receive under §300.712 from that appropriation that exceeds the amount from funds appropriated for the previous fiscal year that the LEA was eligible to receive under §300.712.
(2) The requirements of §§300.230(c) and 300.231 do not apply with respect to the amount that may be treated as local funds under paragraph (a)(1) of this section.
(3) For purposes of this section:
(i)(A) An LEA is not eligible to receive funds during any period in which those funds under this part are withheld from the LEA because of a finding of noncompliance under §300.197 or §300.587.
(B) An LEA is eligible to receive funds that have been withheld under §300.197 or §300.587 but are subsequently released to the LEA within the period of the funds availability.
(ii) An LEA is not eligible to receive funds that have been reallocated to other LEAs under §300.714.
(b) If an SEA determines that an LEA is not meeting the requirements of this part, the SEA may prohibit the LEA from treating funds received under Part B of the Act as local funds under paragraph (a)(1) of this section for any fiscal year, but only if it is authorized to do so by the State constitution or a State statute.
(Authority: 20 U.S.C. 1413(a)(2)(C))
[64 FR 12418, Mar. 12, 1999, as amended at 66 FR 1476, Jan. 8, 2001]
§ 300.234 Schoolwide programs under title I of the ESEA.
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(a) General; limitation on amount of Part B funds used. An LEA may use funds received under Part B of the Act for any fiscal year to carry out a schoolwide program under section 1114 of the Elementary and Secondary Education Act of 1965, except that the amount used in any schoolwide program may not exceed—
(1)(i) The amount received by the LEA under Part B for that fiscal year; divided by
(ii) The number of children with disabilities in the jurisdiction of the LEA; and multiplied by
(2) The number of children with disabilities participating in the schoolwide program.
(b) Funding conditions. The funds described in paragraph (a) of this section are subject to the following conditions:
(1) The funds must be considered as Federal Part B funds for purposes of the calculations required by §§300.230(b) and (c).
(2) The funds may be used without regard to the requirements of §300.230(a).
(c) Meeting other Part B requirements. Except as provided in paragraph (b) of this section, all other requirements of Part B must be met by an LEA using Part B funds in accordance with paragraph (a) of this section, including ensuring that children with disabilities in schoolwide program schools—
(1) Receive services in accordance with a properly developed IEP; and
(2) Are afforded all of the rights and services guaranteed to children with disabilities under the IDEA.
(Authority: 20 U.S.C. 1413(a)(2)(D))
§ 300.235 Permissive use of funds.
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(a) General. Subject to paragraph (b) of this section, funds provided to an LEA under Part B of the Act may be used for the following activities:
(1) Services and aids that also benefit nondisabled children. For the costs of special education and related services and supplementary aids and services provided in a regular class or other education-related setting to a child with a disability in accordance with the IEP of the child, even if one or more nondisabled children benefit from these services.
(2) Integrated and coordinated services system. To develop and implement a fully integrated and coordinated services system in accordance with §300.244.
(b) Non-applicability of certain provisions. An LEA does not violate §§300.152, 300.230, and 300.231 based on its use of funds provided under Part B of the Act in accordance with paragraphs (a)(1) and (a)(2) of this section.
(Authority: 20 U.S.C. 1413(a)(4))
§§ 300.236-300.239 [Reserved]
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§ 300.240 Information for SEA.
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(a) The LEA shall provide the SEA with information necessary to enable the SEA to carry out its duties under Part B of the Act, including, with respect to §§300.137 and 300.138, information relating to the performance of children with disabilities participating in programs carried out under Part B of the Act.
(b) The LEA must have on file with the SEA an assurance satisfactory to the SEA that the LEA will comply with the requirements of paragraph (a) of this section.
(Authority: 20 U.S.C. 1413(a)(6))
§ 300.241 Treatment of charter schools and their students.
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The LEA must have on file with the SEA information to demonstrate that in carrying out this part with respect to charter schools that are public schools of the LEA, the LEA will—
(a) Serve children with disabilities attending those schools in the same manner as it serves children with disabilities in its other schools; and
(b) Provide funds under Part B of the Act to those schools in the same manner as it provides those funds to its other schools.
(Authority: 20 U.S.C. 1413(a)(5))
§ 300.242 Public information.
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The LEA must have on file with the SEA information to demonstrate to the satisfaction of the SEA that it will make available to parents of children with disabilities and to the general public all documents relating to the eligibility of the agency under Part B of the Act.
(Authority: 20 U.S.C. 1413(a)(7))
§ 300.243 [Reserved]
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§ 300.244 Coordinated services system.
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(a) General. An LEA may not use more than 5 percent of the amount the agency receives under Part B of the Act for any fiscal year, in combination with other amounts (which must include amounts other than education funds), to develop and implement a coordinated services system designed to improve results for children and families, including children with disabilities and their families.
(b) Activities. In implementing a coordinated services system under this section, an LEA may carry out activities that include—
(1) Improving the effectiveness and efficiency of service delivery, including developing strategies that promote accountability for results;
(2) Service coordination and case management that facilitate the linkage of IEPs under Part B of the Act and IFSPs under Part C of the Act with individualized service plans under multiple Federal and State programs, such as title I of the Rehabilitation Act of 1973 (vocational rehabilitation), title XIX of the Social Security Act (Medicaid), and title XVI of the Social Security Act (supplemental security income);
(3) Developing and implementing interagency financing strategies for the provision of education, health, mental health, and social services, including transition services and related services under the Act; and
(4) Interagency personnel development for individuals working on coordinated services.
(c) Coordination with certain projects under Elementary and Secondary Education Act of 1965. If an LEA is carrying out a coordinated services project under title XI of the Elementary and Secondary Education Act of 1965 and a coordinated services project under Part B of the Act in the same schools, the agency shall use the amounts under §300.244 in accordance with the requirements of that title.
(Authority: 20 U.S.C. 1413(f))
School-Based Improvement Plan
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§ 300.245 School-based improvement plan.
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(a) General. Each LEA may, in accordance with paragraph (b) of this section, use funds made available under Part B of the Act to permit a public school within the jurisdiction of the LEA to design, implement, and evaluate a school-based improvement plan that—
(1) Is consistent with the purposes described in section 651(b) of the Act; and
(2) Is designed to improve educational and transitional results for all children with disabilities and, as appropriate, for other children consistent with §300.235(a) and (b) in that public school.
(b) Authority—(1) General. An SEA may grant authority to an LEA to permit a public school described in §300.245 (through a school-based standing panel established under §300.247(b)) to design, implement, and evaluate a school-based improvement plan described in §300.245 for a period not to exceed 3 years.
(2) Responsibility of LEA. If an SEA grants the authority described in paragraph (b)(1) of this section, an LEA that is granted this authority must have the sole responsibility of oversight of all activities relating to the design, implementation, and evaluation of any school-based improvement plan that a public school is permitted to design under this section.
(Authority: 20 U.S.C. 1413(g)(1) and (g)(2)).
§ 300.246 Plan requirements.
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A school-based improvement plan described in §300.245 must—
(a) Be designed to be consistent with the purposes described in section 651(b) of the Act and to improve educational and transitional results for all children with disabilities and, as appropriate, for other children consistent with §300.235(a) and (b), who attend the school for which the plan is designed and implemented;
(b) Be designed, evaluated, and, as appropriate, implemented by a school-based standing panel established in accordance with §300.247(b);
(c) Include goals and measurable indicators to assess the progress of the public school in meeting these goals; and
(d) Ensure that all children with disabilities receive the services described in their IEPs.
(Authority: 20 U.S.C. 1413(g)(3))
§ 300.247 Responsibilities of the LEA.
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An LEA that is granted authority under §300.245(b) to permit a public school to design, implement, and evaluate a school-based improvement plan shall—
(a) Select each school under the jurisdiction of the agency that is eligible to design, implement, and evaluate the plan;
(b) Require each school selected under paragraph (a) of this section, in accordance with criteria established by the LEA under paragraph (c) of this section, to establish a school-based standing panel to carry out the duties described in §300.246(b);
(c) Establish—
(1) Criteria that must be used by the LEA in the selection of an eligible school under paragraph (a) of this section;
(2) Criteria that must be used by a public school selected under paragraph (a) of this section in the establishment of a school-based standing panel to carry out the duties described in §300.246(b) and that ensure that the membership of the panel reflects the diversity of the community in which the public school is located and includes, at a minimum—
(i) Parents of children with disabilities who attend a public school, including parents of children with disabilities from unserved and underserved populations, as appropriate;
(ii) Special education and general education teachers of public schools;
(iii) Special education and general education administrators, or the designee of those administrators, of those public schools; and
(iv) Related services providers who are responsible for providing services to the children with disabilities who attend those public schools; and
(3) Criteria that must be used by the LEA with respect to the distribution of funds under Part B of the Act to carry out this section;
(d) Disseminate the criteria established under paragraph (c) of this section to local school district personnel and local parent organizations within the jurisdiction of the LEA;
(e) Require a public school that desires to design, implement, and evaluate a school-based improvement plan to submit an application at the time, in the manner and accompanied by the information, that the LEA shall reasonably require; and
(f) Establish procedures for approval by the LEA of a school-based improvement plan designed under Part B of the Act.
(Authority:1413(g)(4))
§ 300.248 Limitation.
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A school-based improvement plan described in §300.245(a) may be submitted to an LEA for approval only if a consensus with respect to any matter relating to the design, implementation, or evaluation of the goals of the plan is reached by the school-based standing panel that designed the plan.
(Authority: 20 U.S.C. 1413(g)(5))
§ 300.249 Additional requirements.
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(a) Parental involvement. In carrying out the requirements of §§300.245–300.250, an LEA shall ensure that the parents of children with disabilities are involved in the design, evaluation, and, if appropriate, implementation of school-based improvement plans in accordance with this section.
(b) Plan approval. An LEA may approve a school-based improvement plan of a public school within the jurisdiction of the agency for a period of 3 years, if—
(1) The approval is consistent with the policies, procedures, and practices established by the LEA and in accordance with §§300.245–300.250; and
(2) A majority of parents of children who are members of the school-based standing panel, and a majority of other members of the school-based standing panel that designed the plan, agree in writing to the plan.
(Authority: 20 U.S.C. 1413(g)(6))
§ 300.250 Extension of plan.
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If a public school within the jurisdiction of an LEA meets the applicable requirements and criteria described in §§300.246 and 300.247 at the expiration of the 3-year approval period described §300.249(b), the agency may approve a school-based improvement plan of the school for an additional 3-year period.
(Authority: 20 U.S.C. 1413(g)(7))
Secretary of the Interior—Eligibility
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§ 300.260 Submission of information.
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The Secretary may provide the Secretary of the Interior amounts under §300.715(b) and (c) for a fiscal year only if the Secretary of the Interior submits to the Secretary information that—
(a) Meets the requirements of section 612(a)(1), (3)—(9), (10)(B), (C), (11)—(12), (14)—(17), (20), (21) and (22) of the Act (including monitoring and evaluation activities);
(b) Meets the requirements of section 612(b) and (e) of the Act;
(c) Meets the requirements of section 613(a)(1), (2)(A)(i), (6), and (7) of the Act;
(d) Meets the requirements of this part that implement the sections of the Act listed in paragraphs (a)–(c) of this section;
(e) Includes a description of how the Secretary of the Interior will coordinate the provision of services under Part B of the Act with LEAs, tribes and tribal organizations, and other private and Federal service providers;
(f) Includes an assurance that there are public hearings, adequate notice of the hearings, and an opportunity for comment afforded to members of tribes, tribal governing bodies, and affected local school boards before the adoption of the policies, programs, and procedures described in paragraph (a) of this section;
(g) Includes an assurance that the Secretary of the Interior will provide the information that the Secretary may require to comply with section 618 of the Act, including data on the number of children with disabilities served and the types and amounts of services provided and needed;
(h)(1) Includes an assurance that the Secretary of the Interior and the Secretary of Health and Human Services have entered into a memorandum of agreement, to be provided to the Secretary, for the coordination of services, resources, and personnel between their respective Federal, State, and local offices and with the SEAs and LEAs and other entities to facilitate the provision of services to Indian children with disabilities residing on or near reservations.
(2) The agreement must provide for the apportionment of responsibilities and costs, including child find, evaluation, diagnosis, remediation or therapeutic measures, and (if appropriate) equipment and medical or personal supplies, as needed for a child with a disability to remain in a school or program; and
(i) Includes an assurance that the Department of the Interior will cooperate with the Department in its exercise of monitoring and oversight of the requirements in this section and §§300.261–300.267, and any agreements entered into between the Secretary of the Interior and other entities under Part B of the Act, and will fulfill its duties under Part B of the Act. Section 616(a) of the Act applies to the information described in this section.
(Authority: 20 U.S.C. 1411(i)(2))
§ 300.261 Public participation.
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In fulfilling the requirements of §300.260 the Secretary of the Interior shall provide for public participation consistent with §§300.280–300.284.
(Authority: 20 U.S.C. 1411(i))
§ 300.262 Use of Part B funds.
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(a) The Department of the Interior may use five percent of its payment under §300.715(b) and (c) in any fiscal year, or $500,000, whichever is greater, for administrative costs in carrying out the provisions of this part.
(b) Payments to the Secretary of the Interior under §300.716 must be used in accordance with that section.
(Authority: 20 U.S.C. 1411(i))
§ 300.263 Plan for coordination of services.
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(a) The Secretary of the Interior shall develop and implement a plan for the coordination of services for all Indian children with disabilities residing on reservations covered under Part B of the Act.
(b) The plan must provide for the coordination of services benefiting these children from whatever source, including tribes, the Indian Health Service, other BIA divisions, and other Federal agencies.
(c) In developing the plan, the Secretary of the Interior shall consult with all interested and involved parties.
(d) The plan must be based on the needs of the children and the system best suited for meeting those needs, and may involve the establishment of cooperative agreements between the BIA, other Federal agencies, and other entities.
(e) The plan also must be distributed upon request to States, SEAs and LEAs, and other agencies providing services to infants, toddlers, and children with disabilities, to tribes, and to other interested parties.
(Authority: 20 U.S.C. 1411(i)(4))
§ 300.264 Definitions.
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(a) Indian. As used in this part, the term Indian means an individual who is a member of an Indian tribe.
(b) Indian tribe. As used in this part, the term Indian tribe means any Federal or State Indian tribe, band, rancheria, pueblo, colony, or community, including any Alaska Native village or regional village corporation (as defined in or established under the Alaska Native Claims Settlement Act).
(Authority: 20 U.S.C. 1401(9) and (10))
§ 300.265 Establishment of advisory board.
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(a) To meet the requirements of section 612(a)(21) of the Act, the Secretary of the Interior shall establish, not later than December 4, 1997 under the BIA, an advisory board composed of individuals involved in or concerned with the education and provision of services to Indian infants, toddlers, and children with disabilities, including Indians with disabilities, Indian parents of the children, teachers, service providers, State and local educational officials, representatives of tribes or tribal organizations, representatives from State Interagency Coordinating Councils under section 641 of the Act in States having reservations, and other members representing the various divisions and entities of the BIA. The chairperson must be selected by the Secretary of the Interior.
(b) The advisory board shall—
(1) Assist in the coordination of services within the BIA and with other local, State, and Federal agencies in the provision of education for infants, toddlers, and children with disabilities;
(2) Advise and assist the Secretary of the Interior in the performance of the Secretary's responsibilities described in section 611(i) of the Act;
(3) Develop and recommend policies concerning effective inter- and intra-agency collaboration, including modifications to regulations, and the elimination of barriers to inter- and intra-agency programs and activities;
(4) Provide assistance and disseminate information on best practices, effective program coordination strategies, and recommendations for improved educational programming for Indian infants, toddlers, and children with disabilities; and
(5) Provide assistance in the preparation of information required under §300.260(g).
(Authority: 20 U.S.C. 1411(i)(5))
§ 300.266 Annual report by advisory board.
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(a) General. The advisory board established under §300.265 shall prepare and submit to the Secretary of the Interior and to the Congress an annual report containing a description of the activities of the advisory board for the preceding year.
(b) Report to the Secretary. The Secretary of the Interior shall make available to the Secretary the report described in paragraph (a) of this section.
(Authority: 20 U.S.C. 1411(i)(6)(A))
§ 300.267 Applicable regulations.
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The Secretary of the Interior shall comply with the requirements of §§300.301–300.303, 300.305–300.309, 300.340–300.348, 300.351, 300.360–300.382, 300.400–300.402, 300.500–300.586, 300.600–300.621, and 300.660–300.662.
(Authority: 20 U.S.C. 1411(i)(2)(A))
Public Participation
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§ 300.280 Public hearings before adopting State policies and procedures.
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Prior to its adoption of State policies and procedures related to this part, the SEA shall—
(a) Make the policies and procedures available to the general public;
(b) Hold public hearings; and
(c) Provide an opportunity for comment by the general public on the policies and procedures.
(Authority: 20 U.S.C. 1412(a)(20))
§ 300.281 Notice.
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(a) The SEA shall provide adequate notice to the general public of the public hearings.
(b) The notice must be in sufficient detail to inform the general public about—
(1) The purpose and scope of the State policies and procedures and their relation to Part B of the Act;
(2) The availability of the State policies and procedures;
(3) The date, time, and location of each public hearing;
(4) The procedures for submitting written comments about the policies and procedures; and
(5) The timetable for submitting the policies and procedures to the Secretary for approval.
(c) The notice must be published or announced—
(1) In newspapers or other media, or both, with circulation adequate to notify the general public about the hearings; and
(2) Enough in advance of the date of the hearings to afford interested parties throughout the State a reasonable opportunity to participate.
(Authority: 20 U.S.C. 1412(a)(20))
§ 300.282 Opportunity to participate; comment period.
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(a) The SEA shall conduct the public hearings at times and places that afford interested parties throughout the State a reasonable opportunity to participate.
(b) The policies and procedures must be available for comment for a period of at least 30 days following the date of the notice under §300.281.
(Authority: 20 U.S.C. 1412(a)(20))
§ 300.283 Review of public comments before adopting policies and procedures.
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Before adopting the policies and procedures, the SEA shall—
(a) Review and consider all public comments; and
(b) Make any necessary modifications in those policies and procedures.
(Authority: 20 U.S.C. 1412(a)(20))
§ 300.284 Publication and availability of approved policies and procedures.
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After the Secretary approves a State's policies and procedures, the SEA shall give notice in newspapers or other media, or both, that the policies and procedures are approved. The notice must name places throughout the State where the policies and procedures are available for access by any interested person.
(Authority: 20 U.S.C. 1412(a)(20))
Subpart C—Services
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Free Appropriate Public Education
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§ 300.300 Provision of FAPE.
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(a) General. (1) Subject to paragraphs (b) and (c) of this section and §300.311, each State receiving assistance under this part shall ensure that FAPE is available to all children with disabilities, aged 3 through 21, residing in the State, including children with disabilities who have been suspended or expelled from school.
(2) As a part of its obligation under paragraph (a)(1) of this section, each State must ensure that the requirements of §300.125 (to identify, locate, and evaluate all children with disabilities) are implemented by public agencies throughout the State.
(3)(i) The services provided to the child under this part address all of the child's identified special education and related services needs described in paragraph (a) of this section.
(ii) The services and placement needed by each child with a disability to receive FAPE must be based on the child's unique needs and not on the child's disability.
(b) Exception for age ranges 3–5 and 18–21. This paragraph provides the rules for applying the requirements in paragraph (a) of this section to children with disabilities aged 3, 4, 5, 18, 19, 20, and 21 within the State:
(1) If State law or a court order requires the State to provide education for children with disabilities in any disability category in any of these age groups, the State must make FAPE available to all children with disabilities of the same age who have that disability.
(2) If a public agency provides education to nondisabled children in any of these age groups, it must make FAPE available to at least a proportionate number of children with disabilities of the same age.
(3) If a public agency provides education to 50 percent or more of its children with disabilities in any disability category in any of these age groups, it must make FAPE available to all its children with disabilities of the same age who have that disability. This provision does not apply to children aged 3 through 5 for any fiscal year for which the State receives a grant under section 619(a)(1) of the Act.
(4) If a public agency provides education to a child with a disability in any of these age groups, it must make FAPE available to that child and provide that child and his or her parents all of the rights under Part B of the Act and this part.
(5) A State is not required to make FAPE available to a child with a disability in one of these age groups if—
(i) State law expressly prohibits, or does not authorize, the expenditure of public funds to provide education to nondisabled children in that age group; or
(ii) The requirement is inconsistent with a court order that governs the provision of free public education to children with disabilities in that State.
(c) Children aged 3 through 21 on Indian reservations. With the exception of children identified in §300.715(b) and (c), the SEA shall ensure that all of the requirements of Part B of the Act are implemented for all children with disabilities aged 3 through 21 on reservations.
(Authority: 20 U.S.C. 1412(a)(1), 1411(i)(1)(C), S. Rep. No. 94–168, p. 19 (1975))
§ 300.301 FAPE—methods and payments.
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(a) Each State may use whatever State, local, Federal, and private sources of support are available in the State to meet the requirements of this part. For example, if it is necessary to place a child with a disability in a residential facility, a State could use joint agreements between the agencies involved for sharing the cost of that placement.
(b) Nothing in this part relieves an insurer or similar third party from an otherwise valid obligation to provide or to pay for services provided to a child with a disability.
(c) Consistent with §§300.342(b)(2) and 300.343(b), the State must ensure that there is no delay in implementing a child's IEP, including any case in which the payment source for providing or paying for special education and related services to the child is being determined.
(Authority: 20 U.S.C. 1401(8), 1412(a)(1))
§ 300.302 Residential placement.
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If placement in a public or private residential program is necessary to provide special education and related services to a child with a disability, the program, including non-medical care and room and board, must be at no cost to the parents of the child.
(Authority: 20 U.S.C. 1412(a)(1), 1412(a)(10)(B))
§ 300.303 Proper functioning of hearing aids.
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Each public agency shall ensure that the hearing aids worn in school by children with hearing impairments, including deafness, are functioning properly.
(Authority: 20 U.S.C. 1412(a)(1))
§ 300.304 Full educational opportunity goal.
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Each SEA shall ensure that each public agency establishes and implements a goal of providing full educational opportunity to all children with disabilities in the area served by the public agency.
(Authority: 20 U.S.C. 1412(a)(2)
§ 300.305 Program options.
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Each public agency shall take steps to ensure that its children with disabilities have available to them the variety of educational programs and services available to nondisabled children in the area served by the agency, including art, music, industrial arts, consumer and homemaking education, and vocational education.
(Authority: 20 U.S.C. 1412(a)(2), 1413(a)(1))
§ 300.306 Nonacademic services.
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(a) Each public agency shall take steps to provide nonacademic and extracurricular services and activities in the manner necessary to afford children with disabilities an equal opportunity for participation in those services and activities.
(b) Nonacademic and extracurricular services and activities may include counseling services, athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the public agency, referrals to agencies that provide assistance to individuals with disabilities, and employment of students, including both employment by the public agency and assistance in making outside employment available.
(Authority: 20 U.S.C. 1412(a)(1))
§ 300.307 Physical education.
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(a) General. Physical education services, specially designed if necessary, must be made available to every child with a disability receiving FAPE.
(b) Regular physical education. Each child with a disability must be afforded the opportunity to participate in the regular physical education program available to nondisabled children unless—
(1) The child is enrolled full time in a separate facility; or
(2) The child needs specially designed physical education, as prescribed in the child's IEP.
(c) Special physical education. If specially designed physical education is prescribed in a child's IEP, the public agency responsible for the education of that child shall provide the services directly or make arrangements for those services to be provided through other public or private programs.
(d) Education in separate facilities. The public agency responsible for the education of a child with a disability who is enrolled in a separate facility shall ensure that the child receives appropriate physical education services in compliance with paragraphs (a) and (c) of this section.
(Authority: 20 U.S.C. 1412(a)(25), 1412(a)(5)(A))
§ 300.308 Assistive technology.
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(a) Each public agency shall ensure that assistive technology devices or assistive technology services, or both, as those terms are defined in §§300.5–300.6, are made available to a child with a disability if required as a part of the child's—
(1) Special education under §300.26;
(2) Related services under §300.24; or
(3) Supplementary aids and services under §§300.28 and 300.550(b)(2).
(b) On a case-by-case basis, the use of school-purchased assistive technology devices in a child's home or in other settings is required if the child's IEP team determines that the child needs access to those devices in order to receive FAPE.
(Authority: 20 U.S.C. 1412(a)(12)(B)(i))
§ 300.309 Extended school year services.
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(a) General. (1) Each public agency shall ensure that extended school year services are available as necessary to provide FAPE, consistent with paragraph (a)(2) of this section.
(2) Extended school year services must be provided only if a child's IEP team determines, on an individual basis, in accordance with §§300.340–300.350, that the services are necessary for the provision of FAPE to the child.
(3) In implementing the requirements of this section, a public agency may not—
(i) Limit extended school year services to particular categories of disability; or
(ii) Unilaterally limit the type, amount, or duration of those services.
(b) Definition. As used in this section, the term extended school year services means special education and related services that—
(1) Are provided to a child with a disability—
(i) Beyond the normal school year of the public agency;
(ii) In accordance with the child's IEP; and
(iii) At no cost to the parents of the child; and
(2) Meet the standards of the SEA.
(Authority: 20 U.S.C. 1412(a)(1))
§ 300.310 [Reserved]
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§ 300.311 FAPE requirements for students with disabilities in adult prisons.
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(a) Exception to FAPE for certain students. Except as provided in §300.122(a)(2)(ii), the obligation to make FAPE available to all children with disabilities does not apply with respect to students aged 18 through 21 to the extent that State law does not require that special education and related services under Part B of the Act be provided to students with disabilities who, in the last educational placement prior to their incarceration in an adult correctional facility—
(1) Were not actually identified as being a child with a disability under §300.7; and
(2) Did not have an IEP under Part B of the Act.
(b) Requirements that do not apply. The following requirements do not apply to students with disabilities who are convicted as adults under State law and incarcerated in adult prisons:
(1) The requirements contained in §300.138 and §300.347(a)(5)(i) (relating to participation of children with disabilities in general assessments).
(2) The requirements in §300.347(b) (relating to transition planning and transition services), with respect to the students whose eligibility under Part B of the Act will end, because of their age, before they will be eligible to be released from prison based on consideration of their sentence and eligibility for early release.
(c) Modifications of IEP or placement. (1) Subject to paragraph (c)(2) of this section, the IEP team of a student with a disability, who is convicted as an adult under State law and incarcerated in an adult prison, may modify the student's IEP or placement if the State has demonstrated a bona fide security or compelling penological interest that cannot otherwise be accommodated.
(2) The requirements of §§300.340(a) and 300.347(a) relating to IEPs, and 300.550(b) relating to LRE, do not apply with respect to the modifications described in paragraph (c)(1) of this section.
(Authority: 20 U.S.C. 1412(a)(1), 1414(d)(6))
§ 300.312 Children with disabilities in public charter schools.
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(a) Children with disabilities who attend public charter schools and their parents retain all rights under this part.
(b) If the public charter school is an LEA, consistent with §300.17, that receives funding under §§300.711–300.714, that charter school is responsible for ensuring that the requirements of this part are met, unless State law assigns that responsibility to some other entity.
(c) If the public charter school is a school of an LEA that receives funding under §§300.711–300.714 and includes other public schools—
(1) The LEA is responsible for ensuring that the requirements of this part are met, unless State law assigns that responsibility to some other entity; and
(2) The LEA must meet the requirements of §300.241.
(d)(1) If the public charter school is not an LEA receiving funding under §§300.711–300.714, or a school that is part of an LEA receiving funding under §§300.711–300.714, the SEA is responsible for ensuring that the requirements of this part are met.
(2) Paragraph (d)(1) of this section does not preclude a State from assigning initial responsibility for ensuring the requirements of this part are met to another entity; however, the SEA must maintain the ultimate responsibility for ensuring compliance with this part, consistent with §300.600.
(Authority: 20 U.S.C. 1413(a)(5))
§ 300.313 Children experiencing developmental delays.
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(a) Use of term developmental delay. (1) A State that adopts the term developmental delay under §300.7(b) determines whether it applies to children aged 3 through 9, or to a subset of that age range (e.g., ages 3 through 5).
(2) A State may not require an LEA to adopt and use the term developmental delay for any children within its jurisdiction.
(3) If an LEA uses the term developmental delay for children described in §300.7(b), the LEA must conform to both the State's definition of that term and to the age range that has been adopted by the State.
(4) If a State does not adopt the term developmental delay, an LEA may not independently use that term as a basis for establishing a child's eligibility under this part.
(b) Use of individual disability categories. (1) Any State or LEA that elects to use the term developmental delay for children aged 3 through 9 may also use one or more of the disability categories described in §300.7 for any child within that age range if it is determined, through the evaluation conducted under §§300.530–300.536, that the child has an impairment described in §300.7, and because of that impairment needs special education and related services.
(2) The State or LEA shall ensure that all of the child's special education and related services needs that have been identified through the evaluation described in paragraph (b)(1) of this section are appropriately addressed.
(c) Common definition of developmental delay. A State may adopt a common definition of developmental delay for use in programs under Parts B and C of the Act.
(Authority: 20 U.S.C. 1401(3)(A) and (B))
Evaluations and Reevaluations
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§ 300.320 Initial evaluations.
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(a) Each public agency shall ensure that a full and individual evaluation is conducted for each child being considered for special education and related services under Part B of the Act—
(1) To determine if the child is a “child with a disability” under §300.7; and
(2) To determine the educational needs of the child.
(b) In implementing the requirements of paragraph (a) of this section, the public agency shall ensure that—
(1) The evaluation is conducted in accordance with the procedures described in §§300.530–300.535; and
(2) The results of the evaluation are used by the child's IEP team in meeting the requirements of §§300.340–300.350.
(Authority: 20 U.S.C. 1414(a), (b), and (c))
§ 300.321 Reevaluations.
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Each public agency shall ensure that—
(a) A reevaluation of each child with a disability is conducted in accordance with §300.536; and
(b) The results of any reevaluations are addressed by the child's IEP team under §§300.340–300.349 in reviewing and, as appropriate, revising the child's IEP.
(Authority: 20 U.S.C. 1414(a)(2))
§§ 300.322-300.324 [Reserved]
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Individualized Education Programs
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§ 300.340 Definitions related to IEPs.
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(a) Individualized education program. As used in this part, the term individualized education program or IEP means a written statement for a child with a disability that is developed, reviewed, and revised in a meeting in accordance with §§300.341–300.350.
(b) Participating agency. As used in §300.348, participating agency means a State or local agency, other than the public agency responsible for a student's education, that is financially and legally responsible for providing transition services to the student.
(Authority: 20 U.S.C. 1401(11), 1412(a)(10)(B))
§ 300.341 Responsibility of SEA and other public agencies for IEPs.
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(a) The SEA shall ensure that each public agency—
(1) Except as provided in §§300.450–300.462, develops and implements an IEP for each child with a disability served by that agency; and
(2) Ensures that an IEP is developed and implemented for each eligible child placed in or referred to a private school or facility by the public agency.
(b) Paragraph (a) of this section applies to—
(1) The SEA, if it is involved in providing direct services to children with disabilities, in accordance with §300.370(a) and (b)(1); and
(2) Except as provided in §300.600(d), the other public agencies described in §300.2, including LEAs and other State agencies that provide special education and related services either directly, by contract, or through other arrangements.
(Authority: 20 U.S.C. 1412(a)(4), (a)(10)(B))
§ 300.342 When IEPs must be in effect.
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(a) General. At the beginning of each school year, each public agency shall have an IEP in effect for each child with a disability within its jurisdiction.
(b) Implementation of IEPs. Each public agency shall ensure that—
(1) An IEP—
(i) Is in effect before special education and related services are provided to an eligible child under this part; and
(ii) Is implemented as soon as possible following the meetings described under §300.343;
(2) The child's IEP is accessible to each regular education teacher, special education teacher, related service provider, and other service provider who is responsible for its implementation; and
(3) Each teacher and provider described in paragraph (b)(2) of this section is informed of—
(i) His or her specific responsibilities related to implementing the child's IEP; and
(ii) The specific accommodations, modifications, and supports that must be provided for the child in accordance with the IEP.
(c) IEP or IFSP for children aged 3 through 5. (1) In the case of a child with a disability aged 3 through 5 (or, at the discretion of the SEA a 2-year-old child with a disability who will turn age 3 during the school year), an IFSP that contains the material described in section 636 of the Act, and that is developed in accordance with §§300.341–300.346 and §§300.349–300.350, may serve as the IEP of the child if using that plan as the IEP is—
(i) Consistent with State policy; and
(ii) Agreed to by the agency and the child's parents.
(2) In implementing the requirements of paragraph (c)(1) of this section, the public agency shall—
(i) Provide to the child's parents a detailed explanation of the differences between an IFSP and an IEP; and
(ii) If the parents choose an IFSP, obtain written informed consent from the parents.
(d) Effective date for new requirements. All IEPs developed, reviewed, or revised on or after July 1, 1998 must meet the requirements of §§300.340–300.350.
(Authority: 20 U.S.C. 1414(d)(2)(A) and (B), Pub. L. 105–17, sec. 201(a)(2)(A), (C)
§ 300.343 IEP meetings.
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(a) General. Each public agency is responsible for initiating and conducting meetings for the purpose of developing, reviewing, and revising the IEP of a child with a disability (or, if consistent with §300.342(c), an IFSP).
(b) Initial IEPs; provision of services. (1) Each public agency shall ensure that within a reasonable period of time following the agency's receipt of parent consent to an initial evaluation of a child—
(i) The child is evaluated; and
(ii) If determined eligible under this part, special education and related services are made available to the child in accordance with an IEP.
(2) In meeting the requirement in paragraph (b)(1) of this section, a meeting to develop an IEP for the child must be conducted within 30-days of a determination that the child needs special education and related services.
(c) Review and revision of IEPs. Each public agency shall ensure that the IEP team—
(1) Reviews the child's IEP periodically, but not less than annually, to determine whether the annual goals for the child are being achieved; and
(2) Revises the IEP as appropriate to address—
(i) Any lack of expected progress toward the annual goals described in §300.347(a), and in the general curriculum, if appropriate;
(ii) The results of any reevaluation conducted under §300.536;
(iii) Information about the child provided to, or by, the parents, as described in §300.533(a)(1);
(iv) The child's anticipated needs; or
(v) Other matters.
(Authority: 20 U.S.C. 1413(a)(1), 1414(d)(4)(A)
§ 300.344 IEP team.
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(a) General. The public agency shall ensure that the IEP team for each child with a disability includes—
(1) The parents of the child;
(2) At least one regular education teacher of the child (if the child is, or may be, participating in the regular education environment);
(3) At least one special education teacher of the child, or if appropriate, at least one special education provider of the child;
(4) A representative of the public agency who—
(i) Is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;
(ii) Is knowledgeable about the general curriculum; and
(iii) Is knowledgeable about the availability of resources of the public agency;
(5) An individual who can interpret the instructional implications of evaluation results, who may be a member of the team described in paragraphs (a)(2) through (6) of this section;
(6) At the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and
(7) If appropriate, the child.
(b) Transition services participants. (1) Under paragraph (a)(7) of this section, the public agency shall invite a student with a disability of any age to attend his or her IEP meeting if a purpose of the meeting will be the consideration of—
(i) The student's transition services needs under §300.347(b)(1);
(ii) The needed transition services for the student under §300.347(b)(2); or
(iii) Both.
(2) If the student does not attend the IEP meeting, the public agency shall take other steps to ensure that the student's preferences and interests are considered.
(3)(i) In implementing the requirements of §300.347(b)(2), the public agency also shall invite a representative of any other agency that is likely to be responsible for providing or paying for transition services.
(ii) If an agency invited to send a representative to a meeting does not do so, the public agency shall take other steps to obtain participation of the other agency in the planning of any transition services.
(c) Determination of knowledge and special expertise. The determination of the knowledge or special expertise of any individual described in paragraph (a)(6) of this section shall be made by the party (parents or public agency) who invited the individual to be a member of the IEP.
(d) Designating a public agency representative. A public agency may designate another public agency member of the IEP team to also serve as the agency representative, if the criteria in paragraph (a)(4) of this section are satisfied.
(Authority: 20 U.S.C. 1401(30), 1414(d)(1)(A)(7), (B))
§ 300.345 Parent participation.
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(a) Public agency responsibility—general. Each public agency shall take steps to ensure that one or both of the parents of a child with a disability are present at each IEP meeting or are afforded the opportunity to participate, including—
(1) Notifying parents of the meeting early enough to ensure that they will have an opportunity to attend; and
(2) Scheduling the meeting at a mutually agreed on time and place.
(b) Information provided to parents. (1) The notice required under paragraph (a)(1) of this section must—
(i) Indicate the purpose, time, and location of the meeting and who will be in attendance; and
(ii) Inform the parents of the provisions in §300.344(a)(6) and (c) (relating to the participation of other individuals on the IEP team who have knowledge or special expertise about the child).
(2) For a student with a disability beginning at age 14, or younger, if appropriate, the notice must also—
(i) Indicate that a purpose of the meeting will be the development of a statement of the transition services needs of the student required in §300.347(b)(1); and
(ii) Indicate that the agency will invite the student.
(3) For a student with a disability beginning at age 16, or younger, if appropriate, the notice must—
(i) Indicate that a purpose of the meeting is the consideration of needed transition services for the student required in §300.347(b)(2);
(ii) Indicate that the agency will invite the student; and
(iii) Identify any other agency that will be invited to send a representative.
(c) Other methods to ensure parent participation. If neither parent can attend, the public agency shall use other methods to ensure parent participation, including individual or conference telephone calls.
(d) Conducting an IEP meeting without a parent in attendance. A meeting may be conducted without a parent in attendance if the public agency is unable to convince the parents that they should attend. In this case the public agency must have a record of its attempts to arrange a mutually agreed on time and place, such as—
(1) Detailed records of telephone calls made or attempted and the results of those calls;
(2) Copies of correspondence sent to the parents and any responses received; and
(3) Detailed records of visits made to the parent's home or place of employment and the results of those visits.
(e) Use of interpreters or other action, as appropriate. The public agency shall take whatever action is necessary to ensure that the parent understands the proceedings at the IEP meeting, including arranging for an interpreter for parents with deafness or whose native language is other than English.
(f) Parent copy of child's IEP. The public agency shall give the parent a copy of the child's IEP at no cost to the parent.
(Authority: 20 U.S.C. 1414(d)(1)(B)(i))
§ 300.346 Development, review, and revision of IEP.
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(a) Development of IEP—(1) General. In developing each child's IEP, the IEP team, shall consider—
(i) The strengths of the child and the concerns of the parents for enhancing the education of their child;
(ii) The results of the initial or most recent evaluation of the child; and
(iii) As appropriate, the results of the child's performance on any general State or district-wide assessment programs.
(2) Consideration of special factors. The IEP team also shall—
(i) In the case of a child whose behavior impedes his or her learning or that of others, consider, if appropriate, strategies, including positive behavioral interventions, strategies, and supports to address that behavior;
(ii) In the case of a child with limited English proficiency, consider the language needs of the child as those needs relate to the child's IEP;
(iii) In the case of a child who is blind or visually impaired, provide for instruction in Braille and the use of Braille unless the IEP team determines, after an evaluation of the child's reading and writing skills, needs, and appropriate reading and writing media (including an evaluation of the child's future needs for instruction in Braille or the use of Braille), that instruction in Braille or the use of Braille is not appropriate for the child;
(iv) Consider the communication needs of the child, and in the case of a child who is deaf or hard of hearing, consider the child's language and communication needs, opportunities for direct communications with peers and professional personnel in the child's language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child's language and communication mode; and
(v) Consider whether the child requires assistive technology devices and services.
(b) Review and Revision of IEP. In conducting a meeting to review, and, if appropriate, revise a child's IEP, the IEP team shall consider the factors described in paragraph (a) of this section.
(c) Statement in IEP. If, in considering the special factors described in paragraphs (a)(1) and (2) of this section, the IEP team determines that a child needs a particular device or service (including an intervention, accommodation, or other program modification) in order for the child to receive FAPE, the IEP team must include a statement to that effect in the child's IEP.
(d) Requirement with respect to regular education teacher. The regular education teacher of a child with a disability, as a member of the IEP team, must, to the extent appropriate, participate in the development, review, and revision of the child's IEP, including assisting in the determination of—
(1) Appropriate positive behavioral interventions and strategies for the child; and
(2) Supplementary aids and services, program modifications or supports for school personnel that will be provided for the child, consistent with §300.347(a)(3).
(e) Construction. Nothing in this section shall be construed to require the IEP team to include information under one component of a child's IEP that is already contained under another component of the child's IEP.
(Authority: 20 U.S.C. 1414(d)(3) and (4)(B) and (e))
§ 300.347 Content of IEP.
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(a) General. The IEP for each child with a disability must include—
(1) A statement of the child's present levels of educational performance, including—
(i) How the child's disability affects the child's involvement and progress in the general curriculum (i.e., the same curriculum as for nondisabled children); or
(ii) For preschool children, as appropriate, how the disability affects the child's participation in appropriate activities;
(2) A statement of measurable annual goals, including benchmarks or short-term objectives, related to—
(i) Meeting the child's needs that result from the child's disability to enable the child to be involved in and progress in the general curriculum (i.e., the same curriculum as for nondisabled children), or for preschool children, as appropriate, to participate in appropriate activities; and
(ii) Meeting each of the child's other educational needs that result from the child's disability;
(3) A statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child—
(i) To advance appropriately toward attaining the annual goals;
(ii) To be involved and progress in the general curriculum in accordance with paragraph (a)(1) of this section and to participate in extracurricular and other nonacademic activities; and
(iii) To be educated and participate with other children with disabilities and nondisabled children in the activities described in this section;
(4) An explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in the activities described in paragraph (a)(3) of this section;
(5)(i) A statement of any individual modifications in the administration of State or district-wide assessments of student achievement that are needed in order for the child to participate in the assessment; and
(ii) If the IEP team determines that the child will not participate in a particular State or district-wide assessment of student achievement (or part of an assessment), a statement of—
(A) Why that assessment is not appropriate for the child; and
(B) How the child will be assessed;
(6) The projected date for the beginning of the services and modifications described in paragraph (a)(3) of this section, and the anticipated frequency, location, and duration of those services and modifications; and
(7) A statement of—
(i) How the child's progress toward the annual goals described in paragraph (a)(2) of this section will be measured; and
(ii) How the child's parents will be regularly informed (through such means as periodic report cards), at least as often as parents are informed of their nondisabled children's progress, of—
(A) Their child's progress toward the annual goals; and
(B) The extent to which that progress is sufficient to enable the child to achieve the goals by the end of the year.
(b) Transition services. The IEP must include—
(1) For each student with a disability beginning at age 14 (or younger, if determined appropriate by the IEP team), and updated annually, a statement of the transition service needs of the student under the applicable components of the student's IEP that focuses on the student's courses of study (such as participation in advanced-placement courses or a vocational education program); and
(2) For each student beginning at age 16 (or younger, if determined appropriate by the IEP team), a statement of needed transition services for the student, including, if appropriate, a statement of the interagency responsibilities or any needed linkages.
(c) Transfer of rights. In a State that transfers rights at the age majority, beginning at least one year before a student reaches the age of majority under State law, the student's IEP must include a statement that the student has been informed of his or her rights under Part B of the Act, if any, that will transfer to the student on reaching the age of majority, consistent with §300.517.
(d) Students with disabilities convicted as adults and incarcerated in adult prisons. Special rules concerning the content of IEPs for students with disabilities convicted as adults and incarcerated in adult prisons are contained in §300.311(b) and (c).
(Authority: 20 U.S.C. 1414(d)(1)(A) and (d)(6)(A)(ii))
§ 300.348 Agency responsibilities for transition services.
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(a) If a participating agency, other than the public agency, fails to provide the transition services described in the IEP in accordance with §300.347(b)(1), the public agency shall reconvene the IEP team to identify alternative strategies to meet the transition objectives for the student set out in the IEP.
(b) Nothing in this part relieves any participating agency, including a State vocational rehabilitation agency, of the responsibility to provide or pay for any transition service that the agency would otherwise provide to students with disabilities who meet the eligibility criteria of that agency.
(Authority: 20 U.S.C. 1414(d)(5); 1414(d)(1)(A)(vii))
§ 300.349 Private school placements by public agencies.
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(a) Developing IEPs. (1) Before a public agency places a child with a disability in, or refers a child to, a private school or facility, the agency shall initiate and conduct a meeting to develop an IEP for the child in accordance with §§300.346 and 300.347.
(2) The agency shall ensure that a representative of the private school or facility attends the meeting. If the representative cannot attend, the agency shall use other methods to ensure participation by the private school or facility, including individual or conference telephone calls.
(b) Reviewing and revising IEPs. (1) After a child with a disability enters a private school or facility, any meetings to review and revise the child's IEP may be initiated and conducted by the private school or facility at the discretion of the public agency.
(2) If the private school or facility initiates and conducts these meetings, the public agency shall ensure that the parents and an agency representative—
(i) Are involved in any decision about the child's IEP; and
(ii) Agree to any proposed changes in the IEP before those changes are implemented.
(c) Responsibility. Even if a private school or facility implements a child's IEP, responsibility for compliance with this part remains with the public agency and the SEA.
(Authority: 20 U.S.C. 1412(a)(10)(B))
§ 300.350 IEP—accountability.
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(a) Provision of services. Subject to paragraph (b) of this section, each public agency must—
(1) Provide special education and related services to a child with a disability in accordance with the child's IEP; and
(2) Make a good faith effort to assist the child to achieve the goals and objectives or benchmarks listed in the IEP.
(b) Accountability. Part B of the Act does not require that any agency, teacher, or other person be held accountable if a child does not achieve the growth projected in the annual goals and benchmarks or objectives. However, the Act does not prohibit a State or public agency from establishing its own accountability systems regarding teacher, school, or agency performance.
(c) Construction—parent rights. Nothing in this section limits a parent's right to ask for revisions of the child's IEP or to invoke due process procedures if the parent feels that the efforts required in paragraph (a) of this section are not being made.
(Authority: 20 U.S.C. 1414(d)); Cong. Rec. at H7152 (daily ed., July 21, 1975))
Direct Services by the Sea
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§ 300.360 Use of LEA allocation for direct services.
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(a) General. An SEA shall use the payments that would otherwise have been available to an LEA or to a State agency to provide special education and related services directly to children with disabilities residing in the area served by that local agency, or for whom that State agency is responsible, if the SEA determines that the LEA or State agency—
(1) Has not provided the information needed to establish the eligibility of the agency under Part B of the Act;
(2) Is unable to establish and maintain programs of FAPE that meet the requirements of this part;
(3) Is unable or unwilling to be consolidated with one or more LEAs in order to establish and maintain the programs; or
(4) Has one or more children with disabilities who can best be served by a regional or State program or service-delivery system designed to meet the needs of these children.
(b) SEA responsibility if an LEA does not apply for Part B funds. (1) If an LEA elects not to apply for its Part B allotment, the SEA must use those funds to ensure that FAPE is available to all eligible children residing in the jurisdiction of the LEA.
(2)(i) If the local allotment is not sufficient to meet the purpose described in paragraph (b)(1) of this section, the SEA must ensure compliance with §§300.121(a) and 300.300(a).
(ii) Consistent with §300.301(a), the [State; SEA] may use whatever funding sources are available in the State to implement paragraph (b)(2)(i) of this section.
(c) SEA administrative procedures. (1) In meeting the requirements in paragraph (a) of this section, the SEA may provide special education and related services directly, by contract, or through other arrangements.
(2) The excess cost requirements of §§300.184 and 300.185 do not apply to the SEA.
(Authority: 20 U.S.C. 1413(h)(1))
§ 300.361 Nature and location of services.
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The SEA may provide special education and related services under §300.360(a) in the manner and at the location it considers appropriate (including regional and State centers). However, the manner in which the education and services are provided must be consistent with the requirements of this part (including the LRE provisions of §§300.550–300.556).
(Authority: 20 U.S.C. 1413(h)(2))
§§ 300.362-300.369 [Reserved]
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§ 300.370 Use of SEA allocations.
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(a) Each State shall use any funds it retains under §300.602 and does not use for administration under §300.620 for any of the following:
(1) Support and direct services, including technical assistance and personnel development and training.
(2) Administrative costs of monitoring and complaint investigation, but only to the extent that those costs exceed the costs incurred for those activities during fiscal year 1985.
(3) To establish and implement the mediation process required by §300.506, including providing for the costs of mediators and support personnel.
(4) To assist LEAs in meeting personnel shortages.
(5) To develop a State Improvement Plan under subpart 1 of Part D of the Act.
(6) Activities at the State and local levels to meet the performance goals established by the State under §300.137 and to support implementation of the State Improvement Plan under subpart 1 of Part D of the Act if the State receives funds under that subpart.
(7) To supplement other amounts used to develop and implement a Statewide coordinated services system designed to improve results for children and families, including children with disabilities and their families, but not to exceed one percent of the amount received by the State under section 611 of the Act. This system must be coordinated with and, to the extent appropriate, build on the system of coordinated services developed by the State under Part C of the Act.
(8) For subgrants to LEAs for the purposes described in §300.622 (local capacity building).
(b) For the purposes of paragraph (a) of this section—
(1) Direct services means services provided to a child with a disability by the State directly, by contract, or through other arrangements; and
(2) Support services includes implementing the comprehensive system of personnel development under §§300.380–300.382, recruitment and training of mediators, hearing officers, and surrogate parents, and public information and parent training activities relating to FAPE for children with disabilities.
(c) Of the funds an SEA retains under paragraph (a) of this section, the SEA may use the funds directly, or distribute them to LEAs on a competitive, targeted, or formula basis.
(Authority: 20 U.S.C. 1411(f)(3))
§ 300.371 [Reserved]
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§ 300.372 Nonapplicability of requirements that prohibit commingling and supplanting of funds.
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A State may use funds it retains under §300.602 without regard to—
(a) The prohibition on commingling of funds in §300.152; and
(b) The prohibition on supplanting other funds in §300.153.
(Authority: 20 U.S.C. 1411(f)(1)(C))
Comprehensive System of Personnel Development (CSPD)
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§ 300.380 General CSPD requirements.
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(a) Each State shall develop and implement a comprehensive system of personnel development that—
(1) Is consistent with the purposes of this part and with section 635(a)(8) of the Act;
(2) Is designed to ensure an adequate supply of qualified special education, regular education, and related services personnel;
(3) Meets the requirements of §§300.381 and 300.382; and
(4) Is updated at least every five years.
(b) A State that has a State improvement grant has met the requirements of paragraph (a) of this section.
(Authority: 20 U.S.C. 1412(a)(14))
§ 300.381 Adequate supply of qualified personnel.
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Each State must include, at least, an analysis of State and local needs for professional development for personnel to serve children with disabilities that includes, at a minimum—
(a) The number of personnel providing special education and related services; and
(b) Relevant information on current and anticipated personnel vacancies and shortages (including the number of individuals described in paragraph (a) of this section with temporary certification), and on the extent of certification or retraining necessary to eliminate these shortages, that is based, to the maximum extent possible, on existing assessments of personnel needs.
(Authority: 20 U.S.C. 1453(b)(2)(B))
§ 300.382 Improvement strategies.
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Each State must describe the strategies the State will use to address the needs identified under §300.381. These strategies must include how the State will address the identified needs for in-service and pre-service preparation to ensure that all personnel who work with children with disabilities (including both professional and paraprofessional personnel who provide special education, general education, related services, or early intervention services) have the skills and knowledge necessary to meet the needs of children with disabilities. The plan must include a description of how the State will—
(a) Prepare general and special education personnel with the content knowledge and collaborative skills needed to meet the needs of children with disabilities including how the State will work with other States on common certification criteria;
(b) Prepare professionals and paraprofessionals in the area of early intervention with the content knowledge and collaborative skills needed to meet the needs of infants and toddlers with disabilities;
(c) Work with institutions of higher education and other entities that (on both a pre-service and an in-service basis) prepare personnel who work with children with disabilities to ensure that those institutions and entities develop the capacity to support quality professional development programs that meet State and local needs;
(d) Work to develop collaborative agreements with other States for the joint support and development of programs to prepare personnel for which there is not sufficient demand within a single State to justify support or development of a program of preparation;
(e) Work in collaboration with other States, particularly neighboring States, to address the lack of uniformity and reciprocity in credentialing of teachers and other personnel;
(f) Enhance the ability of teachers and others to use strategies, such as behavioral interventions, to address the conduct of children with disabilities that impedes the learning of children with disabilities and others;
(g) Acquire and disseminate, to teachers, administrators, school board members, and related services personnel, significant knowledge derived from educational research and other sources, and how the State will, if appropriate, adopt promising practices, materials, and technology;
(h) Recruit, prepare, and retain qualified personnel, including personnel with disabilities and personnel from groups that are under-represented in the fields of regular education, special education, and related services;
(i) Insure that the plan is integrated, to the maximum extent possible, with other professional development plans and activities, including plans and activities developed and carried out under other Federal and State laws that address personnel recruitment and training; and
(j) Provide for the joint training of parents and special education, related services, and general education personnel.
(Authority: 20 U.S.C. 1453 (c)(3)(D))
§§ 300.383-300.387 [Reserved]
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Subpart D—Children in Private Schools
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Children With Disabilities in Private Schools Placed or Referred by Public Agencies
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§ 300.400 Applicability of §§300.400–300.402.
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Sections 300.401–300.402 apply only to children with disabilities who are or have been placed in or referred to a private school or facility by a public agency as a means of providing special education and related services.
(Authority: 20 U.S.C. 1412(a)(10)(B))
§ 300.401 Responsibility of State educational agency.
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Each SEA shall ensure that a child with a disability who is placed in or referred to a private school or facility by a public agency—
(a) Is provided special education and related services—
(1) In conformance with an IEP that meets the requirements of §§300.340–300.350; and
(2) At no cost to the parents;
(b) Is provided an education that meets the standards that apply to education provided by the SEA and LEAs (including the requirements of this part); and
(c) Has all of the rights of a child with a disability who is served by a public agency.
(Authority: 20 U.S.C. 1412(a)(10)(B))
§ 300.402 Implementation by State educational agency.
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In implementing §300.401, the SEA shall—
(a) Monitor compliance through procedures such as written reports, on-site visits, and parent questionnaires;
(b) Disseminate copies of applicable standards to each private school and facility to which a public agency has referred or placed a child with a disability; and
(c) Provide an opportunity for those private schools and facilities to participate in the development and revision of State standards that apply to them.
(Authority: 20 U.S.C. 1412(a)(10)(B))
Children With Disabilities Enrolled by Their Parents in Private Schools When FAPE Is at Issue
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§ 300.403 Placement of children by parents if FAPE is at issue.
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(a) General. This part does not require an LEA to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made FAPE available to the child and the parents elected to place the child in a private school or facility. However, the public agency shall include that child in the population whose needs are addressed consistent with §§300.450–300.462.
(b) Disagreements about FAPE. Disagreements between a parent and a public agency regarding the availability of a program appropriate for the child, and the question of financial responsibility, are subject to the due process procedures of §§300.500–300.517.
(c) Reimbursement for private school placement. If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private preschool, elementary, or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made FAPE available to the child in a timely manner prior to that enrollment and that the private placement is appropriate. A parental placement may be found to be appropriate by a hearing officer or a court even if it does not meet the State standards that apply to education provided by the SEA and LEAs.
(d) Limitation on reimbursement. The cost of reimbursement described in paragraph (c) of this section may be reduced or denied—
(1) If—
(i) At the most recent IEP meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP team that they were rejecting the placement proposed by the public agency to provide FAPE to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or
(ii) At least ten (10) business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in paragraph (d)(1)(i) of this section;
(2) If, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in §300.503(a)(1), of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for the evaluation; or
(3) Upon a judicial finding of unreasonableness with respect to actions taken by the parents.
(e) Exception. Notwithstanding the notice requirement in paragraph (d)(1) of this section, the cost of reimbursement may not be reduced or denied for failure to provide the notice if—
(1) The parent is illiterate and cannot write in English;
(2) Compliance with paragraph (d)(1) of this section would likely result in physical or serious emotional harm to the child;
(3) The school prevented the parent from providing the notice; or
(4) The parents had not received notice, pursuant to section 615 of the Act, of the notice requirement in paragraph (d)(1) of this section.
(Authority: 20 U.S.C. 1412(a)(10)(C))
Children With Disabilities Enrolled by Their Parents in Private Schools
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§ 300.450 Definition of “private school children with disabilities.”
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As used in this part, private school children with disabilities means children with disabilities enrolled by their parents in private schools or facilities other than children with disabilities covered under §§300.400–300.402.
(Authority: 20 U.S.C. 1412(a)(10)(A))
§ 300.451 Child find for private school children with disabilities.
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(a) Each LEA shall locate, identify, and evaluate all private school children with disabilities, including religious-school children residing in the jurisdiction of the LEA, in accordance with §§300.125 and 300.220. The activities undertaken to carry out this responsibility for private school children with disabilities must be comparable to activities undertaken for children with disabilities in public schools.
(b) Each LEA shall consult with appropriate representatives of private school children with disabilities on how to carry out the activities described in paragraph (a) of this section.
(Authority: 20 U.S.C. 1412(a)(10)(A)(ii))
§ 300.452 Provision of services—basic requirement.
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(a) General. To the extent consistent with their number and location in the State, provision must be made for the participation of private school children with disabilities in the program assisted or carried out under Part B of the Act by providing them with special education and related services in accordance with §§300.453–300.462.
(b) SEA Responsibility—services plan. Each SEA shall ensure that, in accordance with paragraph (a) of this section and §§300.454–300.456, a services plan is developed and implemented for each private school child with a disability who has been designated to receive special education and related services under this part.
(Authority: 20 U.S.C. 1412(a)(10)(A)(i))
§ 300.453 Expenditures.
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(a) Formula. To meet the requirement of §300.452(a), each LEA must spend on providing special education and related services to private school children with disabilities—
(1) For children aged 3 through 21, an amount that is the same proportion of the LEA's total subgrant under section 611(g) of the Act as the number of private school children with disabilities aged 3 through 21 residing in its jurisdiction is to the total number of children with disabilities in its jurisdiction aged 3 through 21; and
(2) For children aged 3 through 5, an amount that is the same proportion of the LEA's total subgrant under section 619(g) of the Act as the number of private school children with disabilities aged 3 through 5 residing in its jurisdiction is to the total number of children with disabilities in its jurisdiction aged 3 through 5.
(b) Child count. (1) Each LEA shall—
(i) Consult with representatives of private school children in deciding how to conduct the annual count of the number of private school children with disabilities; and
(ii) Ensure that the count is conducted on December 1 or the last Friday of October of each year.
(2) The child count must be used to determine the amount that the LEA must spend on providing special education and related services to private school children with disabilities in the next subsequent fiscal year.
(c) Expenditures for child find may not be considered. Expenditures for child find activities described in §300.451 may not be considered in determining whether the LEA has met the requirements of paragraph (a) of this section.
(d) Additional services permissible. State and local educational agencies are not prohibited from providing services to private school children with disabilities in excess of those required by this part, consistent with State law or local policy.
(Authority: 20 U.S.C. 1412(a)(10)(A))
§ 300.454 Services determined.
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(a) No individual right to special education and related services. (1) No private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school.
(2) Decisions about the services that will be provided to private school children with disabilities under §§300.452–300.462, must be made in accordance with paragraphs (b), and (c) of this section.
(b) Consultation with representatives of private school children with disabilities—(1) General. Each LEA shall consult, in a timely and meaningful way, with appropriate representatives of private school children with disabilities in light of the funding under §300.453, the number of private school children with disabilities, the needs of private school children with disabilities, and their location to decide—
(i) Which children will receive services under §300.452;
(ii) What services will be provided;
(iii) How and where the services will be provided; and
(iv) How the services provided will be evaluated.
(2) Genuine opportunity. Each LEA shall give appropriate representatives of private school children with disabilities a genuine opportunity to express their views regarding each matter that is subject to the consultation requirements in this section.
(3) Timing. The consultation required by paragraph (b)(1) of this section must occur before the LEA makes any decision that affects the opportunities of private school children with disabilities to participate in services under §§300.452–300.462.
(4) Decisions. The LEA shall make the final decisions with respect to the services to be provided to eligible private school children.
(c) Services plan for each child served under §§300.450–300.462. If a child with a disability is enrolled in a religious or other private school and will receive special education or related services from an LEA, the LEA shall—
(1) Initiate and conduct meetings to develop, review, and revise a services plan for the child, in accordance with §300.455(b); and
(2) Ensure that a representative of the religious or other private school attends each meeting. If the representative cannot attend, the LEA shall use other methods to ensure participation by the private school, including individual or conference telephone calls.
(Authority: 1412(a)(10)(A))
§ 300.455 Services provided.
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(a) General. (1) The services provided to private school children with disabilities must be provided by personnel meeting the same standards as personnel providing services in the public schools.
(2) Private school children with disabilities may receive a different amount of services than children with disabilities in public schools.
(3) No private school child with a disability is entitled to any service or to any amount of a service the child would receive if enrolled in a public school.
(b) Services provided in accordance with a services plan. (1) Each private school child with a disability who has been designated to receive services under §300.452 must have a services plan that describes the specific special education and related services that the LEA will provide to the child in light of the services that the LEA has determined, through the process described in §§300.453–300.454, it will make available to private school children with disabilities.
(2) The services plan must, to the extent appropriate—
(i) Meet the requirements of §300.347, with respect to the services provided; and
(ii) Be developed, reviewed, and revised consistent with §§300.342–300.346.
(Authority: 20 U.S.C. 1412(a)(10)(A))
§ 300.456 Location of services; transportation.
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(a) On-site. Services provided to private school children with disabilities may be provided on-site at a child's private school, including a religious school, to the extent consistent with law.
(b) Transportation—(1) General. (i) If necessary for the child to benefit from or participate in the services provided under this part, a private school child with a disability must be provided transportation—
(A) From the child's school or the child's home to a site other than the private school; and
(B) From the service site to the private school, or to the child's home, depending on the timing of the services.
(ii) LEAs are not required to provide transportation from the child's home to the private school.
(2) Cost of transportation. The cost of the transportation described in paragraph (b)(1)(i) of this section may be included in calculating whether the LEA has met the requirement of §300.453.
(Authority: 20 U.S.C. 1412(a)(10)(A))
§ 300.457 Complaints.
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(a) Due process inapplicable. The procedures in §§300.504–300.515 do not apply to complaints that an LEA has failed to meet the requirements of §§300.452–300.462, including the provision of services indicated on the child's services plan.
(b) Due process applicable. The procedures in §§300.504–300.515 do apply to complaints that an LEA has failed to meet the requirements of §300.451, including the requirements of §§300.530–300.543.
(c) State complaints. Complaints that an SEA or LEA has failed to meet the requirements of §§300.451–300.462 may be filed under the procedures in §§300.660–300.662.
(Authority: 20 U.S.C. 1412(a)(10)(A))
§ 300.458 Separate classes prohibited.
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An LEA may not use funds available under section 611 or 619 of the Act for classes that are organized separately on the basis of school enrollment or religion of the students if—
(a) The classes are at the same site; and
(b) The classes include students enrolled in public schools and students enrolled in private schools.
(Authority: 20 U.S.C. 1412(a)(10)(A))
§ 300.459 Requirement that funds not benefit a private school.
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(a) An LEA may not use funds provided under section 611 or 619 of the Act to finance the existing level of instruction in a private school or to otherwise benefit the private school.
(b) The LEA shall use funds provided under Part B of the Act to meet the special education and related services needs of students enrolled in private schools, but not for—
(1) The needs of a private school; or
(2) The general needs of the students enrolled in the private school.
(Authority: 20 U.S.C. 1412(a)(10)(A))
§ 300.460 Use of public school personnel.
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An LEA may use funds available under sections 611 and 619 of the Act to make public school personnel available in other than public facilities—
(a) To the extent necessary to provide services under §§300.450–300.462 for private school children with disabilities; and
(b) If those services are not normally provided by the private school.
(Authority: 20 U.S.C. 1412(a)(10)(A))
§ 300.461 Use of private school personnel.
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An LEA may use funds available under section 611 or 619 of the Act to pay for the services of an employee of a private school to provide services under §§300.450–300.462 if—
(a) The employee performs the services outside of his or her regular hours of duty; and
(b) The employee performs the services under public supervision and control.
(Authority: 20 U.S.C. 1412(a)(10)(A))
§ 300.462 Requirements concerning property, equipment, and supplies for the benefit of private school children with disabilities.
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(a) A public agency must keep title to and exercise continuing administrative control of all property, equipment, and supplies that the public agency acquires with funds under section 611 or 619 of the Act for the benefit of private school children with disabilities.
(b) The public agency may place equipment and supplies in a private school for the period of time needed for the program.
(c) The public agency shall ensure that the equipment and supplies placed in a private school—
(1) Are used only for Part B purposes; and
(2) Can be removed from the private school without remodeling the private school facility.
(d) The public agency shall remove equipment and supplies from a private school if—
(1) The equipment and supplies are no longer needed for Part B purposes; or
(2) Removal is necessary to avoid unauthorized use of the equipment and supplies for other than Part B purposes.
(e) No funds under Part B of the Act may be used for repairs, minor remodeling, or construction of private school facilities.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Procedures for By-Pass
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§ 300.480 By-pass—general.
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(a) The Secretary implements a by-pass if an SEA is, and was on December 2, 1983, prohibited by law from providing for the participation of private school children with disabilities in the program assisted or carried out under Part B of the Act, as required by section 612(a)(10)(A) of the Act and by §§300.452–300.462.
(b) The Secretary waives the requirement of section 612(a)(10)(A) of the Act and of §§300.452–300.462 if the Secretary implements a by-pass.
(Authority: 20 U.S.C. 1412(f)(1))
§ 300.481 Provisions for services under a by-pass.
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(a) Before implementing a by-pass, the Secretary consults with appropriate public and private school officials, including SEA officials, in the affected State to consider matters such as—
(1) The prohibition imposed by State law that results in the need for a by-pass;
(2) The scope and nature of the services required by private school children with disabilities in the State, and the number of children to be served under the by-pass; and
(3) The establishment of policies and procedures to ensure that private school children with disabilities receive services consistent with the requirements of section 612(a)(10)(A) of the Act and §§300.452–300.462.
(b) After determining that a by-pass is required, the Secretary arranges for the provision of services to private school children with disabilities in the State in a manner consistent with the requirements of section 612(a)(10)(A) of the Act and §§300.452–300.462 by providing services through one or more agreements with appropriate parties.
(c) For any fiscal year that a by-pass is implemented, the Secretary determines the maximum amount to be paid to the providers of services by multiplying—
(1) A per child amount that may not exceed the amount per child provided by the Secretary under Part B of the Act for all children with disabilities in the State for the preceding fiscal year; by
(2) The number of private school children with disabilities (as defined by §§300.7(a) and 300.450) in the State, as determined by the Secretary on the basis of the most recent satisfactory data available, which may include an estimate of the number of those children with disabilities.
(d) The Secretary deducts from the State's allocation under Part B of the Act the amount the Secretary determines is necessary to implement a by-pass and pays that amount to the provider of services. The Secretary may withhold this amount from the State's allocation pending final resolution of any investigation or complaint that could result in a determination that a by-pass must be implemented.
(Authority: 20 U.S.C. 1412(f)(2))
§ 300.482 Notice of intent to implement a by-pass.
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(a) Before taking any final action to implement a by-pass, the Secretary provides the affected SEA with written notice.
(b) In the written notice, the Secretary—
(1) States the reasons for the proposed by-pass in sufficient detail to allow the SEA to respond; and
(2) Advises the SEA that it has a specific period of time (at least 45 days) from receipt of the written notice to submit written objections to the proposed by-pass and that it may request in writing the opportunity for a hearing to show cause why a by-pass should not be implemented.
(c) The Secretary sends the notice to the SEA by certified mail with return receipt requested.
(Authority: 20 U.S.C. 1412(f)(3)(A))
§ 300.483 Request to show cause.
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An SEA seeking an opportunity to show cause why a by-pass should not be implemented shall submit a written request for a show cause hearing to the Secretary.
(Authority: 20 U.S.C. 1412(f)(3))
§ 300.484 Show cause hearing.
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(a) If a show cause hearing is requested, the Secretary—
(1) Notifies the SEA and other appropriate public and private school officials of the time and place for the hearing; and
(2) Designates a person to conduct the show cause hearing. The designee must not have had any responsibility for the matter brought for a hearing.
(b) At the show cause hearing, the designee considers matters such as—
(1) The necessity for implementing a by-pass;
(2) Possible factual errors in the written notice of intent to implement a by-pass; and
(3) The objections raised by public and private school representatives.
(c) The designee may regulate the course of the proceedings and the conduct of parties during the pendency of the proceedings. The designee takes all steps necessary to conduct a fair and impartial proceeding, to avoid delay, and to maintain order.
(d) The designee may interpret applicable statutes and regulations, but may not waive them or rule on their validity.
(e) The designee arranges for the preparation, retention, and, if appropriate, dissemination of the record of the hearing.
(Authority: 20 U.S.C. 1412(f)(3))
§ 300.485 Decision.
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(a) The designee who conducts the show cause hearing—
(1) Issues a written decision that includes a statement of findings; and
(2) Submits a copy of the decision to the Secretary and sends a copy to each party by certified mail with return receipt requested.
(b) Each party may submit comments and recommendations on the designee's decision to the Secretary within 15 days of the date the party receives the designee's decision.
(c) The Secretary adopts, reverses, or modifies the designee's decision and notifies the SEA of the Secretary's final action. That notice is sent by certified mail with return receipt requested.
(Authority: 20 U.S.C. 1412(f)(3))
§ 300.486 Filing requirements.
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(a) Any written submission under §§300.482–300.485 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 or the hearing officer, 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. 1412(f)(3))
§ 300.487 Judicial review.
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If dissatisfied with the Secretary's final action, the SEA may, within 60 days after notice of that action, file a petition for review with the United States Court of Appeals for the circuit in which the State is located. The procedures for judicial review are described in section 612(f)(3)(B)–(D) of the Act.
(Authority: 20 U.S.C. 1412(f)(3)(B)–(D))
Subpart E—Procedural Safeguards
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Due Process Procedures for Parents and Children
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§ 300.500 General responsibility of public agencies; definitions.
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(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))
§ 300.501 Opportunity to examine records; parent participation in meetings.
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(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))
§ 300.502 Independent educational evaluation.
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(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))
§ 300.503 Prior notice by the public agency; content of notice.
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(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))
§ 300.504 Procedural safeguards notice.
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(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))
§ 300.505 Parental consent.
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(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))
§ 300.506 Mediation.
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(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))
§ 300.507 Impartial due process hearing; parent notice.
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(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))
§ 300.508 Impartial hearing officer.
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(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))
§ 300.509 Hearing rights.
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(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))
§ 300.510 Finality of decision; appeal; impartial review.
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(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.
(Authority: 20 U.S.C. 1415(i)(1)(A))
(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))
§ 300.511 Timelines and convenience of hearings and reviews.
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(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)
§ 300.512 Civil action.
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(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))
§ 300.513 Attorneys' fees.
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(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))
§ 300.514 Child's status during proceedings.
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(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))
§ 300.515 Surrogate parents.
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(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))
§ 300.516 [Reserved]
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§ 300.517 Transfer of parental rights at age of majority.
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(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
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§ 300.519 Change of placement for disciplinary removals.
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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.
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(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.
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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.
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(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.
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(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.
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(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.
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(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.
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(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.
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(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.
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(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.
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(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
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§ 300.530 General.
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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.
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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.
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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.
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(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.
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(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.
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(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.
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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
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§ 300.540 Additional team members.
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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.
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(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.
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(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.
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(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)
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§ 300.550 General LRE requirements.
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(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.
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(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.
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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.
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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.
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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.
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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.
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(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
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§ 300.560 Definitions.
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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.
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(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.
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(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.
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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.
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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.
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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.
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(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.
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(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.
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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.
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(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.
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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.
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(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.
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(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.
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(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.
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(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.
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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.
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(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.
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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
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§ 300.580 Determination by the Secretary that a State is eligible.
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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.
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(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.
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(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.
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(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.
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(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.
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(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.
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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.
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(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]
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§ 300.589 Waiver of requirement regarding supplementing and not supplanting with Part B funds.
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(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))
Subpart F—State Administration
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General
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§ 300.600 Responsibility for all educational programs.
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(a) The SEA is responsible for ensuring—
(1) That the requirements of this part are carried out; and
(2) That each educational program for children with disabilities administered within the State, including each program administered by any other State or local agency—
(i) Is under the general supervision of the persons responsible for educational programs for children with disabilities in the SEA; and
(ii) Meets the education standards of the SEA (including the requirements of this part).
(b) The State must comply with paragraph (a) of this section through State statute, State regulation, signed agreement between respective agency officials, or other documents.
(c) Part B of the Act does not limit the responsibility of agencies other than educational agencies for providing or paying some or all of the costs of FAPE to children with disabilities in the State.
(d) Notwithstanding paragraph (a) of this section, the Governor (or another individual pursuant to State law) may assign to any public agency in the State the responsibility of ensuring that the requirements of Part B of the Act are met with respect to students with disabilities who are convicted as adults under State law and incarcerated in adult prisons.
(Authority: 20 U.S.C. 1412(a)(11))
§ 300.601 Relation of Part B to other Federal programs.
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Part B of the Act may not be construed to permit a State to reduce medical and other assistance available to children with disabilities, or to alter the eligibility of a child with a disability, under title V (Maternal and Child Health) or title XIX (Medicaid) of the Social Security Act, to receive services that are also part of FAPE.
(Authority: 20 U.S.C. 1412(e))
§ 300.602 State-level activities.
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(a) Each State may retain not more than the amount described in paragraph (b) of this section for administration in accordance with §§300.620 and 300.621 and other State-level activities in accordance with §300.370.
(b) For each fiscal year, the Secretary determines and reports to the SEA an amount that is 25 percent of the amount the State received under this section for fiscal year 1997, cumulatively adjusted by the Secretary for each succeeding fiscal year by the lesser of—
(1) The percentage increase, if any, from the preceding fiscal year in the State's allocation under section 611 of the Act; or
(2) The rate of inflation, as measured by the percentage increase, if any, from the preceding fiscal year in the Consumer Price Index For All Urban Consumers, published by the Bureau of Labor Statistics of the Department of Labor.
(Authority: 20 U.S.C. 1411(f)(1)(A) and (B))
Use of Funds
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§ 300.620 Use of funds for State administration.
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(a) For the purpose of administering Part B of the Act, including section 619 of the Act (including the coordination of activities under Part B of the Act with, and providing technical assistance to, other programs that provide services to children with disabilities)—
(1) Each State may use not more than twenty percent of the maximum amount it may retain under §300.602(a) for any fiscal year or $500,000 (adjusted by the cumulative rate of inflation since fiscal year 1998, as measured by the percentage increase, if any, in the Consumer Price Index For All Urban Consumers, published by the Bureau of Labor Statistics of the Department of Labor), whichever is greater; and
(2) Each outlying area may use up to five percent of the amount it receives under this section for any fiscal year or $35,000, whichever is greater.
(b) Funds described in paragraph (a) of this section may also be used for the administration of Part C of the Act, if the SEA is the lead agency for the State under that part.
(Authority: 20 U.S.C. 1411(f)(2))
§ 300.621 Allowable costs.
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(a) The SEA may use funds under §300.620 for—
(1) Administration of State activities under Part B of the Act and for planning at the State level, including planning, or assisting in the planning, of programs or projects for the education of children with disabilities;
(2) Approval, supervision, monitoring, and evaluation of the effectiveness of local programs and projects for the education of children with disabilities;
(3) Technical assistance to LEAs with respect to the requirements of Part B of the Act;
(4) Leadership services for the program supervision and management of special education activities for children with disabilities; and
(5) Other State leadership activities and consultative services.
(b) The SEA shall use the remainder of its funds under §300.620 in accordance with §300.370.
(Authority: 20 U.S.C. 1411(f)(2))
§ 300.622 Subgrants to LEAs for capacity-building and improvement.
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In any fiscal year in which the percentage increase in the State's allocation under 611 of the Act exceeds the rate of inflation (as measured by the percentage increase, if any, from the preceding fiscal year in the Consumer Price Index For All Urban Consumers, published by the Bureau of Labor Statistics of the Department of Labor), each State shall reserve, from its allocation under 611 of the Act, the amount described in §300.623 to make subgrants to LEAs, unless that amount is less than $100,000, to assist them in providing direct services and in making systemic change to improve results for children with disabilities through one or more of the following:
(a) Direct services, including alternative programming for children who have been expelled from school, and services for children in correctional facilities, children enrolled in State-operated or State-supported schools, and children in charter schools.
(b) Addressing needs or carrying out improvement strategies identified in the State's Improvement Plan under subpart 1 of Part D of the Act.
(c) Adopting promising practices, materials, and technology, based on knowledge derived from education research and other sources.
(d) Establishing, expanding, or implementing interagency agreements and arrangements between LEAs and other agencies or organizations concerning the provision of services to children with disabilities and their families.
(e) Increasing cooperative problem-solving between parents and school personnel and promoting the use of alternative dispute resolution.
(Authority: 20 U.S.C. 1411(f)(4)(A))
§ 300.623 Amount required for subgrants to LEAs.
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For each fiscal year, the amount referred to in §300.622 is—
(a) The maximum amount the State was allowed to retain under §300.602(a) for the prior fiscal year, or, for fiscal year 1998, 25 percent of the State's allocation for fiscal year 1997 under section 611; multiplied by
(b) The difference between the percentage increase in the State's allocation under this section and the rate of inflation, as measured by the percentage increase, if any, from the preceding fiscal year in the Consumer Price Index For All Urban Consumers, published by the Bureau of Labor Statistics of the Department of Labor.
(Authority: 20 U.S.C. 1411(f)(4)(B))
§ 300.624 State discretion in awarding subgrants.
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The State may establish priorities in awarding subgrants under §300.622 to LEAs competitively or on a targeted basis.
(Authority: 20 U.S.C. 1411(f)(4)(A))
State Advisory Panel
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§ 300.650 Establishment of advisory panels.
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(a) Each State shall establish and maintain, in accordance with §§300.650–300.653, a State advisory panel on the education of children with disabilities.
(b) The advisory panel must be appointed by the Governor or any other official authorized under State law to make those appointments.
(c) If a State has an existing advisory panel that can perform the functions in §300.652, the State may modify the existing panel so that it fulfills all of the requirements of §§300.650–300.653, instead of establishing a new advisory panel.
(Authority: 20 U.S.C. 1412(a)(21)(A))
§ 300.651 Membership.
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(a) General. The membership of the State advisory panel must consist of members appointed by the Governor, or any other official authorized under State law to make these appointments, that is representative of the State population and that is composed of individuals involved in, or concerned with the education of children with disabilities, including—
(1) Parents of children with disabilities;
(2) Individuals with disabilities;
(3) Teachers;
(4) Representatives of institutions of higher education that prepare special education and related services personnel;
(5) State and local education officials;
(6) Administrators of programs for children with disabilities;
(7) Representatives of other State agencies involved in the financing or delivery of related services to children with disabilities;
(8) Representatives of private schools and public charter schools;
(9) At least one representative of a vocational, community, or business organization concerned with the provision of transition services to children with disabilities; and
(10) Representatives from the State juvenile and adult corrections agencies.
(b) Special rule. A majority of the members of the panel must be individuals with disabilities or parents of children with disabilities.
(Authority: 20 U.S.C. 1412(a)(21)(B) and (C))
§ 300.652 Advisory panel functions.
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(a) General. The State advisory panel shall—
(1) Advise the SEA of unmet needs within the State in the education of children with disabilities;
(2) Comment publicly on any rules or regulations proposed by the State regarding the education of children with disabilities;
(3) Advise the SEA in developing evaluations and reporting on data to the Secretary under section 618 of the Act;
(4) Advise the SEA in developing corrective action plans to address findings identified in Federal monitoring reports under Part B of the Act; and
(5) Advise the SEA in developing and implementing policies relating to the coordination of services for children with disabilities.
(b) Advising on eligible students with disabilities in adult prisons. The advisory panel also shall advise on the education of eligible students with disabilities who have been convicted as adults and incarcerated in adult prisons, even if, consistent with §300.600(d), a State assigns general supervision responsibility for those students to a public agency other than an SEA.
(Authority: 20 U.S.C. 1412(a)(21)(D))
§ 300.653 Advisory panel procedures.
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(a) The advisory panel shall meet as often as necessary to conduct its business.
(b) By July 1 of each year, the advisory panel shall submit an annual report of panel activities and suggestions to the SEA. This report must be made available to the public in a manner consistent with other public reporting requirements of Part B of the Act.
(c) Official minutes must be kept on all panel meetings and must be made available to the public on request.
(d) All advisory panel meetings and agenda items must be announced enough in advance of the meeting to afford interested parties a reasonable opportunity to attend. Meetings must be open to the public.
(e) Interpreters and other necessary services must be provided at panel meetings for panel members or participants. The State may pay for these services from funds under §300.620.
(f) The advisory panel shall serve without compensation but the State must reimburse the panel for reasonable and necessary expenses for attending meetings and performing duties. The State may use funds under §300.620 for this purpose.
(Authority: 20 U.S.C. 1412(a)(21))
State Complaint Procedures
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§ 300.660 Adoption of State complaint procedures.
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(a) General. Each SEA shall adopt written procedures for—
(1) Resolving any complaint, including a complaint filed by an organization or individual from another State, that meets the requirements of §300.662 by—
(i) Providing for the filing of a complaint with the SEA; and
(ii) At the SEA's discretion, providing for the filing of a complaint with a public agency and the right to have the SEA review the public agency's decision on the complaint; and
(2) Widely disseminating to parents and other interested individuals, including parent training and information centers, protection and advocacy agencies, independent living centers, and other appropriate entities, the State's procedures under §§300.660–300.662.
(b) Remedies for denial of appropriate services. In resolving a complaint in which it has found a failure to provide appropriate services, an SEA, pursuant to its general supervisory authority under Part B of the Act, must address:
(1) How to remediate the denial of those services, including, as appropriate, the awarding of monetary reimbursement or other corrective action appropriate to the needs of the child; and
(2) Appropriate future provision of services for all children with disabilities.
(Authority: 20 U.S.C. 1221e–3)
§ 300.661 Minimum State complaint procedures.
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(a) Time limit; minimum procedures. Each SEA shall include in its complaint procedures a time limit of 60 days after a complaint is filed under §300.660(a) to—
(1) Carry out an independent on-site investigation, if the SEA determines that an investigation is necessary;
(2) Give the complainant the opportunity to submit additional information, either orally or in writing, about the allegations in the complaint;
(3) Review all relevant information and make an independent determination as to whether the public agency is violating a requirement of Part B of the Act or of this part; and
(4) Issue a written decision to the complainant that addresses each allegation in the complaint and contains—
(i) Findings of fact and conclusions; and
(ii) The reasons for the SEA's final decision.
(b) Time extension; final decision; implementation. The SEA's procedures described in paragraph (a) of this section also must—
(1) Permit an extension of the time limit under paragraph (a) of this section only if exceptional circumstances exist with respect to a particular complaint; and
(2) Include procedures for effective implementation of the SEA's final decision, if needed, including—
(i) Technical assistance activities;
(ii) Negotiations; and
(iii) Corrective actions to achieve compliance.
(c) Complaints filed under this section, and due process hearings under §§300.507 and 300.520–300.528. (1) If a written complaint is received that is also the subject of a due process hearing under §300.507 or §§300.520–300.528, or contains multiple issues, of which one or more are part of that hearing, the State must set aside any part of the complaint that is being addressed in the due process hearing, until the conclusion of the hearing. However, any issue in the complaint that is not a part of the due process action must be resolved using the time limit and procedures described in paragraphs (a) and (b) of this section.
(2) If an issue is raised in a complaint filed under this section that has previously been decided in a due process hearing involving the same parties—
(i) The hearing decision is binding; and
(ii) The SEA must inform the complainant to that effect.
(3) A complaint alleging a public agency's failure to implement a due process decision must be resolved by the SEA.
(Authority: 20 U.S.C. 1221e–3)
§ 300.662 Filing a complaint.
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(a) An organization or individual may file a signed written complaint under the procedures described in §§300.660–300.661.
(b) The complaint must include—
(1) A statement that a public agency has violated a requirement of Part B of the Act or of this part; and
(2) The facts on which the statement is based.
(c) The complaint must allege a violation that occurred not more than one year prior to the date that the complaint is received in accordance with §300.660(a) unless a longer period is reasonable because the violation is continuing, or the complainant is requesting compensatory services for a violation that occurred not more than three years prior to the date the complaint is received under §300.660(a).
(Authority: 20 U.S.C. 1221e–3)
Subpart G—Allocation of Funds; Reports
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Allocations
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§ 300.700 Special definition of the term “State”.
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For the purposes of §§300.701, and 300.703–300.714, the term State means each of the 50 States, the District of Columbia, and the Commonwealth of Puerto Rico.
(Authority: 20 U.S.C. 1411(h)(2))
§ 300.701 Grants to States.
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(a) Purpose of grants. The Secretary makes grants to States and the outlying areas and provides funds to the Secretary of the Interior, to assist them to provide special education and related services to children with disabilities in accordance with Part B of the Act.
(b) Maximum amounts. The maximum amount of the grant a State may receive under section 611 of the Act for any fiscal year is—
(1) The number of children with disabilities in the State who are receiving special education and related services—
(i) Aged 3 through 5 if the State is eligible for a grant under section 619 of the Act; and
(ii) Aged 6 through 21; multiplied by—
(2) Forty (40) percent of the average per-pupil expenditure in public elementary and secondary schools in the United States.
(Authority: 20 U.S.C. 1411(a))
§ 300.702 Definition.
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For the purposes of this section the term average per-pupil expenditure in public elementary and secondary schools in the United States means—
(a) Without regard to the source of funds—
(1) The aggregate current expenditures, during the second fiscal year preceding the fiscal year for which the determination is made (or, if satisfactory data for that year are not available, during the most recent preceding fiscal year for which satisfactory data are available) of all LEAs in the 50 States and the District of Columbia); plus
(2) Any direct expenditures by the State for the operation of those agencies; divided by
(b) The aggregate number of children in average daily attendance to whom those agencies provided free public education during that preceding year.
(Authority: 20 U.S.C. 1411(h)(1))
§ 300.703 Allocations to States.
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(a) General. After reserving funds for studies and evaluations under section 674(e) of the Act, and for payments to the outlying areas, the freely associated States, and the Secretary of the Interior under §§300.715 and 300.717–300.719, the Secretary allocates the remaining amount among the States in accordance with paragraph (b) of this section and §§300.706–300.709.
(b) Interim formula. Except as provided in §§300.706–300.709, the Secretary allocates the amount described in paragraph (a) of this section among the States in accordance with section 611(a)(3), (4), (5) and (b)(1), (2) and (3) of the Act, as in effect prior to June 4, 1997, except that the determination of the number of children with disabilities receiving special education and related services under section 611(a)(3) of the Act (as then in effect) may be calculated as of December 1, or, at the State's discretion, the last Friday in October, of the fiscal year for which the funds were appropriated.
(Authority: 20 U.S.C. 1411(d))
§§ 300.704-300.705 [Reserved]
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§ 300.706 Permanent formula.
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(a) Establishment of base year. The Secretary allocates the amount described in §300.703(a) among the States in accordance with §§300.706–300.709 for each fiscal year beginning with the first fiscal year for which the amount appropriated under 611(j) of the Act is more than $4,924,672,200.
(b) Use of base year—(1) Definition. As used in this section, the term base year means the fiscal year preceding the first fiscal year in which this section applies.
(2) Special rule for use of base year amount. If a State received any funds under section 611 of the Act for the base year on the basis of children aged 3 through 5, but does not make FAPE available to all children with disabilities aged 3 through 5 in the State in any subsequent fiscal year, the Secretary computes the State's base year amount, solely for the purpose of calculating the State's allocation in that subsequent year under §§300.707–300.709, by subtracting the amount allocated to the State for the base year on the basis of those children.
(Authority: 20 U.S.C. 1411(e)(1) and (2))
§ 300.707 Increase in funds.
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If the amount available for allocations to States under §300.706 is equal to or greater than the amount allocated to the States under section 611 of the Act for the preceding fiscal year, those allocations are calculated as follows:
(a) Except as provided in §300.708, the Secretary—
(1) Allocates to each State the amount it received for the base year;
(2) Allocates 85 percent of any remaining funds to States on the basis of their relative populations of children aged 3 through 21 who are of the same age as children with disabilities for whom the State ensures the availability of FAPE under Part B of the Act; and
(3) Allocates 15 percent of those remaining funds to States on the basis of their relative populations of children described in paragraph (a)(2) of this section who are living in poverty.
(b) For the purpose of making grants under this section, the Secretary uses the most recent population data, including data on children living in poverty, that are available and satisfactory to the Secretary.
(Authority: 20 U.S.C. 1411(e)(3))
§ 300.708 Limitation.
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(a) Allocations under §300.707 are subject to the following:
(1) No State's allocation may be less than its allocation for the preceding fiscal year.
(2) No State's allocation may be less than the greatest of—
(i) The sum of—
(A) The amount it received for the base year; and
(B) One-third of one percent of the amount by which the amount appropriated under section 611(j) of the Act exceeds the amount appropriated under section 611 of the Act for the base year; or
(ii) The sum of—
(A) The amount it received for the preceding fiscal year; and
(B) That amount multiplied by the percentage by which the increase in the funds appropriated from the preceding fiscal year exceeds 1.5 percent; or
(iii) The sum of—
(A) The amount it received for the preceding fiscal year; and
(B) That amount multiplied by 90 percent of the percentage increase in the amount appropriated from the preceding fiscal year.
(b) Notwithstanding paragraph (a)(2) of this section, no State's allocation under §300.707 may exceed the sum of—
(1) The amount it received for the preceding fiscal year; and
(2) That amount multiplied by the sum of 1.5 percent and the percentage increase in the amount appropriated.
(c) If the amount available for allocations to States under §300.703 and paragraphs (a) and (b) of this section is insufficient to pay those allocations in full those allocations are ratably reduced, subject to paragraph (a)(1) of this section.
(Authority: 20 U.S.C. 1411(e)(3)(B) and (C))
§ 300.709 Decrease in funds.
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If the amount available for allocations to States under §300.706 is less than the amount allocated to the States under section 611 of the Act for the preceding fiscal year, those allocations are calculated as follows:
(a) If the amount available for allocations is greater than the amount allocated to the States for the base year, each State is allocated the sum of—
(1) The amount it received for the base year; and
(2) An amount that bears the same relation to any remaining funds as the increase the State received for the preceding fiscal year over the base year bears to the total of those increases for all States.
(b)(1) If the amount available for allocations is equal to or less than the amount allocated to the States for the base year, each State is allocated the amount it received for the base year.
(2) If the amount available is insufficient to make the allocations described in paragraph (b)(1) of this section, those allocations are ratably reduced.
(Authority: 20 U.S.C. 1411(e)(4))
§ 300.710 Allocation for State in which by-pass is implemented for private school children with disabilities.
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In determining the allocation under §§300.700–300.709 of a State in which the Secretary will implement a by-pass for private school children with disabilities under §§300.451–300.487, the Secretary includes in the State's child count—
(a) For the first year of a by-pass, the actual or estimated number of private school children with disabilities (as defined in §§300.7(a) and 300.450) in the State, as of the preceding December 1; and
(b) For succeeding years of a by-pass, the number of private school children with disabilities who received special education and related services under the by-pass in the preceding year.
(Authority: 20 U.S.C. 1412(f)(2))
§ 300.711 Subgrants to LEAs.
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Each State that receives a grant under section 611 of the Act for any fiscal year shall distribute in accordance with §300.712 any funds it does not retain under §300.602 and is not required to distribute under §§300.622 and 300.623 to LEAs in the State that have established their eligibility under section 613 of the Act, and to State agencies that received funds under section 614A(a) of the Act for fiscal year 1997, as then in effect, and have established their eligibility under section 613 of the Act, for use in accordance with Part B of the Act.
(Authority: 20 U.S.C. 1411(g)(1))
§ 300.712 Allocations to LEAs.
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(a) Interim procedure. For each fiscal year for which funds are allocated to States under §300.703(b) each State shall allocate funds under §300.711 in accordance with section 611(d) of the Act, as in effect prior to June 4, 1997.
(b) Permanent procedure. For each fiscal year for which funds are allocated to States under §§300.706–300.709, each State shall allocate funds under §300.711 as follows:
(1) Base payments. The State first shall award each agency described in §300.711 the amount that agency would have received under this section for the base year, as defined in §300.706(b)(1), if the State had distributed 75 percent of its grant for that year under section §300.703(b).
(2) Base payment adjustments. For any fiscal year after the base year fiscal year—
(i) If a new LEA is created, the State shall divide the base allocation determined under paragraph (b)(1) of this section for the LEAs that would have been responsible for serving children with disabilities now being served by the new LEA, among the new LEA and affected LEAs based on the relative numbers of children with disabilities ages 3 through 21, or ages 6 through 21 if a State has had its payment reduced under §300.706(b)(2), currently provided special education by each of the LEAs;
(ii) If one or more LEAs are combined into a single new LEA, the State shall combine the base allocations of the merged LEAs; and
(iii) If, for two or more LEAs, geographic boundaries or administrative responsibility for providing services to children with disabilities ages 3 through 21 change, the base allocations of affected LEAs shall be redistributed among affected LEAs based on the relative numbers of children with disabilities ages 3 through 21, or ages 6 through 21 if a State has had its payment reduced under §300.706(b)(2), currently provided special education by each affected LEA.
(3) Allocation of remaining funds. The State then shall—
(i) Allocate 85 percent of any remaining funds to those agencies on the basis of the relative numbers of children enrolled in public and private elementary and secondary schools within each agency's jurisdiction; and
(ii) Allocate 15 percent of those remaining funds to those agencies in accordance with their relative numbers of children living in poverty, as determined by the SEA.
(iii) For the purposes of making grants under this section, States must apply on a uniform basis across all LEAs the best data that are available to them on the numbers of children enrolled in public and private elementary and secondary schools and the numbers of children living in poverty.
(Authority: 20 U.S.C. 1411(g)(2))
§ 300.713 Former Chapter 1 State agencies.
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(a) To the extent necessary, the State—
(1) Shall use funds that are available under §300.602(a) to ensure that each State agency that received fiscal year 1994 funds under subpart 2 of Part D of chapter 1 of title I of the Elementary and Secondary Education Act of 1965 (as in effect in fiscal year 1994) receives, from the combination of funds under §300.602(a) and funds provided under §300.711, an amount no less than—
(i) The number of children with disabilities, aged 6 through 21, to whom the agency was providing special education and related services on December 1, or, at the State's discretion, the last Friday in October, of the fiscal year for which the funds were appropriated, subject to the limitation in paragraph (b) of this section; multiplied by
(ii) The per-child amount provided under that subpart for fiscal year 1994; and
(2) May use funds under §300.602(a) to ensure that each LEA that received fiscal year 1994 funds under that subpart for children who had transferred from a State-operated or State-supported school or program assisted under that subpart receives, from the combination of funds available under §300.602(a) and funds provided under §300.711, an amount for each child, aged 3 through 21 to whom the agency was providing special education and related services on December 1, or, at the State's discretion, the last Friday in October, of the fiscal year for which the funds were appropriated, equal to the per-child amount the agency received under that subpart for fiscal year 1994.
(b) The number of children counted under paragraph (a)(1)(i) of this section may not exceed the number of children aged 3 through 21 for whom the agency received fiscal year 1994 funds under subpart 2 of Part D of chapter 1 of title I of the Elementary and Secondary Education Act of 1965 (as in effect in fiscal year 1994).
(Authority: 20 U.S.C. 1411(g)(3))
§ 300.714 Reallocation of LEA funds.
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If an SEA determines that an LEA is adequately providing FAPE to all children with disabilities residing in the area served by that agency with State and local funds, the SEA may reallocate any portion of the funds under Part B of the Act that are not needed by that local agency to provide FAPE to other LEAs in the State that are not adequately providing special education and related services to all children with disabilities residing in the areas they serve.
(Authority: 20 U.S.C. 1411(g)(4))
§ 300.715 Payments to the Secretary of the Interior for the education of Indian children.
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(a) Reserved amounts for Secretary of Interior. From the amount appropriated for any fiscal year under 611(j) of the Act, the Secretary reserves 1.226 percent to provide assistance to the Secretary of the Interior in accordance with this section and §300.716.
(b) Provision of amounts for assistance. The Secretary provides amounts to the Secretary of the Interior to meet the need for assistance for the education of children with disabilities on reservations aged 5 to 21, inclusive, enrolled in elementary and secondary schools for Indian children operated or funded by the Secretary of the Interior. The amount of the payment for any fiscal year is equal to 80 percent of the amount allotted under paragraph (a) of this section for that fiscal year.
(c) Calculation of number of children. In the case of Indian students aged 3 to 5, inclusive, who are enrolled in programs affiliated with the Bureau of Indian Affairs (BIA) schools and that are required by the States in which these schools are located to attain or maintain State accreditation, and which schools have this accreditation prior to the date of enactment of the Individuals with Disabilities Education Act Amendments of 1991, the school may count those children for the purpose of distribution of the funds provided under this section to the Secretary of the Interior.
(d) Responsibility for meeting the requirements of Part B. The Secretary of the Interior shall meet all of the requirements of Part B of the Act for the children described in paragraphs (b) and (c) of this section, in accordance with §300.260.
(Authority: 20 U.S.C. 1411(c); 1411(i)(1)(A) and (B))
§ 300.716 Payments for education and services for Indian children with disabilities aged 3 through 5.
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(a) General. With funds appropriated under 611(j) of the Act, the Secretary makes payments to the Secretary of the Interior to be distributed to tribes or tribal organizations (as defined under section 4 of the Indian Self-Determination and Education Assistance Act) or consortia of those tribes or tribal organizations to provide for the coordination of assistance for special education and related services for children with disabilities aged 3 through 5 on reservations served by elementary and secondary schools for Indian children operated or funded by the Department of the Interior. The amount of the payments under paragraph (b) of this section for any fiscal year is equal to 20 percent of the amount allotted under §300.715(a).
(b) Distribution of funds. The Secretary of the Interior shall distribute the total amount of the payment under paragraph (a) of this section by allocating to each tribe or tribal organization an amount based on the number of children with disabilities ages 3 through 5 residing on reservations as reported annually, divided by the total of those children served by all tribes or tribal organizations.
(c) Submission of information. To receive a payment under this section, the tribe or tribal organization shall submit the figures to the Secretary of the Interior as required to determine the amounts to be allocated under paragraph (b) of this section. This information must be compiled and submitted to the Secretary.
(d) Use of funds. (1) The funds received by a tribe or tribal organization must be used to assist in child find, screening, and other procedures for the early identification of children aged 3 through 5, parent training, and the provision of direct services. These activities may be carried out directly or through contracts or cooperative agreements with the BIA, LEAs, and other public or private nonprofit organizations. The tribe or tribal organization is encouraged to involve Indian parents in the development and implementation of these activities.
(2) The entities shall, as appropriate, make referrals to local, State, or Federal entities for the provision of services or further diagnosis.
(e) Biennial report. To be eligible to receive a grant pursuant to paragraph (a) of this section, the tribe or tribal organization shall provide to the Secretary of the Interior a biennial report of activities undertaken under this paragraph, including the number of contracts and cooperative agreements entered into, the number of children contacted and receiving services for each year, and the estimated number of children needing services during the two years following the one in which the report is made. The Secretary of the Interior shall include a summary of this information on a biennial basis in the report to the Secretary required under section 611(i) of the Act. The Secretary may require any additional information from the Secretary of the Interior.
(f) Prohibitions. None of the funds allocated under this section may be used by the Secretary of the Interior for administrative purposes, including child count and the provision of technical assistance.
(Authority: 20 U.S.C. 1411(i)(3))
§ 300.717 Outlying areas and freely associated States.
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From the amount appropriated for any fiscal year under section 611(j) of the Act, the Secretary reserves not more than one percent, which must be used—
(a) To provide assistance to the outlying areas in accordance with their respective populations of individuals aged 3 through 21; and
(b) For fiscal years 1998 through 2001, to carry out the competition described in §300.719, except that the amount reserved to carry out that competition may not exceed the amount reserved for fiscal year 1996 for the competition under Part B of the Act described under the heading “SPECIAL EDUCATION” in Public Law 104–134.
(Authority: 20 U.S.C. 1411(b)(1))
§ 300.718 Outlying area—definition.
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As used in this part, the term outlying area means the United States Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.
(Authority: 20 U.S.C. 1402(18))
§ 300.719 Limitation for freely associated States.
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(a) Competitive grants. The Secretary uses funds described in §300.717(b) to award grants, on a competitive basis, to Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and the freely associated States to carry out the purposes of this part.
(b) Award basis. The Secretary awards grants under paragraph (a) of this section on a competitive basis, pursuant to the recommendations of the Pacific Region Educational Laboratory in Honolulu, Hawaii. Those recommendations must be made by experts in the field of special education and related services.
(c) Assistance requirements. Any freely associated State that wishes to receive funds under Part B of the Act shall include, in its application for assistance—
(1) Information demonstrating that it will meet all conditions that apply to States under Part B of the Act;
(2) An assurance that, notwithstanding any other provision of Part B of the Act, it will use those funds only for the direct provision of special education and related services to children with disabilities and to enhance its capacity to make FAPE available to all children with disabilities;
(3) The identity of the source and amount of funds, in addition to funds under Part B of the Act, that it will make available to ensure that FAPE is available to all children with disabilities within its jurisdiction; and
(4) Such other information and assurances as the Secretary may require.
(d) Termination of eligibility. Notwithstanding any other provision of law, the freely associated States may not receive any funds under Part B of the Act for any program year that begins after September 30, 2001.
(e) Administrative costs. The Secretary may provide not more than five percent of the amount reserved for grants under this section to pay the administrative costs of the Pacific Region Educational Laboratory under paragraph (b) of this section.
(f) Eligibility for award. An outlying area is not eligible for a competitive award under §300.719 unless it receives assistance under §300.717(a).
(Authority: 20 U.S.C. 1411(b)(2) and (3))
§ 300.720 Special rule.
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The provisions of Public Law 95–134, permitting the consolidation of grants by the outlying areas, do not apply to funds provided to those areas or to the freely associated States under Part B of the Act.
(Authority: 20 U.S.C. 1411(b)(4))
§ 300.721 [Reserved]
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§ 300.722 Definition.
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As used in this part, the term freely associated States means the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau.
(Authority: 20 U.S.C. 1411(b)(6))
Reports
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§ 300.750 Annual report of children served—report requirement.
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(a) The SEA shall report to the Secretary no later than February 1 of each year the number of children with disabilities aged 3 through 21 residing in the State who are receiving special education and related services.
(b) The SEA shall submit the report on forms provided by the Secretary.
(Authority: 20 U.S.C. 1411(d)(2); 1418(a))
§ 300.751 Annual report of children served—information required in the report.
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(a) For any year the SEA shall include in its report a table that shows the number of children with disabilities receiving special education and related services on December 1, or at the State's discretion on the last Friday in October, of that school year—
(1) Aged 3 through 5;
(2) Aged 6 through 17; and
(3) Aged 18 through 21.
(b) For the purpose of this part, a child's age is the child's actual age on the date of the child count: December 1, or, at the State's discretion, the last Friday in October.
(c) Reports must also include the number of those children with disabilities aged 3 through 21 for each year of age (3, 4, 5, etc.) within each disability category, as defined in the definition of “children with disabilities” in §300.7; and
(d) The Secretary may permit the collection of the data in paragraph (c) of this section through sampling.
(e) The SEA may not report a child under paragraph (c) of this section under more than one disability category.
(f) If a child with a disability has more than one disability, the SEA shall report that child under paragraph (c) of this section in accordance with the following procedure:
(1) If a child has only two disabilities and those disabilities are deafness and blindness, and the child is not reported as having a developmental delay, that child must be reported under the category “deaf-blindness”.
(2) A child who has more than one disability and is not reported as having deaf-blindness or as having a developmental delay must be reported under the category “multiple disabilities”.
(Authority: 20 U.S.C. 1411(d)(2); 1418(a) and (b))
§ 300.752 Annual report of children served—certification.
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The SEA shall include in its report a certification signed by an authorized official of the agency that the information provided under §300.751(a) is an accurate and unduplicated count of children with disabilities receiving special education and related services on the dates in question.
(Authority: 20 U.S.C. 1411(d)(2); 1417(b))
§ 300.753 Annual report of children served—criteria for counting children.
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(a) The SEA may include in its report children with disabilities who are enrolled in a school or program that is operated or supported by a public agency, and that—
(1) Provides them with both special education and related services that meet State standards;
(2) Provides them only with special education, if a related service is not required, that meets State standards; or
(3) In the case of children with disabilities enrolled by their parents in private schools, provides them with special education or related services under §§300.452–300.462 that meet State standards.
(b) The SEA may not include children with disabilities in its report who are receiving special education funded solely by the Federal Government, including children served by the Department of Interior, the Department of Defense, or the Department of Education. However, the State may count children covered under §300.184(c)(2).
(Authority: 20 U.S.C. 1411(d)(2); 1417(b))
§ 300.754 Annual report of children served—other responsibilities of the SEA.
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In addition to meeting the other requirements of §§300.750–300.753, the SEA shall—
(a) Establish procedures to be used by LEAs and other educational institutions in counting the number of children with disabilities receiving special education and related services;
(b) Set dates by which those agencies and institutions must report to the SEA to ensure that the State complies with §300.750(a);
(c) Obtain certification from each agency and institution that an unduplicated and accurate count has been made;
(d) Aggregate the data from the count obtained from each agency and institution, and prepare the reports required under §§300.750–300.753; and
(e) Ensure that documentation is maintained that enables the State and the Secretary to audit the accuracy of the count.
(Authority: 20 U.S.C. 1411(d)(2); 1417(b))
§ 300.755 Disproportionality.
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(a) General. Each State that receives assistance under Part B of the Act, and the Secretary of the Interior, shall provide for the collection and examination of data to determine if significant disproportionality based on race is occurring in the State or in the schools operated by the Secretary of the Interior with respect to—
(1) The identification of children as children with disabilities, including the identification of children as children with disabilities in accordance with a particular impairment described in section 602(3) of the Act; and
(2) The placement in particular educational settings of these children.
(b) Review and revision of policies, practices, and procedures. In the case of a determination of significant disproportionality with respect to the identification of children as children with disabilities, or the placement in particular educational settings of these children, in accordance with paragraph (a) of this section, the State or the Secretary of the Interior shall provide for the review and, if appropriate revision of the policies, procedures, and practices used in the identification or placement to ensure that the policies, procedures, and practices comply with the requirements of Part B of the Act.
(Authority: 20 U.S.C. 1418(c))
§ 300.756 Acquisition of equipment; construction or alteration of facilities.
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(a) General. If the Secretary determines that a program authorized under Part B of the Act would be improved by permitting program funds to be used to acquire appropriate equipment, or to construct new facilities or alter existing facilities, the Secretary may allow the use of those funds for those purposes.
(b) Compliance with certain regulations. Any construction of new facilities or alteration of existing facilities under paragraph (a) of this section must comply with the requirements of—
(1) Appendix A of part 36 of title 28, Code of Federal Regulations (commonly known as the “Americans with Disabilities Accessibility Guidelines for Buildings and Facilities”); or
(2) Appendix A of part 101–19.6 of title 41, Code of Federal Regulations (commonly known as the “Uniform Federal Accessibility Standards”).
(Authority: 20 U.S.C. 1405)
Appendix A to Part 300—Notice of Interpretation
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I. Involvement and Progress of Each Child With a Disability in the General Curriculum
1. What are the major Part B IEP requirements that govern the involvement and progress of children with disabilities in the general curriculum?
2. Must a child's IEP address his or her involvement in the general curriculum, regardless of the nature and severity of the child's disability and the setting in which the child is educated?
3. What must public agencies do to meet the requirements at §§300.344(a)(2) and 300.346(d) regarding the participation of a “regular education teacher” in the development review, and revision of the IEPs, for children age 3 through 5 who are receiving special education and related services?
4. Must the measurable annual goals in a child's IEP address all areas of the general curriculum, or only those areas in which the child's involvement and progress are affected by the child's disability?
II. Involvement of Parents and Students
5. What is the role of the parents, including surrogate parents, in decisions regarding the educational program of their children?
6. What are the Part B requirements regarding the participation of a student (child) with a disability in an IEP meeting?
7. Must the public agency inform the parents of who will be at the IEP meeting?
8. Do parents have the right to a copy of their child's IEP?
9. What is a public agency's responsibility if it is not possible to reach consensus on what services should be included in a child's IEP?
10. Does Part B require that public agencies inform parents regarding the educational progress of their children with disabilities?
III. Preparing Students With Disabilities for Employment and Other Post-School Experiences
11. What must the IEP team do to meet the requirements that the IEP include a statement of “transition service needs” beginning at age 14 (§300.347(b)(1), and a statement of “needed transition services” beginning at age 16 (§300.347(b)(2)?
12. Must the IEP for each student with a disability, beginning no later than age 16, include all “needed transition services,” as identified by the IEP team and consistent with the definition at §300.29, even if an agency other than the public agency will provide those services? What is the public agency's responsibility if another agency fails to provide agreed-upon transition services?
13. Under what circumstances must a public agency invite representatives from other agencies to an IEP meeting at which a child's need for transition services will be considered?
IV. Other Questions Regarding Implementation of Idea
14. For a child with a disability receiving special education for the first time, when must an IEP be developed—before placement or after placement?
15. Who is responsible for ensuring the development of IEPs for children with disabilities served by a public agency other than an LEA?
16. For a child placed out of State by an educational or non-educational State or local agency, is the placing or receiving State responsible for the child's IEP?
17. If a disabled child has been receiving special education from one public agency and transfers to another public agency in the same State, must the new public agency develop an IEP before the child can be placed in a special education program?
18. What timelines apply to the development and implementation of an initial IEP for a child with a disability?
19. Must a public agency hold separate meetings to determine a child's eligibility for special education and related services, develop the child's IEP, and determine the child's placement, or may the agency meet all of these requirements in a single meeting?
20. How frequently must a public agency conduct meetings to review, and if appropriate revise, the IEP for each child with a disability?
21. May IEP meetings be audio or video-tape-recorded?
22. Who can serve as the representative of the public agency at an IEP meeting?
23. For a child with a disability being considered for initial placement in special education, which teacher or teachers should attend the IEP meeting?
24. What is the role of a regular education teacher in the development, review, and revision of the IEP for a child who is, or may be, participating in the regular education environment?
25. If a child with a disability attends several regular classes, must all of the child's regular education teachers be members of the child's IEP team?
26. How should a public agency determine which regular education teacher and special education teacher will members of the IEP team for a particular child with a disability?
27. For a child whose primary disability is a speech impairment, may a public agency meet its responsibility under §300.344(a)(3) to ensure that the IEP team includes “at least one special education teacher, or, if appropriate, at least one special education provider of the child” by including a speech-language pathologist on the IEP team?
28. Do public agencies and parents have the option of having any individual of their choice attend a child's IEP meeting as participants on their child's IEP team?
29. Can parents or public agencies bring their attorneys to IEP meetings, and, if so under what circumstances? Are attorney's fees available for parents' attorneys if the parents are prevailing parties in actions or proceedings brought under Part B?
30. Must related services personnel attend IEP meetings?
31. Must the public agency ensure that all services specified in a child's IEP are provided?
32. Is it permissible for an agency to have the IEP completed before the IEP meeting begins?
33. Must a public agency include transportation in a child's IEP as a related service?
34. Must a public agency provide related services that are required to assist a child with a disability to benefit from special education, whether or not those services are included in the list of related services in §300.24?
35. Must the IEP specify the amount of services or may it simply list the services to be provided?
36. Under what circumstances is a public agency required to permit a child with a disability to use a school-purchased assistive technology device in the child's home or in another setting?
37. Can the IEP team also function as the group making the placement decision for a child with a disability?
38. If a child's IEP includes behavioral strategies to address a particular behavior, can a child ever be suspended for engaging in that behavior?
39. If a child's behavior in the regular classroom, even with appropriate interventions, would significantly impair the learning of others, can the group that makes the placement decision determine that placement in the regular classroom is inappropriate for that child?
40. May school personnel during a school year implement more than one short-term removal of a child with disabilities from his or her classroom or school for misconduct?
(Authority: Part B of the Individuals with Disabilities Education Act (20 U.S.C. 1401, et seq.), unless otherwise noted.)
Individualized Education Programs (IEPS) and Other Selected ImplementatioN Issues
Interpretation of IEP and Other selected Requirements under Part B of the Individuals with Disabilities Education Act (IDEA; Part B)
Introduction
The IEP requirements under Part B of the IDEA emphasize the importance of three core concepts: (1) the involvement and progress of each child with a disability in the general curriculum including addressing the unique needs that arise out of the child's disability; (2) the involvement of parents and students, together with regular and special education personnel, in making individual decisions to support each student's (child's) educational success, and (3) the preparation of students with disabilities for employment and other post-school activities.
The first three sections of this Appendix (I-III) provide guidance regarding the IEP requirements as they relate to the three core concepts described above. Section IV addresses other questions regarding the development and content of IEPs, including questions about the timelines and responsibility for developing and implementing IEPs, participation in IEP meetings, and IEP content. Section IV also addresses questions on other selected requirements under IDEA.
I. Involvement and Progress of Each Child With a Disability in the General Curriculum
In enacting the IDEA Amendments of 1997, the Congress found that research, demonstration, and practice over the past 20 years in special education and related disciplines have demonstrated that an effective educational system now and in the future must maintain high academic standards and clear performance goals for children with disabilities, consistent with the standards and expectations for all students in the educational system, and provide for appropriate and effective strategies and methods to ensure that students who are children with disabilities have maximum opportunities to achieve those standards and goals. [Section 651(a)(6)(A) of the Act.]
Accordingly, the evaluation and IEP provisions of Part B place great emphasis on the involvement and progress of children with disabilities in the general curriculum. (The term “general curriculum,” as used in these regulations, including this Appendix, refers to the curriculum that is used with nondisabled children.)
While the Act and regulations recognize that IEP teams must make individualized decisions about the special education and related services, and supplementary aids and services, provided to each child with a disability, they are driven by IDEA's strong preference that, to the maximum extent appropriate, children with disabilities be educated in regular classes with their nondisabled peers with appropriate supplementary aids and services.
In many cases, children with disabilities will need appropriate supports in order to successfully progress in the general curriculum, participate in State and district-wide assessment programs, achieve the measurable goals in their IEPs, and be educated together with their nondisabled peers. Accordingly, the Act requires the IEP team to determine, and the public agency to provide, the accommodations, modifications, supports, and supplementary aids and services, needed by each child with a disability to successfully be involved in and progress in the general curriculum achieve the goals of the IEP, and successfully demonstrate his or her competencies in State and district-wide assessments.
1. What are the major Part B IEP requirements that govern the involvement and progress of children with disabilities in the general curriculum?
Present Levels of Educational Performance
Section 300.347(a)(1) requires that the IEP for each child with a disability include “ * * * a statement of the child's present levels of educational performance, including—(i) how the child's disability affects the child's involvement and progress in the general curriculum; or (ii) for preschool children, as appropriate, how the child's disability affects the child's participation in appropriate activities * * *” (“Appropriate activities” in this context refers to age-relevant developmental abilities or milestones that typically developing children of the same age would be performing or would have achieved.)
The IEP team's determination of how each child's disability affects the child's involvement and progress in the general curriculum is a primary consideration in the development of the child's IEP. In assessing children with disabilities, school districts may use a variety of assessment techniques to determine the extent to which these children can be involved and progress in the general curriculum, such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination of the above.
The purpose of using these assessments is to determine the child's present levels of educational performance and areas of need arising from the child's disability so that approaches for ensuring the child's involvement and progress in the general curriculum and any needed adaptations or modifications to that curriculum can be identified.
Measurable Annual Goals, including Benchmarks or Short-term ojectives
Measurable annual goals, including benchmarks or short-term objectives, are critical to the strategic planning process used to develop and implement the IEP for each child with a disability. Once the IEP team has developed measurable annual goals for a child, the team (1) can develop strategies that will be most effective in realizing those goals and (2) must develop either measurable, intermediate steps (short-term objectives) or major milestones (benchmarks) that will enable parents, students, and educators to monitor progress during the year, and, if appropriate, to revise the IEP consistent with the student's instructional needs.
The strong emphasis in Part B on linking the educational program of children with disabilities to the general curriculum is reflected in §300.347(a)(2), which requires that the IEP include:
A statement of measurable annual goals, including benchmarks or short-term objectives, related to—(i) meeting the child's needs that result from the child's disability to enable the child to be involved in and progress in the general curriculum; and (ii) meeting each of the child's other educational needs that result from the child's disability.
As noted above, each annual goal must include either short-term objectives or benchmarks. The purpose of both is to enable a child's teacher(s), parents, and others involved in developing and implementing the child's IEP, to gauge, at intermediate times during the year, how well the child is progressing toward achievement of the annual goal. IEP teams may continue to develop short-term instructional objectives, that generally break the skills described in the annual goal down into discrete components. The revised statute and regulations also provide that, as an alternative, IEP teams may develop benchmarks, which can be thought of as describing the amount of progress the child is expected to make within specified segments of the year. Generally, benchmarks establish expected performance levels that allow for regular checks of progress that coincide with the reporting periods for informing parents of their child's progress toward achieving the annual goals. An IEP team may use either short term objectives or benchmarks or a combination of the two depending on the nature of the annual goals and the needs of the child.
Special Education and Related Services and Supplementary Aids and Services
The requirements regarding services provided to address a child's present levels of educational performance and to make progress toward the identified goals reinforce the emphasis on progress in the general curriculum, as well as maximizing the extent to which children with disabilities are educated with nondisabled children. Section 300.347(a)(3) requires that the IEP include:
A statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child—(i) to advance appropriately toward attaining the annual goals; (ii) to be involved and progress in the general curriculum * * * and to participate in extracurricular and other nonacademic activities; and (iii) to be educated and participate with other children with disabilities and nondisabled children in [extracurricular and other nonacademic activities] * * * [Italics added.]
Extent to Which Child Will Participate With Nondisabled Children
Section 300.347(a)(4) requires that each child's IEP include “An explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in [extracurricular and other nonacademic] activities * * *” This is consistent with the least restrictive environment (LRE) provisions at §§300.550–300.553, which include requirements that:
(1) each child with a disability be educated with nondisabled children to the maximum extent appropriate (§300.550(b)(1));
(2) each child with a disability be removed from the regular educational environment only when the nature or severity of the child's disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (§300.550(b)(1)); and
(3) to the maximum extent appropriate to the child's needs, each child with a disability participates with nondisabled children in nonacademic and extracurricular services and activities (§300.553).
All services and educational placements under Part B must be individually determined in light of each child's unique abilities and needs, to reasonably promote the child's educational success. Placing children with disabilities in this manner should enable each disabled child to meet high expectations in the future.
Although Part B requires that a child with a disability not be removed from the regular educational environment if the child's education can be achieved satisfactorily in regular classes with the use of supplementary aids and services, Part B's LRE principle is intended to ensure that a child with a disability is served in a setting where the child can be educated successfully. Even though IDEA does not mandate regular class placement for every disabled student, IDEA presumes that the first placement option considered for each disabled student by the student's placement team, which must include the parent, is the school the child would attend if not disabled, with appropriate supplementary aids and services to facilitate such placement. Thus, before a disabled child can be placed outside of the regular educational environment, the full range of supplementary aids and services that if provided would facilitate the student's placement in the regular classroom setting must be considered. Following that consideration, if a determination is made that particular disabled student cannot be educated satisfactorily in the regular educational environment, even with the provision of appropriate supplementary aids and services, that student then could be placed in a setting other than the regular classroom. Later, if it becomes apparent that the child's IEP can be carried out in a less restrictive setting, with the provision of appropriate supplementary aids and services, if needed, Part B would require that the child's placement be changed from the more restrictive setting to a less restrictive setting. In all cases, placement decisions must be individually determined on the basis of each child's abilities and needs, and not solely on factors such as category of disability, significance of disability, availability of special education and related services, configuration of the service delivery system, availability of space, or administrative convenience. Rather, each student's IEP forms the basis for the placement decision.
Further, a student need not fail in the regular classroom before another placement can be considered. Conversely, IDEA does not require that a student demonstrate achievement of a specific performance level as a prerequisite for placement into a regular classroom.
Participation in State or District-Wide Assessments of Student Achievement
Consistent with §300.138(a), which sets forth a presumption that children with disabilities will be included in general State and district-wide assessment programs, and provided with appropriate accommodations if necessary, §300.347(a)(5) requires that the IEP for each student with a disability include: “(i) a statement of any individual modifications in the administration of State or district-wide assessments of student achievement that are needed in order for the child to participate in the assessment; and (ii) if the IEP team determines that the child will not participate in a particular State or district-wide assessment of student achievement (or part of an assessment of student achievement), a statement of—(A) Why that assessment is not appropriate for the child; and (B) How the child will be assessed.”
Regular Education Teacher Participation in the Development, Review, and Revision of IEPs
Very often, regular education teachers play a central role in the education of children with disabilities (H. Rep. No. 105–95, p. 103 (1997); S. Rep. No. 105–17, p. 23 (1997)) and have important expertise regarding the general curriculum and the general education environment. Further, with the emphasis on involvement and progress in the general curriculum added by the IDEA Amendments of 1997, regular education teachers have an increasingly critical role (together with special education and related services personnel) in implementing the program of FAPE for most children with disabilities, as described in their IEPs.
Accordingly, the IDEA Amendments of 1997 added a requirement that each child's IEP team must include at least one regular education teacher of the child, if the child is, or may be, participating in the regular education environment (see §300.344(a)(2)). (See also §§300.346(d) on the role of a regular education teacher in the development, review and revision of IEPs.)
2. Must a child's IEP address his or her involvement in the general curriculum, regardless of the nature and severity of the child's disability and the setting in which the child is educated?
Yes. The IEP for each child with a disability (including children who are educated in separate classrooms or schools) must address how the child will be involved and progress in the general curriculum. However, the Part B regulations recognize that some children have other educational needs resulting from their disability that also must be met, even though those needs are not directly linked to participation in the general curriculum.
Accordingly, §300.347(a)(1)(2) requires that each child's IEP include:
A statement of measurable annual goals, including benchmarks or short-term objectives related to—(i) Meeting the child's needs that result from the child's disability to enable the child to be involved in and progress in the general curriculum; and (ii) meeting each of the child's other educational needs that result from the child's disability. [Italics added.]
Thus, the IEP team for each child with a disability must make an individualized determination regarding (1) how the child will be involved and progress in the general curriculum and what needs that result from the child's disability must be met to facilitate that participation; (2) whether the child has any other educational needs resulting from his or her disability that also must be met; and (3) what special education and other services and supports must be described in the child's IEP to address both sets of needs (consistent with §300.347(a)). For example, if the IEP team determines that in order for a child who is deaf to participate in the general curriculum he or she needs sign language and materials which reflect his or her language development, those needs (relating to the child's participation in the general curriculum) must be addressed in the child's IEP. In addition, if the team determines that the child also needs to expand his or her vocabulary in sign language that service must also be addressed in the applicable components of the child's IEP. The IEP team may also wish to consider whether there is a need for members of the child's family to receive training in sign language in order for the child to receive FAPE.
3. What must public agencies do to meet the requirements at §§300.344(a)(2) and 300.346(d) regarding the participation of a “regular education teacher” in the development, review, and revision of IEPs, for children aged 3 through 5 who are receiving preschool special education services?
If a public agency provides “regular education” preschool services to non-disabled children, then the requirements of §§300.344(a)(2) and 300.346(d) apply as they do in the case of older children with disabilities. If a public agency makes kindergarten available to nondisabled children, then a regular education kindergarten teacher could appropriately be the regular education teacher who would be a member of the IEP team, and, as appropriate, participate in IEP meetings, for a kindergarten-aged child who is, or may be, participating in the regular education environment.
If a public agency does not provide regular preschool education services to nondisabled children, the agency could designate an individual who, under State standards, is qualified to serve nondisabled children of the same age.
4. Must the measurable annual goals in a child's IEP address all areas of the general curriculum, or only those areas in which the child's involvement and progress are affected by the child's disability?
Section 300.347(a)(2) requires that each child's IEP include “A statement of measurable annual goals, including benchmarks or short-term objectives, related to—(i) meeting the child's needs that result from the child's disability to enable the child to be involved in and progress in the general curriculum * * *; and (ii) meeting each of the child's other educational needs that result from the child's disability. . . .” (Italics added).
Thus, a public agency is not required to include in an IEP annual goals that relate to areas of the general curriculum in which the child's disability does not affect the child's ability to be involved in and progress in the general curriculum. If a child with a disability needs only modifications or accommodations in order to progress in an area of the general curriculum, the IEP does not need to include a goal for that area; however, the IEP would need to specify those modifications or accommodations.
Public agencies often require all children, including children with disabilities, to demonstrate mastery in a given area of the general curriculum before allowing them to progress to the next level or grade in that area. Thus, in order to ensure that each child with a disability can effectively demonstrate competencies in an applicable area of the general curriculum, it is important for the IEP team to consider the accommodations and modifications that the child needs to assist him or her in demonstrating progress in that area.
II. Involvement of Parents and Students
The Congressional Committee Reports on the IDEA Amendments of 1997 express the view that the Amendments provide an opportunity for strengthening the role of parents, and emphasize that one of the purposes of the Amendments is to expand opportunities for parents and key public agency staff (e.g., special education, related services, regular education, and early intervention service providers, and other personnel) to work in new partnerships at both the State and local levels (H. Rep. 105–95, p. 82 (1997); S. Rep. No. 105–17, p. 4 and 5 (1997)). Accordingly, the IDEA Amendments of 1997 require that parents have an opportunity to participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of FAPE to the child. (§300.501(a)(2)). Thus, parents must now be part of: (1) the group that determines what additional data are needed as part of an evaluation of their child (§300.533(a)(1)); (2) the team that determines their child's eligibility (§300.534(a)(1)); and (3) the group that makes decisions on the educational placement of their child (§300.501(c)).
In addition, the concerns of parents and the information that they provide regarding their children must be considered in developing and reviewing their children's IEPs (§§300.343(c)(iii) and 300.346(a)(1)(i) and (b)); and the requirements for keeping parents informed about the educational progress of their children, particularly as it relates to their progress in the general curriculum, have been strengthened (§300.347(a)(7)).
The IDEA Amendments of 1997 also contain provisions that greatly strengthen the involvement of students with disabilities in decisions regarding their own futures, to facilitate movement from school to post-school activities. For example, those amendments (1) retained, essentially verbatim, the “transition services” requirements from the IDEA Amendments of 1990 (which provide that a statement of needed transition services must be in the IEP of each student with a disability, beginning no later than age 16); and (2) significantly expanded those provisions by adding a new annual requirement for the IEP to include “transition planning” activities for students beginning at age 14. (See section IV of this appendix for a description of the transition services requirements and definition.)
With respect to student involvement in decisions regarding transition services, §300.344(b) provides that (1) “the public agency shall invite a student with a disability of any age to attend his or her IEP meeting if a purpose of the meeting will be the consideration of—(i) The student's transition services needs under §300.347(b)(1); or (ii) The needed transition services for the student under §300.347(b)(2); or (iii) Both;” and (2) “If the student does not attend the IEP meeting, the public agency shall take other steps to ensure that the student's preferences and interests are considered.” (§300.344(b)(2)).
The IDEA Amendments of 1997 also give States the authority to elect to transfer the rights accorded to parents under Part B to each student with a disability upon reaching the age of majority under State law (if the student has not been determined incompetent under State law) (§300.517). (Part B requires that if the rights transfer to the student, the public agency must provide any notice required under Part B to both the student and the parents.) If the State elects to provide for the transfer of rights from the parents to the student at the age of majority, the IEP must, beginning at least one year before a student reaches the age of majority under State law, include a statement that the student has been informed of any rights that will transfer to him or her upon reaching the age of majority. (§300.347(c)).
The IDEA Amendments of 1997 also permit, but do not require, States to establish a procedure for appointing the parent, or another appropriate individual if the parent is not available, to represent the educational interests of a student with a disability who has reached the age of majority under State law and has not been determined to be incompetent, but who is determined not to have the ability to provide informed consent with respect to his or her educational program.
5. What is the role of the parents, including surrogate parents, in decisions regarding the educational program of their children?
The parents of a child with a disability are expected to be equal participants along with school personnel, in developing, reviewing, and revising the IEP for their child. This is an active role in which the parents (1) provide critical information regarding the strengths of their child and express their concerns for enhancing the education of their child; (2) participate in discussions about the child's need for special education and related services and supplementary aids and services; and (3) join with the other participants in deciding how the child will be involved and progress in the general curriculum and participate in State and district-wide assessments, and what services the agency will provide to the child and in what setting.
As previously noted in the introduction to section II of this Appendix, Part B specifically provides that parents of children with disabilities—
• Have an opportunity to participate in meetings with respect to the identification, evaluation, and educational placement of their child, and the provision of FAPE to the child (including IEP meetings) (§§300.501(b), 300.344(a)(1), and 300.517;
• Be part of the groups that determine what additional data are needed as part of an evaluation of their child (§300.533(a)(1)), and determine their child's eligibility (§300.534(a)(1)) and educational placement (§300.501(c));
• Have their concerns and the information that they provide regarding their child considered in developing and reviewing their child's IEPs (§§300.343(c)(iii) and 300.346(a)(1)(i) and (b)); and
• Be regularly informed (by such means as periodic report cards), as specified in their child's IEP, at least as often as parents are informed of their nondisabled children's progress, of their child's progress toward the annual goals in the IEP and the extent to which that progress is sufficient to enable the child to achieve the goals by the end of the year (§300.347(a)(7)).
A surrogate parent is a person appointed to represent the interests of a child with a disability in the educational decision-making process when no parent (as defined at §300.20) is known, the agency, after reasonable efforts, cannot locate the child's parents, or the child is a ward of the State under the laws of the State. A surrogate parent has all of the rights and responsibilities of a parent under Part B (§300.515.)
6. What are the Part B requirements regarding the participation of a student (child) with a disability in an IEP meeting?
If a purpose of an IEP meeting for a student with a disability will be the consideration of the student's transition services needs or needed transition services under §300.347(b)(1) or (2), or both, the public agency must invite the student and, as part of the notification to the parents of the IEP meeting, inform the parents that the agency will invite the student to the IEP meeting.
If the student does not attend, the public agency must take other steps to ensure that the student's preferences and interests are considered. (See §300.344(b)).
Section §300.517 permits, but does not require, States to transfer procedural rights under Part B from the parents to students with disabilities who reach the age of majority under State law, if they have not been determined to be incompetent under State law. If those rights are to be transferred from the parents to the student, the public agency would be required to ensure that the student has the right to participate in IEP meetings set forth for parents in §300.345. However, at the discretion of the student or the public agency, the parents also could attend IEP meetings as “ * * * individuals who have knowledge or special expertise regarding the child * * *” (see §300.344(a)(6)).
In other circumstances, a child with a disability may attend “if appropriate.” (§300.344(a)(7)). Generally, a child with a disability should attend the IEP meeting if the parent decides that it is appropriate for the child to do so. If possible, the agency and parents should discuss the appropriateness of the child's participation before a decision is made, in order to help the parents determine whether or not the child's attendance would be (1) helpful in developing the IEP or (2) directly beneficial to the child or both. The agency should inform the parents before each IEP meeting—as part of notification under §300.345(a)(1)—that they may invite their child to participate.
7. Must the public agency inform the parents of who will be at the IEP meeting?
Yes. In notifying parents about the meeting, the agency “must indicate the purpose, time, and location of the meeting, and who will be in attendance.” (§300.345(b), italics added.) In addition, if a purpose of the IEP meeting will be the consideration of a student's transition services needs or needed transition services under §300.347(b)(1) or (2) or both, the notice must also inform the parents that the agency is inviting the student, and identify any other agency that will be invited to send a representative.
The public agency also must inform the parents of the right of the parents and the agency to invite other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate to be members of the IEP team. (§300.345(b)(1)(ii).)
It also may be appropriate for the agency to ask the parents to inform the agency of any individuals the parents will be bringing to the meeting. Parents are encouraged to let the agency know whom they intend to bring. Such cooperation can facilitate arrangements for the meeting, and help ensure a productive, child-centered meeting.
8. Do parents have the right to a copy of their child's IEP?
Yes. Section 300.345(f) states that the public agency shall give the parent a copy of the IEP at no cost to the parent.
9. What is a public agency's responsibility if it is not possible to reach consensus on what services should be included in a child's IEP?
The IEP meeting serves as a communication vehicle between parents and school personnel, and enables them, as equal participants, to make joint, informed decisions regarding the (1) child's needs and appropriate goals; (2) extent to which the child will be involved in the general curriculum and participate in the regular education environment and State and district-wide assessments; and (3) services needed to support that involvement and participation and to achieve agreed-upon goals. Parents are considered equal partners with school personnel in making these decisions, and the IEP team must consider the parents' concerns and the information that they provide regarding their child in developing, reviewing, and revising IEPs (§§300.343(c)(iii) and 300.346(a)(1) and (b)).
The IEP team should work toward consensus, but the public agency has ultimate responsibility to ensure that the IEP includes the services that the child needs in order to receive FAPE. It is not appropriate to make IEP decisions based upon a majority “vote.” If the team cannot reach consensus, the public agency must provide the parents with prior written notice of the agency's proposals or refusals, or both, regarding the child's educational program, and the parents have the right to seek resolution of any disagreements by initiating an impartial due process hearing.
Every effort should be made to resolve differences between parents and school staff through voluntary mediation or some other informal step, without resort to a due process hearing. However, mediation or other informal procedures may not be used to deny or delay a parent's right to a due process hearing, or to deny any other rights afforded under Part B.
10. Does Part B require that public agencies inform parents regarding the educational progress of their children with disabilities?
Yes. The Part B statute and regulations include a number of provisions to help ensure that parents are involved in decisions regarding, and are informed about, their child's educational progress, including the child's progress in the general curriculum. First, the parents will be informed regarding their child's present levels of educational performance through the development of the IEP. Section 300.347(a)(1) requires that each IEP include:
* * * A statement of the child's present levels of educational performance, including—(i) how the child's disability affects the child's involvement and progress in the general curriculum; or (ii) for preschool children, as appropriate, how the disability affects the child's participation in appropriate activities * * *
Further, §300.347(a)(7) sets forth new requirements for regularly informing parents about their child's educational progress, as regularly as parents of nondisabled children are informed of their child's progress. That section requires that the IEP include:
A statement of—(i) How the child's progress toward the annual goals * * * will be measured; and (ii) how the child's parents will be regularly informed (by such means as periodic report cards), at least as often as parents are informed of their nondisabled children's progress, of—(A) their child's progress toward the annual goals; and (B) the extent to which that progress is sufficient to enable the child to achieve the goals by the end of the year.
One method that public agencies could use in meeting this requirement would be to provide periodic report cards to the parents of students with disabilities that include both (1) the grading information provided for all children in the agency at the same intervals; and (2) the specific information required by §300.347(a)(7)(ii)(A) and (B).
Finally, the parents, as part of the IEP team, will participate at least once every 12 months in a review of their child's educational progress. Section 300.343(c) requires that a public agency initiate and conduct a meeting, at which the IEP team:
* * * (1) Reviews the child's IEP periodically, but not less than annually to determine whether the annual goals for the child are being achieved; and (2) revises the IEP as appropriate to address—(i) any lack of expected progress toward the annual goals * * * and in the general curriculum, if appropriate; (ii) The results of any reevaluation * * *; (iii) Information about the child provided to, or by, the parents * * *; (iv) The child's anticipated needs; or (v) Other matters.
III. Preparing Students With Disabilities for Employment and Other Post-School Experiences
One of the primary purposes of the IDEA is to “ * * * ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living * * *” (§300.1(a)). Section 701 of the Rehabilitation Act of 1973 describes the philosophy of independent living as including a philosophy of consumer control, peer support, self-help, self-determination, equal access, and individual and system advocacy, in order to maximize the leadership, empowerment, independence, and productivity of individuals with disabilities, and the integration and full inclusion of individuals with disabilities into the mainstream of American society. Because many students receiving services under IDEA will also receive services under the Rehabilitation Act, it is important, in planning for their future, to consider the impact of both statutes.
Similarly, one of the key purposes of the IDEA Amendments of 1997 was to “promote improved educational results for children with disabilities through early intervention, preschool, and educational experiences that prepare them for later educational challenges and employment.” (H. Rep. No. 105–95, p. 82 (1997); S. Rep. No. 105–17, p. 4 (1997)).
Thus, throughout their preschool, elementary, and secondary education, the IEPs for children with disabilities must, to the extent appropriate for each individual child, focus on providing instruction and experiences that enable the child to prepare himself or herself for later educational experiences and for post-school activities, including formal education, if appropriate, employment, and independent living. Many students with disabilities will obtain services through State vocational rehabilitation programs to ensure that their educational goals are effectively implemented in post-school activities. Services available through rehabilitation programs are consistent with the underlying purpose of IDEA.
Although preparation for adult life is a key component of FAPE throughout the educational experiences of students with disabilities, Part B sets forth specific requirements related to transition planning and transition services that must be implemented no later than ages 14 and 16, respectively, and which require an intensified focus on that preparation as these students begin and prepare to complete their secondary education.
11. What must the IEP team do to meet the requirements that the IEP include “a statement of * * * transition service needs” beginning at age 14 (§300.347(b)(1)(i)),” and a statement of needed transition services” no later than age 16 (§300.347(b)(2)?
Section 300.347(b)(1) requires that, beginning no later than age 14, each student's IEP include specific transition-related content, and, beginning no later than age 16, a statement of needed transition services:
Beginning at age 14 and younger if appropriate, and updated annually, each student's IEP must include:
“ * * * a statement of the transition service needs of the student under the applicable components of the student's IEP that focuses on the student's courses of study (such as participation in advanced-placement courses or a vocational education program)” (§300.347(b)(1)(i)).
Beginning at age 16 (or younger, if determined appropriate by the IEP team), each student's IEP must include:
“ * * * a statement of needed transition services for the student, including, if appropriate, a statement of the interagency responsibilities or any needed linkages.” (§300.347(b)(2)).
The Committee Reports on the IDEA Amendments of 1997 make clear that the requirement added to the statute in 1997 that beginning at age 14, and updated annually, the IEP include “a statement of the transition service needs” is “ * * * designed to augment, and not replace,” the separate, preexisting requirement that the IEP include, “ * * * beginning at age 16 (or younger, if determined appropriate by the IEP team), a statement of needed transition services * * *” (H. Rep. No. 105–95, p. 102 (1997); S. Rep. No. 105–17, p. 22 (1997)). As clarified by the Reports, “The purpose of [the requirement in §300.347(b)(1)(i)] is to focus attention on how the child's educational program can be planned to help the child make a successful transition to his or her goals for life after secondary school.” (H. Rep. No. 105–95, pp. 101–102 (1997); S. Rep. No. 105–17, p. 22 (1997)). The Reports further explain that “[F]or example, for a child whose transition goal is a job, a transition service could be teaching the child how to get to the job site on public transportation.” (H. Rep. No. 105–95, p. 102 (1997); S. Rep. No. 105–17, p. 22 (1997)).
Thus, beginning at age 14, the IEP team, in determining appropriate measurable annual goals (including benchmarks or short-term objectives) and services for a student, must determine what instruction and educational experiences will assist the student to prepare for transition from secondary education to post-secondary life.
The statement of transition service needs should relate directly to the student's goals beyond secondary education, and show how planned studies are linked to these goals. For example, a student interested in exploring a career in computer science may have a statement of transition services needs connected to technology course work, while another student's statement of transition services needs could describe why public bus transportation training is important for future independence in the community.
Although the focus of the transition planning process may shift as the student approaches graduation, the IEP team must discuss specific areas beginning at least at the age of 14 years and review these areas annually. As noted in the Committee Reports, a disproportionate number of students with disabilities drop out of school before they complete their secondary education: “Too many students with disabilities are failing courses and dropping out of school. Almost twice as many students with disabilities drop out as compared to students without disabilities.” (H. Rep. No. 105–95, p. 85 (1997), S. Rep. No. 105–17, p. 5 (1997).)
To help reduce the number of students with disabilities that drop out, it is important that the IEP team work with each student with a disability and the student's family to select courses of study that will be meaningful to the student's future and motivate the student to complete his or her education.
This requirement is distinct from the requirement, at §300.347(b)(2), that the IEP include:
* * * beginning at age 16 (or younger, if determined appropriate by the IEP team), a statement of needed transition services for the child, including, if appropriate, a statement of the interagency responsibilities or any needed linkages.
The term “transition services” is defined at §300.29 to mean:
* * * a coordinated set of activities for a student with a disability that—(1) Is designed within an outcome-oriented process, that promotes movement from school to post-school activities, including postsecondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation; (2) Is based on the individual student's needs, taking into account the student's preferences and interests; and (3) Includes—(i) Instruction; (ii) Related services; (iii) Community experiences; (iv) The development of employment and other post-school adult living objectives; and (v) If appropriate, acquisition of daily living skills and functional vocational evaluation.
Thus, while §300.347(b)(1) requires that the IEP team begin by age 14 to address the student's need for instruction that will assist the student to prepare for transition, the IEP must include by age 16 a statement of needed transition services under §300.347(b)(2) that includes a “coordinated set of activities * * *, designed within an outcome-oriented process, that promotes movement from school to post-school activities * * *.” (§300.29) Section 300.344(b)(3) further requires that, in implementing §300.347(b)(1), public agencies (in addition to required participants for all IEP meetings), must also invite a representative of any other agency that is likely to be responsible for providing or paying for transition services. Thus, §300.347(b)(2) requires a broader focus on coordination of services across, and linkages between, agencies beyond the SEA and LEA.
12. Must the IEP for each student with a disability, beginning no later than age 16, include all “needed transition services,” as identified by the IEP team and consistent with the definition at §300.29, even if an agency other than the public agency will provide those services? What is the public agency's responsibility if another agency fails to provide agreed-upon transition services?
Section 300.347(b)(2) requires that the IEP for each child with a disability, beginning no later than age 16, or younger if determined appropriate by the IEP team, include all “needed transition services,” as identified by the IEP team and consistent with the definition at §300.29, regardless of whether the public agency or some other agency will provide those services. Section 300.347(b)(2) specifically requires that the statement of needed transition services include, “ * * * if appropriate, a statement of the interagency responsibilities or any needed linkages.”
Further, the IDEA Amendments of 1997 also permit an LEA to use up to five percent of the Part B funds it receives in any fiscal year in combination with other amounts, which must include amounts other than education funds, to develop and implement a coordinated services system. These funds may be used for activities such as: (1) linking IEPs under Part B and Individualized Family Service Plans (IFSPs) under Part C, with Individualized Service Plans developed under multiple Federal and State programs, such as Title I of the Rehabilitation Act; and (2) developing and implementing interagency financing strategies for the provision of services, including transition services under Part B.
The need to include, as part of a student's IEP, transition services to be provided by agencies other than the public agency is contemplated by §300.348(a), which specifies what the public agency must do if another agency participating in the development of the statement of needed transition services fails to provide a needed transition service that it had agreed to provide.
If an agreed-upon service by another agency is not provided, the public agency responsible for the student's education must implement alternative strategies to meet the student's needs. This requires that the public agency provide the services, or convene an IEP meeting as soon as possible to identify alternative strategies to meet the transition services objectives, and to revise the IEP accordingly.
Alternative strategies might include the identification of another funding source, referral to another agency, the public agency's identification of other district-wide or community resources that it can use to meet the student's identified needs appropriately, or a combination of these strategies. As emphasized by §300.348(b), however:
Nothing in [Part B] relieves any participating agency, including a State vocational rehabilitation agency, of the responsibility to provide or pay for any transition service that the agency would otherwise provide to students with disabilities who meet the eligibility criteria of that agency.
However, the fact that an agency other than the public agency does not fulfill its responsibility does not relieve the public agency of its responsibility to ensure that FAPE is available to each student with a disability. (Section 300.142(b)(2) specifically requires that if an agency other than the LEA fails to provide or pay for a special education or related service (which could include a transition service), the LEA must, without delay, provide or pay for the service, and may then claim reimbursement from the agency that failed to provide or pay for the service.)
13. Under what circumstances must a public agency invite representatives from other agencies to an IEP meeting at which a child's need for transition services will be considered?
Section 300.344 requires that, “In implementing the requirements of [§300.347(b)(1)(ii) requiring a statement of needed transition services], the public agency shall also invite a representative of any other agency that is likely to be responsible for providing or paying for transition services.” To meet this requirement, the public agency must identify all agencies that are “likely to be responsible for providing or paying for transition services” for each student addressed by §300.347(b)(1), and must invite each of those agencies to the IEP meeting; and if an agency invited to send a representative to a meeting does not do so, the public agency must take other steps to obtain the participation of that agency in the planning of any transition services.
If, during the course of an IEP meeting, the team identifies additional agencies that are “likely to be responsible for providing or paying for transition services” for the student, the public agency must determine how it will meet the requirements of §300.344.
IV. Other Questions Regarding the Development and Content of IEPS
14. For a child with a disability receiving special education for the first time, when must an IEP be developed—before or after the child begins to receive special education and related services?
Section 300.342(b)(1) requires that an IEP be “in effect before special education and related services are provided to an eligible child * * *” (Italics added.)
The appropriate placement for a particular child with a disability cannot be determined until after decisions have been made about the child's needs and the services that the public agency will provide to meet those needs. These decisions must be made at the IEP meeting, and it would not be permissible first to place the child and then develop the IEP. Therefore, the IEP must be developed before placement. (Further, the child's placement must be based, among other factors, on the child's IEP.)
This requirement does not preclude temporarily placing an eligible child with a disability in a program as part of the evaluation process—before the IEP is finalized—to assist a public agency in determining the appropriate placement for the child. However, it is essential that the temporary placement not become the final placement before the IEP is finalized. In order to ensure that this does not happen, the State might consider requiring LEAs to take the following actions:
a. Develop an interim IEP for the child that sets out the specific conditions and timelines for the trial placement. (See paragraph c, following.)
b. Ensure that the parents agree to the interim placement before it is carried out, and that they are involved throughout the process of developing, reviewing, and revising the child's IEP.
c. Set a specific timeline (e.g., 30 days) for completing the evaluation, finalizing the IEP, and determining the appropriate placement for the child.
d. Conduct an IEP meeting at the end of the trial period in order to finalize the child's IEP.
15. Who is responsible for ensuring the development of IEPs for children with disabilities served by a public agency other than an LEA?
The answer as to which public agency has direct responsibility for ensuring the development of IEPs for children with disabilities served by a public agency other than an LEA will vary from State to State, depending upon State law, policy, or practice. The SEA is ultimately responsible for ensuring that all Part B requirements, including the IEP requirements, are met for eligible children within the State, including those children served by a public agency other than an LEA. Thus, the SEA must ensure that every eligible child with a disability in the State has FAPE available, regardless of which State or local agency is responsible for educating the child. (The only exception to this responsibility is that the SEA is not responsible for ensuring that FAPE is made available to children with disabilities who are convicted as adults under State law and incarcerated in adult prisons, if the State has assigned that responsibility to a public agency other than the SEA. (See §300.600(d)).
Although the SEA has flexibility in deciding the best means to meet this obligation (e.g., through interagency agreements), the SEA must ensure that no eligible child with a disability is denied FAPE due to jurisdictional disputes among agencies.
When an LEA is responsible for the education of a child with a disability, the LEA remains responsible for developing the child's IEP, regardless of the public or private school setting into which it places the child.
16. For a child placed out of State by an educational or non-educational State or local agency, is the placing or receiving State responsible for the child's IEP?
Regardless of the reason for the placement, the “placing” State is responsible for ensuring that the child's IEP is developed and that it is implemented. The determination of the specific agency in the placing State that is responsible for the child's IEP would be based on State law, policy, or practice. However, the SEA in the placing State is ultimately responsible for ensuring that the child has FAPE available.
17. If a disabled child has been receiving special education from one public agency and transfers to another public agency in the same State, must the new public agency develop an IEP before the child can be placed in a special education program?
If a child with a disability moves from one public agency to another in the same State, the State and its public agencies have an ongoing responsibility to ensure that FAPE is made available to that child. This means that if a child moves to another public agency the new agency is responsible for ensuring that the child has available special education and related services in conformity with an IEP.
The new public agency must ensure that the child has an IEP in effect before the agency can provide special education and related services. The new public agency may meet this responsibility by either adopting the IEP the former public agency developed for the child or by developing a new IEP for the child. (The new public agency is strongly encouraged to continue implementing the IEP developed by the former public agency, if appropriate, especially if the parents believe their child was progressing appropriately under that IEP.)
Before the child's IEP is finalized, the new public agency may provide interim services agreed to by both the parents and the new public agency. If the parents and the new public agency are unable to agree on an interim IEP and placement, the new public agency must implement the old IEP to the extent possible until a new IEP is developed and implemented.
In general, while the new public agency must conduct an IEP meeting, it would not be necessary if: (1) A copy of the child's current IEP is available; (2) the parents indicate that they are satisfied with the current IEP; and (3) the new public agency determines that the current IEP is appropriate and can be implemented as written.
If the child's current IEP is not available, or if either the new public agency or the parent believes that it is not appropriate, the new public agency must develop a new IEP through appropriate procedures within a short time after the child enrolls in the new public agency (normally, within one week).
18. What timelines apply to the development and implementation of an initial IEP for a child with a disability?
Section 300.343(b) requires each public agency to ensure that within a reasonable period of time following the agency's receipt of parent consent to an initial evaluation of a child, the child is evaluated and, if determined eligible, special education and related services are made available to the child in accordance with an IEP. The section further requires the agency to conduct a meeting to develop an IEP for the child within 30 days of determining that the child needs special education and related services.
Section 300.342(b)(2) provides that an IEP must be implemented as soon as possible following the meeting in which the IEP is developed.
19. Must a public agency hold separate meetings to determine a child's eligibility for special education and related services, develop the child's IEP, and determine the child's placement, or may the agency meet all of these requirements in a single meeting?
A public agency may, after a child is determined by “a group of qualified professionals and the parent” (see §300.534(a)(1)) to be a child with a disability, continue in the same meeting to develop an IEP for the child and then to determine the child's placement. However, the public agency must ensure that it meets: (1) the requirements of §300.535 regarding eligibility decisions; (2) all of the Part B requirements regarding meetings to develop IEPs (including providing appropriate notification to the parents, consistent with the requirements of §§300.345, 300.503, and 300.504, and ensuring that all the required team members participate in the development of the IEP, consistent with the requirements of §300.344;) and (3) ensuring that the placement is made by the required individuals, including the parent, as required by §§300.552 and 300.501(c).
20. How frequently must a public agency conduct meetings to review, and, if appropriate, revise the IEP for each child with a disability?
A public agency must initiate and conduct meetings periodically, but at least once every twelve months, to review each child's IEP, in order to determine whether the annual goals for the child are being achieved, and to revise the IEP, as appropriate, to address: (a) Any lack of expected progress toward the annual goals and in the general curriculum, if appropriate; (b) the results of any reevaluation; (c) information about the child provided to, or by, the parents; (d) the child's anticipated needs; or (e) other matters (§300.343(c)).
A public agency also must ensure that an IEP is in effect for each child at the beginning of each school year (§300.342(a)). It may conduct IEP meetings at any time during the year. However, if the agency conducts the IEP meeting prior to the beginning of the next school year, it must ensure that the IEP contains the necessary special education and related services and supplementary aids and services to ensure that the student's IEP can be appropriately implemented during the next school year. Otherwise, it would be necessary for the public agency to conduct another IEP meeting.
Although the public agency is responsible for determining when it is necessary to conduct an IEP meeting, the parents of a child with a disability have the right to request an IEP meeting at any time. For example, if the parents believe that the child is not progressing satisfactorily or that there is a problem with the child's current IEP, it would be appropriate for the parents to request an IEP meeting.
If a child's teacher feels that the child's IEP or placement is not appropriate for the child, the teacher should follow agency procedures with respect to: (1) calling or meeting with the parents or (2) requesting the agency to hold another IEP meeting to review the child's IEP.
The legislative history of Public Law 94–142 makes it clear that there should be as many meetings a year as any one child may need (121 Cong. Rec. S20428–29 (Nov. 19, 1975) (remarks of Senator Stafford)). Public agencies should grant any reasonable parent request for an IEP meeting. For example, if the parents question the adequacy of services that are provided while their child is suspended for short periods of time, it would be appropriate to convene an IEP meeting.
In general, if either a parent or a public agency believes that a required component of the student's IEP should be changed, the public agency must conduct an IEP meeting if it believes that a change in the IEP may be necessary to ensure the provision of FAPE.
If a parent requests an IEP meeting because the parent believes that a change is needed in the provision of FAPE to the child or the educational placement of the child, and the agency refuses to convene an IEP meeting to determine whether such a change is needed, the agency must provide written notice to the parents of the refusal, including an explanation of why the agency has determined that conducting the meeting is not necessary to ensure the provision of FAPE to the student.
Under §300.507(a), the parents or agency may initiate a due process hearing at any time regarding any proposal or refusal regarding the identification, evaluation, or educational placement of the child, or the provision of FAPE to the child, and the public agency must inform parents about the availability of mediation.
21. May IEP meetings be audio- or video-tape-recorded?
Part B does not address the use of audio or video recording devices at IEP meetings, and no other Federal statute either authorizes or prohibits the recording of an IEP meeting by either a parent or a school official. Therefore, an SEA or public agency has the option to require, prohibit, limit, or otherwise regulate the use of recording devices at IEP meetings.
If a public agency has a policy that prohibits or limits the use of recording devices at IEP meetings, that policy must provide for exceptions if they are necessary to ensure that the parent understands the IEP or the IEP process or to implement other parental rights guaranteed under Part B. An SEA or school district that adopts a rule regulating the tape recording of IEP meetings also should ensure that it is uniformly applied.
Any recording of an IEP meeting that is maintained by the public agency is an “education record,” within the meaning of the Family Educational Rights and Privacy Act (“FERPA”; 20 U.S.C. 1232g), and would, therefore, be subject to the confidentiality requirements of the regulations under both FERPA (34 CFR part 99) and part B (§§300.560–300.575).
Parents wishing to use audio or video recording devices at IEP meetings should consult State or local policies for further guidance.
22. Who can serve as the representative of the public agency at an IEP meeting?
The IEP team must include a representative of the public agency who: (a) Is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities; (b) is knowledgeable about the general curriculum; and (c) is knowledgeable about the availability of resources of the public agency (§300.344(a)(4)).
Each public agency may determine which specific staff member will serve as the agency representative in a particular IEP meeting, so long as the individual meets these requirements. It is important, however, that the agency representative have the authority to commit agency resources and be able to ensure that whatever services are set out in the IEP will actually be provided.
A public agency may designate another public agency member of the IEP team to also serve as the agency representative, so long as that individual meets the requirements of §300.344(a)(4).
23. For a child with a disability being considered for initial provision of special education and related services, which teacher or teachers should attend the IEP meeting?
A child's IEP team must include at least one of the child's regular education teachers (if the child is, or may be participating in the regular education environment) and at least one of the child's special education teachers, or, if appropriate, at least one of the child's special education providers (§300.344(a)(2) and (3)).
Each IEP must include a statement of the present levels of educational performance, including a statement of how the child's disability affects the child's involvement and progress in the general curriculum (§300.347(a)(1)). At least one regular education teacher is a required member of the IEP team of a child who is, or may be, participating in the regular educational environment, regardless of the extent of that participation.
The requirements of §300.344(a)(3) can be met by either: (1) a special education teacher of the child; or (2) another special education provider of the child, such as a speech pathologist, physical or occupational therapist, etc., if the related service consists of specially designed instruction and is considered special education under applicable State standards.
Sometimes more than one meeting is necessary in order to finalize a child's IEP. In this process, if the special education teacher or special education provider who will be working with the child is identified, it would be useful to have that teacher or provider participate in the meeting with the parents and other members of the IEP team in finalizing the IEP. If this is not possible, the public agency must ensure that the teacher or provider has access to the child's IEP as soon as possible after it is finalized and before beginning to work with the child.
Further, (consistent with §300.342(b)), the public agency must ensure that each regular education teacher, special education teacher, related services provider and other service provider of an eligible child under this part (1) has access to the child's IEP, and (2) is informed of his or her specific responsibilities related to implementing the IEP, and of the specific accommodations, modifications, and supports that must be provided to the child in accordance with the IEP. This requirement is crucial to ensuring that each child receives FAPE in accordance with his or her IEP, and that the IEP is appropriately and effectively implemented.
24. What is the role of a regular education teacher in the development, review and revision of the IEP for a child who is, or may be, participating in the regular education environment?
As required by §300.344(a)(2), the IEP team for a child with a disability must include at least one regular education teacher of the child if the child is, or may be, participating in the regular education environment. Section 300.346(d) further specifies that the regular education teacher of a child with a disability, as a member of the IEP team, must, to the extent appropriate, participate in the development, review, and revision of the child's IEP, including assisting in—(1) the determination of appropriate positive behavioral interventions and strategies for the child; and (2) the determination of supplementary aids and services, program modifications, and supports for school personnel that will be provided for the child, consistent with 300.347(a)(3) (§300.344(d)).
Thus, while a regular education teacher must be a member of the IEP team if the child is, or may be, participating in the regular education environment, the teacher need not (depending upon the child's needs and the purpose of the specific IEP team meeting) be required to participate in all decisions made as part of the meeting or to be present throughout the entire meeting or attend every meeting. For example, the regular education teacher who is a member of the IEP team must participate in discussions and decisions about how to modify the general curriculum in the regular classroom to ensure the child's involvement and progress in the general curriculum and participation in the regular education environment.
Depending upon the specific circumstances, however, it may not be necessary for the regular education teacher to participate in discussions and decisions regarding, for example, the physical therapy needs of the child, if the teacher is not responsible for implementing that portion of the child's IEP.
In determining the extent of the regular education teacher's participation at IEP meetings, public agencies and parents should discuss and try to reach agreement on whether the child's regular education teacher that is a member of the IEP team should be present at a particular IEP meeting and, if so, for what period of time. The extent to which it would be appropriate for the regular education teacher member of the IEP team to participate in IEP meetings must be decided on a case-by-case basis.
25. If a child with a disability attends several regular classes, must all of the child's regular education teachers be members of the child's IEP team?
No. The IEP team need not include more than one regular education teacher of the child. If the participation of more than one regular education teacher would be beneficial to the child's success in school (e.g., in terms of enhancing the child's participation in the general curriculum), it would be appropriate for them to attend the meeting.
26. How should a public agency determine which regular education teacher and special education teacher will be members of the IEP team for a particular child with a disability?
The regular education teacher who serves as a member of a child's IEP team should be a teacher who is, or may be, responsible for implementing a portion of the IEP, so that the teacher can participate in discussions about how best to teach the child.
If the child has more than one regular education teacher responsible for carrying out a portion of the IEP, the LEA may designate which teacher or teachers will serve as IEP team member(s), taking into account the best interest of the child.
In a situation in which not all of the child's regular education teachers are members of the child's IEP team, the LEA is strongly encouraged to seek input from the teachers who will not be attending. In addition, (consistent with §300.342(b)), the LEA must ensure that each regular education teacher (as well as each special education teacher, related services provider, and other service provider) of an eligible child under this part (1) has access to the child's IEP, and (2) is informed of his or her specific responsibilities related to implementing the IEP, and of the specific accommodations, modifications and supports that must be provided to the child in accordance with the IEP.
In the case of a child whose behavior impedes the learning of the child or others, the LEA is encouraged to have a regular education teacher or other person knowledgeable about positive behavior strategies at the IEP meeting. This is especially important if the regular education teacher is expected to carry out portions of the IEP.
Similarly, the special education teacher or provider of the child who is a member of the child's IEP team should be the person who is, or will be, responsible for implementing the IEP. If, for example, the child's disability is a speech impairment, the special education teacher on the IEP team could be the speech-language pathologist.
27. For a child whose primary disability is a speech impairment, may a public agency meet its responsibility under §300.344(a)(3) to ensure that the IEP team includes “at least one special education teacher, or, if appropriate, at least one special education provider of the child” by including a speech-language pathologist on the IEP team?
Yes, if speech is considered special education under State standards. As with other children with disabilities, the IEP team must also include at least one of the child's regular education teachers if the child is, or may be, participating in the regular education environment.
28. Do parents and public agencies have the option of inviting any individual of their choice be participants on their child's IEP team?
The IEP team may, at the discretion of the parent or the agency, include “other individuals who have knowledge or special expertise regarding the child * * *” (§300.344(a)(6), italics added). Under §300.344(a)(6), these individuals are members of the IEP team. This is a change from prior law, which provided, without qualification, that parents or agencies could have other individuals as members of the IEP team at the discretion of the parents or agency.
Under §300.344(c), the determination as to whether an individual has knowledge or special expertise, within the meaning of §300.344(a)(6), shall be made by the parent or public agency who has invited the individual to be a member of the IEP team.
Part B does not provide for including individuals such as representatives of teacher organizations as part of an IEP team, unless they are included because of knowledge or special expertise regarding the child. (Because a representative of a teacher organization would generally be concerned with the interests of the teacher rather than the interests of the child, and generally would not possess knowledge or expertise regarding the child, it generally would be inappropriate for such an official to be a member of the IEP team or to otherwise participate in an IEP meeting.)
29. Can parents or public agencies bring their attorneys to IEP meetings, and, if so under what circumstances? Are attorney's fees available for parents' attorneys if the parents are prevailing parties in actions or proceedings brought under Part B?
Section 300.344(a)(6) authorizes the addition to the IEP team of other individuals at the discretion of the parent or the public agency only if those other individuals have knowledge or special expertise regarding the child. The determination of whether an attorney possesses knowledge or special expertise regarding the child would have to be made on a case-by-case basis by the parent or public agency inviting the attorney to be a member of the team.
The presence of the agency's attorney could contribute to a potentially adversarial atmosphere at the meeting. The same is true with regard to the presence of an attorney accompanying the parents at the IEP meeting. Even if the attorney possessed knowledge or special expertise regarding the child (§300.344(a)(6)), an attorney's presence would have the potential for creating an adversarial atmosphere that would not necessarily be in the best interests of the child.
Therefore, the attendance of attorneys at IEP meetings should be strongly discouraged. Further, as specified in Section 615(i)(3)(D)(ii) of the Act and §300.513(c)(2)(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 conducted prior to the request for a due process hearing.
30. Must related services personnel attend IEP meetings?
Although Part B does not expressly require that the IEP team include related services personnel as part of the IEP team (§300.344(a)), it is appropriate for those persons to be included if a particular related service is to be discussed as part of the IEP meeting. Section 300.344(a)(6) provides that the IEP team also includes “at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate. * * *” (Italics added.)
Further, §300.344(a)(3) requires that the IEP team for each child with a disability include “at least one special education teacher, or, if appropriate, at least one special education provider of the child * * *” This requirement can be met by the participation of either (1) a special education teacher of the child, or (2) another special education provider such as a speech-language pathologist, physical or occupational therapist, etc., if the related service consists of specially designed instruction and is considered special education under the applicable State standard.
If a child with a disability has an identified need for related services, it would be appropriate for the related services personnel to attend the meeting or otherwise be involved in developing the IEP. As explained in the Committee Reports on the IDEA Amendments of 1997, “Related services personnel should be included on the team when a particular related service will be discussed at the request of the child's parents or the school.” (H. Rep. No. 105–95, p. 103 (1997); S. Rep. No. 105–17, p. 23 (1997)). For example, if the child's evaluation indicates the need for a specific related service (e.g., physical therapy, occupational therapy, special transportation services, school social work services, school health services, or counseling), the agency should ensure that a qualified provider of that service either (1) attends the IEP meeting, or (2) provides a written recommendation concerning the nature, frequency, and amount of service to be provided to the child. This written recommendation could be a part of the evaluation report.
A public agency must ensure that all individuals who are necessary to develop an IEP that will meet the child's unique needs, and ensure the provision of FAPE to the child, participate in the child's IEP meeting.
31. Must the public agency ensure that all services specified in a child's IEP are provided?
Yes. The public agency must ensure that all services set forth in the child's IEP are provided, consistent with the child's needs as identified in the IEP. The agency may provide each of those services directly, through its own staff resources; indirectly, by contracting with another public or private agency; or through other arrangements. In providing the services, the agency may use whatever State, local, Federal, and private sources of support are available for those purposes (see §300.301(a)); but the services must be at no cost to the parents, and the public agency remains responsible for ensuring that the IEP services are provided in a manner that appropriately meets the student's needs as specified in the IEP. The SEA and responsible public agency may not allow the failure of another agency to provide service(s) described in the child's IEP to deny or delay the provision of FAPE to the child. (See §300.142, Methods of ensuring services.)
32. Is it permissible for an agency to have the IEP completed before the IEP meeting begins?
No. Agency staff may come to an IEP meeting prepared with evaluation findings and proposed recommendations regarding IEP content, but the agency must make it clear to the parents at the outset of the meeting that the services proposed by the agency are only recommendations for review and discussion with the parents. Parents have the right to bring questions, concerns, and recommendations to an IEP meeting as part of a full discussion, of the child's needs and the services to be provided to meet those needs before the IEP is finalized.
Public agencies must ensure that, if agency personnel bring drafts of some or all of the IEP content to the IEP meeting, there is a full discussion with the child's parents, before the child's IEP is finalized, regarding drafted content and the child's needs and the services to be provided to meet those needs.
33. Must a public agency include transportation in a child's IEP as a related service?
As with other related services, a public agency must provide transportation as a related service if it is required to assist the disabled child to benefit from special education. (This includes transporting a preschool-aged child to the site at which the public agency provides special education and related services to the child, if that site is different from the site at which the child receives other preschool or day care services.)
In determining whether to include transportation in a child's IEP, and whether the child needs to receive transportation as a related service, it would be appropriate to have at the IEP meeting a person with expertise in that area. In making this determination, the IEP team must consider how the child's disability affects the child's need for transportation, including determining whether the child's disability prevents the child from using the same transportation provided to nondisabled children, or from getting to school in the same manner as nondisabled children.
The public agency must ensure that any transportation service included in a child's IEP as a related service is provided at public expense and at no cost to the parents, and that the child's IEP describes the transportation arrangement.
Even if a child's IEP team determines that the child does not require transportation as a related service, Section 504 of the Rehabilitation Act of 1973, as amended, requires that the child receive the same transportation provided to nondisabled children. If a public agency transports nondisabled children, it must transport disabled children under the same terms and conditions. However, if a child's IEP team determines that the child does not need transportation as a related service, and the public agency transports only those children whose IEPs specify transportation as a related service, and does not transport nondisabled children, the public agency would not be required to provide transportation to a disabled child.
It should be assumed that most children with disabilities receive the same transportation services as nondisabled children. For some children with disabilities, integrated transportation may be achieved by providing needed accommodations such as lifts and other equipment adaptations on regular school transportation vehicles.
34. Must a public agency provide related services that are required to assist a child with a disability to benefit from special education, whether or not those services are included in the list of related services in §300.24?
The list of related services is not exhaustive and may include other developmental, corrective, or supportive services if they are required to assist a child with a disability to benefit from special education. This could, depending upon the unique needs of a child, include such services as nutritional services or service coordination.
These determinations must be made on an individual basis by each child's IEP team.
35. Must the IEP specify the amount of services or may it simply list the services to be provided?
The amount of services to be provided must be stated in the IEP, so that the level of the agency's commitment of resources will be clear to parents and other IEP team members (§300.347(a)(6)). The amount of time to be committed to each of the various services to be provided must be (1) appropriate to the specific service, and (2) stated in the IEP in a manner that is clear to all who are involved in both the development and implementation of the IEP.
The amount of a special education or related service to be provided to a child may be stated in the IEP as a range (e.g., speech therapy to be provided three times per week for 30–45 minutes per session) only if the IEP team determines that stating the amount of services as a range is necessary to meet the unique needs of the child. For example, it would be appropriate for the IEP to specify, based upon the IEP team's determination of the student's unique needs, that particular services are needed only under specific circumstances, such as the occurrence of a seizure or of a particular behavior. A range may not be used because of personnel shortages or uncertainty regarding the availability of staff.
36. Under what circumstances is a public agency required to permit a child with a disability to use a school-purchased assistive technology device in the child's home or in another setting?
Each child's IEP team must consider the child's need for assistive technology (AT) in the development of the child's IEP (§300.346(a)(2)(v)); and the nature and extent of the AT devices and services to be provided to the child must be reflected in the child's IEP (§300.346(c)).
A public agency must permit a child to use school-purchased assistive technology devices at home or in other settings, if the IEP team determines that the child needs access to those devices in nonschool settings in order to receive FAPE (to complete homework, for example).
Any assistive technology devices that are necessary to ensure FAPE must be provided at no cost to the parents, and the parents cannot be charged for normal use, wear and tear. However, while ownership of the devices in these circumstances would remain with the public agency, State law, rather than Part B, generally would govern whether parents are liable for loss, theft, or damage due to negligence or misuse of publicly owned equipment used at home or in other settings in accordance with a child's IEP.
37. Can the IEP team also function as the group making the placement decision for a child with a disability?
Yes, a public agency may use the IEP team to make the placement decision for a child, so long as the group making the placement decision meets the requirements of §§300.552 and 300.501(c), which requires that the placement decision be 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.
38. If a child's IEP includes behavioral strategies to address a particular behavior, can a child ever be suspended for engaging in that behavior?
If a child's behavior impedes his or her learning or that of others, the IEP team, in developing the child's IEP, must consider, if appropriate, development of strategies, including positive behavioral interventions, strategies and supports to address that behavior, consistent with §300.346(a)(2)(i). This means that in most cases in which a child's behavior that impedes his or her learning or that of others is, or can be readily anticipated to be, repetitive, proper development of the child's IEP will include the development of strategies, including positive behavioral interventions, strategies and supports to address that behavior. See §300.346(c). This includes behavior that could violate a school code of conduct. A failure to, if appropriate, consider and address these behaviors in developing and implementing the child's IEP would constitute a denial of FAPE to the child. Of course, in appropriate circumstances, the IEP team, which includes the child's parents, might determine that the child's behavioral intervention plan includes specific regular or alternative disciplinary measures, such as denial of certain privileges or short suspensions, that would result from particular infractions of school rules, along with positive behavior intervention strategies and supports, as a part of a comprehensive plan to address the child's behavior. Of course, if short suspensions that are included in a child's IEP are being implemented in a manner that denies the child access to the ability to progress in the educational program, the child would be denied FAPE.
Whether other disciplinary measures, including suspension, are ever appropriate for behavior that is addressed in a child's IEP will have to be determined on a case by case basis in light of the particular circumstances of that incident. However, school personnel may not use their ability to suspend a child for 10 days or less at a time on multiple occasions in a school year as a means of avoiding appropriately considering and addressing the child's behavior as a part of providing FAPE to the child.
39. If a child's behavior in the regular classroom, even with appropriate interventions, would significantly impair the learning of others, can the group that makes the placement decision determine that placement in the regular classroom is inappropriate for that child?
The IEP team, in developing the IEP, is required to consider, when appropriate, strategies, including positive behavioral interventions, strategies and supports to address the behavior of a child with a disability whose behavior impedes his or her learning or that of others. If the IEP team determines that such supports, strategies or interventions are necessary to address the behavior of the child, those services must be included in the child's IEP. These provisions are designed to foster increased participation of children with disabilities in regular education environments or other less restrictive environments, not to serve as a basis for placing children with disabilities in more restrictive settings.
The determination of appropriate placement for a child whose behavior is interfering with the education of others requires careful consideration of whether the child can appropriately function in the regular classroom if provided appropriate behavioral supports, strategies and interventions. If the child can appropriately function in the regular classroom with appropriate behavioral supports, strategies or interventions, placement in a more restrictive environment would be inconsistent with the least restrictive environment provisions of the IDEA. If the child's behavior in the regular classroom, even with the provision of appropriate behavioral supports, strategies or interventions, would significantly impair the learning of others, that placement would not meet his or her needs and would not be appropriate for that child.
40. May school personnel during a school year implement more than one short-term removal of a child with disabilities from his or her classroom or school for misconduct?
Yes. Under §300.520(a)(1), school personnel may order 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 these removals do not constitute a change of placement under §300.519(b). However, these removals are permitted only to the extent they are consistent with discipline that is applied to children without disabilities. Also, school personnel should be aware of constitutional due process protections that apply to suspensions of all children. Goss v. Lopez, 419 U.S. 565 (1975). Section 300.121(d) addresses the extent of the obligation to provide services 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.
Appendix B to Part 300—Index for IDEA—Part B Regulations (34 CFR Part 300)
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[64 FR 34049, June 24, 1999]
Appendix C to Part 300;—Implementation of the 20 Percebt Rule Under §300.233
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This appendix is intended to assist States and LEAs to implement the “20 percent rule” under Part B (section 613(a)(2)(C)) of the Individuals with Disabilities Education Act (IDEA), and, specifically, the regulation implementing that provision in §300.233. The purposes of the appendix are to—(1) provide background information about the 20 percent rule and its intended effect, including specifying which funds under Part B of the Act are covered by the provision (as described in §300.233), and the basis for the Department's decision regarding those funds; and (2) include examples showing how the 20 percent rule would apply in several situations.
A. Background
1. Purpose of 20 Percent Rule. The IDEA Amendments of 1997 (Pub. L. 105–17) added a provision related to the permissive treatment of a portion of Part B funds by LEAs for maintenance of effort and non-supplanting purposes in certain fiscal years (see section 613(a)(2)(C) of the Act and §300.233). Under that provision, for any fiscal year (FY) for which the appropriation for section 611 of IDEA exceeds $4.1 billion, an LEA may treat as local funds, for maintenance of effort and non-supplanting purposes, up to 20 percent of the amount it receives that exceeds the amount it received under Part B during the prior year.
Thus, under §300.233, an LEA is able to meet the maintenance of effort requirement of §300.231 and the non-supplanting requirement of §300.230(c) even though it reduces the amount it spends of other local or local and State funds, as the case may be, by an amount equal to the amount of Federal funds that may be treated as local funds.
2. 20 Percent Rule Applies Only to LEA Subgrants. Following enactment of the IDEA Amendments of 1997 (and publication of Part B regulations on March 12, 1999), State and local educational agency officials stated that it is not clear from the Act and regulations whether the funds affected by the 20 percent rule are only those that an LEA receives through statutory subgrants under section 611(g), or whether the provision also applies to other Part B funding sources (i.e., subgrants to LEAs for capacity-building and improvement under section 611(f)(4); other funds the SEA may provide to LEAs under section 611(f); or funds provided under section 619 (Preschool Grants program)).
Further, because section 613(a)(2)(C) refers to an amount of funds that an LEA “receives” in one fiscal year compared to the amount it “received” in the prior fiscal year (and because agencies may, at any one point in time, be using funds appropriated in several Federal fiscal years), agency officials were uncertain as to how to determine that an LEA had “received” Federal funds.
Because the statute and regulations were not sufficiently clear with respect to which precise funds are affected by the 20 percent rule, this could have resulted in the provision being interpreted and applied differently from LEA to LEA. If that situation were to occur, it could result in a significant increase in the number of audit exceptions against LEAs.
Given the confusion about which funding sources are affected by the 20 percent rule, there was a critical need to set out in the regulations a clear interpretation of section 613(a)(2)(C) in order to support its consistent application across LEAs and States, and to reduce the potential for audit exceptions. Thus, on June 10, 2000, the Department published a notice of proposed rulemaking (NPRM) regarding this provision (65 FR 30314). The NPRM stated that—
In light of the statutory structure for distribution of Federal funds to LEAs, we believe that the most reasonable interpretation is to apply that provision only to subgrants to LEAs under section 611(g) of the Act (§300.712 of the regulations) from funds appropriated from one Federal fiscal year compared to funds appropriated for the prior Federal fiscal year. (Emphasis added.)
Thus, the NPRM proposed to exclude the other Federal funds under Part B of the Act (i.e., Subgrants to LEAs for capacity-building and improvement under section 611(f)(4) (§300.622); other funds the SEA may provide to LEAs under section 611(f) (§300.602); and preschool grant funds under section 619 (34 CFR part 301)) from the funds that could be treated as local funds. The reasons for excluding these other Part B funds were stated in the NPRM, as follows:
• If IDEA funds that States have the authority to provide to LEAs on a discretionary basis (such as those identified in the preceding paragraph) are included in the 20 percent calculation, it would result in some LEAs receiving a proportionately greater benefit from this provision than other LEAs, based on receipt of funds that may be earmarked for a specific, time-limited purpose. This would lead to inequitable results of the §300.233 exception across LEAs in a State.
• Including section 619 formula grant funds (34 CFR part 301) in the calculation does not appear to be justified as the “trigger” appropriation amount applies only with respect to the amount appropriated under section 611.
The Department subsequently determined that the position taken in the NPRM (that the provision under §300.233 should apply only to LEA subgrant funds under section 611(g) of the Act) is the most appropriate and reasonable position to follow in implementing the 20 percent rule. Therefore, the proposed provision in §300.233(a)(1) was retained, without change, in the final regulations.
B. Application of the 20 percent rule
1. Examples Related to Implementing the 20 percent rule
The following are examples showing how the 20 percent provision would apply under several situations:
• Example 1: An LEA receives $100,000 in Federal LEA Subgrant funds under section 611(g) of the Act from the appropriation for one fiscal year (FY–1), and $120,000 in section 611(g) funds from the appropriation for the following fiscal year (FY–2). The LEA may spend and treat as local funds up to 20 percent of the $20,000 in section 611(g) funds it receives from FY–2 (i.e., up to $4,000), since this is the amount that exceeds the amount it received from the prior year.
• Example 1–A: In Example 1, an LEA in FY–2 is uncertain whether to exercise its option to treat as local funds during FY–2 up to $4,000 of its section 611(g) funds received from FY–2, and wishes to wait until the carry-over year to make a decision. If the LEA decides to exercise its option during the carry-over period regarding the $4,000 from the FY–2 appropriation, it could do so as long as those funds are used within the carry-over period for FY–2.
• Example 1–B: An LEA receives $100,000 in section 611(g) funds from FY–1, $120,000 from FY–2 and $140,000 from FY–3. The LEA may spend and treat as local funds up to 20 percent of the $20,000 from FY–2 funds and $20,000 of FY–3 funds (i.e., up to $4,000 for each year). Thus, if its FY–2 funds are not used until FY–3, and the LEA so chooses, it may spend and treat as local funds during FY–3 a total of up to $8,000 in section 611(g) funds (i.e., $4,000 from FY–2 and $4,000 from FY–3), provided those funds are obligated by the end of FY–3.
• Example 2: An LEA from one fiscal year (FY–1) receives $100,000 in section 611(g) funds and $20,000 in SEA discretionary funds under section 611(f) of the Act; and from the following year (FY–2) receives $120,000 in section 611(g) funds, but does not receive any funds under section 611(f). The LEA may spend and treat up to 20 percent of the $20,000 in section 611(g) funds it receives from FY–2 (i.e. up to $4,000), since $20,000 is the amount of section 611(g) funds that exceeds the amount it received from FY–1.
• Example 3: An LEA had all of its section 611(g) funds ($100,000) withheld from one fiscal year (FY–1); but in the next fiscal year (FY–2), the LEA received a total of $220,000 in section 611(g) funds (i.e., $100,000 from FY–1, plus $120,000 from FY–2). Because the LEA would have been entitled to $100,000 in FY–1, the LEA may spend and treat as local funds up to 20 percent of the $20,000 from FY–2 that exceeded the FY–1 allotment (i.e., up to $4,000).
• Example 4: An LEA received $100,000 under section 611(g) from one fiscal year (FY–1), and would have received $120,000 in section 611(g) funds for the next fiscal year (FY–2); but the LEA has had all of its section 611(g) funds withheld in FY–2 because of a finding of noncompliance under §300.197 or §300.587. The LEA would have no section 611(g) funds that could be spent or treated as local funds until those funds are released.
• Example 4–A: In example 4, the SEA subsequently determines that the LEA is in compliance, and releases the FY–2 funds to the LEA later in that fiscal year. The LEA could then spend and treat as local funds up to 20 percent of the $20,000 that exceeds the amount it received in FY–1 (i.e., up to $4,000). Those funds could be used by the LEA for the remainder of FY–2 and through the end of the carry-over period for FY–2 funding.
2. Auditing for Compliance with §300.231 and the 20 percent rule in §300.233
The following provides guidance for use by auditors in determining if LEAs are in compliance with the maintenance of effort requirement in §300.231 and the 20 percent rule in §300.233:
a. Meeting the Maintenance of Effort Requirement. In order to be eligible to receive an IDEA-Part B subgrant in any particular fiscal year, an LEA is required to demonstrate that it has budgeted an amount of State and local funds, or just local funds, to be spent on special education and related services that equals or exceeds (on either an aggregate or per capita basis) the amount of those funds spent by the LEA for those purposes in the prior fiscal year, or in the most recent prior fiscal year for which information is available. 34 CFR 300.231.
b. Auditing Compliance with §300.231. Auditors, in determining if an LEA has complied with §300.231 in any particular fiscal year, review the actual level of expenditures of State and local funds, or just local funds, on special education and related services for the year in question and the prior year. For example, consider an LEA that, in the LEA's FY–1, spent a total of $1,000,000 of local funds on special education and related services to serve 100 students with disabilities. (For this discussion, assume that the LEA does not receive any State funds for any year for special education and related services.) An auditor, in trying to determine if the LEA, in its FY–2, had complied with §300.231, would review the LEA's expenditure of local funds on special education and related services. If, in the LEA's FY–2, the LEA served 100 students with disabilities and spent $1,000,000 or more in local funds on special education and related services, it would have met the requirements of §300.231 for FY–2.
c. Application of the 20 percent rule to §300.231. If the LEA in the preceding example had spent only $996,000 of local funds on special education and related services for its 100 students with disabilities in its FY–2 (not counting any section 611(g) subgrant funds that could be considered local funds under the 20 percent rule), then it would have failed to meet its obligation under §300.231, and an auditor would question $4,000 of the LEA's IDEA-Part B subgrant expenditures in that year.
This questioned cost, however, could be avoided, if the LEA had available, and spent, $4,000 of Federal funds under the 20 percent rule during its FY–2. These funds may be available from a variety of sources (see Examples in paragraph 1). If, as described in Example 1 of paragraph 1 the LEA had received from the Federal FY–2 appropriation, a section 611(g) subgrant that was $20,000 greater than the subgrant it received from the Federal FY–1 appropriation, then up to $4,000 of that subgrant could be treated as local funds. The LEA, however, would have to spend at least $4,000 of its Federal FY–2 section 611(g) subgrant during its FY–2 in order for those funds to count as part of its local expenditures for that year for purposes of §300.231.
In this example, if the LEA had carried over all of its Federal FY–2 section 611(g) subgrant to the LEA's FY–3 (and thus did not spend any of those funds during its FY–2), then none of the section 611(g) subgrant funds subject to the 20 percent rule could be considered as local funds for purposes of determining compliance with §300.231. (The reason for this is that auditors, in determining an LEA's compliance with §300.231, examine State and local, or local funds the LEA actually spent on special education and related services, and not those funds that the LEA could, but did not, spend for those purposes.)
If the LEA, in its FY–2, spent $4,000 of its Federal FY–2 section 611(g) subgrant, then the LEA could count those expenditures and bring itself into compliance with §300.231 (i.e., $996,000 of the LEA's own local funds spent on special education and related services plus the $4,000 of Federal FY–2 section 611(g) funds that can be counted as local funds equals a total of $1,000,000 of local expenditures on special education in its FY–2—the amount of local expenditures needed to comply with §300.231). However, if the LEA elected to take this step, it could not count any of the Federal FY–2 section 611(g) subgrant funds that it will spend in its FY–3 as local funds.
If the LEA, in its FY–2, spent only $3,000 of its Federal FY–2 section 611(g) subgrant funds, then those funds could be counted by the LEA as local funds in calculating its compliance with §300.231 for its FY–2. If the remaining $1,000 of Federal FY–2 funds available to be considered local funds were spent in the LEA's FY–3, those funds could be considered in determining the LEA's compliance with §300.231 for its FY–3. (Note, However, that if in its FY–2 the LEA had only spent $996,000 of local funds and $3,000 of its Federal funds, it would not have met the requirements of §300.231. In this case the auditor would have $1,000 of questioned costs ($1,000,000 − [$996,000 + $3,000] = $1,000) for FY–2).
[66 FR 1476, Jan. 8, 2001]
Appendix D to Part 300—National Instructional Materials Accessibility Standard (NIMAS)
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Under sections 612(a)(23)(A) and 674(e)(4) of the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004, the Secretary of Education establishes the NIMAS. Under section 674(e)(4) of the Act, the NIMAS applies to print instructional materials published after August 18, 2006. The purpose of the NIMAS is to help increase the availability and timely delivery of print instructional materials in accessible formats to blind or other persons with print disabilities in elementary and secondary schools.
Technical Specifications—The Baseline Element Set
The Baseline Element Set details the minimum requirement that must be delivered to fulfill the NIMAS. It is the responsibility of publishers to provide this NIMAS-conformant XML content file, a package file (OPF), a PDF-format copy of the title page (or whichever page(s) contain(s) ISBN and copyright information), and a full set of the content's images. All of the images included within a work must be provided in a folder and placeholders entered in the relevant XML document indicating their location (all images must be included). The preferred image type is SVG, next is either PNG or JPG format. Images should be rendered in the same size/proportion as their originals at 300 dpi. Images should be named with relative path filenames in XML files (example: <img id=”staricon4” src=”./images/U10C02/staricon4.jpg” alt=”star icon”/>).
NIMAS-conformant content must be valid to the NIMAS 1.1 [see ANSI/NISO Z39.86 2005 or subsequent revisions]. In addition, files are required to use the tags from the Baseline Element Set when such tags are appropriate. Publishers are encouraged to augment the required Baseline Element Set with tags from the Optional Element Set (elements not included in the Standard) as applicable. For the purposes of NIMAS, appropriate usage of elements, both baseline and optional, is defined by the DAISY Structure Guidelines. Files that do not follow these guidelines in the selection and application of tags are not conformant to this Standard. Both optional elements and appropriate structure guidelines may be located within Z39.86–2002 and Z39.86–2005 available from http://www.daisy.org/z3986/. Use of the most current standard is recommended.
The Baseline Element Set
a. Document-Level Tags
------------------------------------------------------------------------ Element Description------------------------------------------------------------------------dtbook............................ The root element in the Digital Talking Book DTD. <dtbook> contains metadata in <head> and the contents itself in <book>.head.............................. Contains metainformation about the book but no actual content of the book itself, which is placed in <book>.book.............................. Surrounds the actual content of the document, which is divided into <frontmatter>, <bodymatter>, and <rearmatter>. <head>, which contains metadata, precedes <book>.meta.............................. Indicates metadata about the book. It is an empty element that may appear repeatedly only in <head>. For the most current usage guidelines, please refer to http:// www.daisy.org/z3986/.------------------------------------------------------------------------
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b. Structure and Hierarchy
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------------------------------------------------------------------------ Element Description------------------------------------------------------------------------frontmatter....................... Usually contains <doctitle> and <docauthor>, as well as preliminary material that is often enclosed in appropriate <level> or <level1> etc. Content may include a copyright notice, a foreword, an acknowledgements section, a table of contents, etc. <frontmatter> serves as a guide to the content and nature of a <book>.bodymatter........................ Consists of the text proper of a book, as contrasted with preliminary material <frontmatter> or supplementary information in rearmatter <rearmatter>.rearmatter........................ Contains supplementary material such as appendices, glossaries, bibliographies, and indices. It follows <bodymater> the of the book.level1............................ The highest-level container of major divisions of a book. Used in <frontmatter>, <bodymater>, and <rearmatter> to mark the largest divisions of the book (usually parts or chapters), inside which <level2> subdivisions (often sections) may nest. The class attribute identifies the actual name (e.g., part, chapter) of the structure it marks. Contrast with <level>.level2............................ Contains subdivisions that nest within <level1> divisions. The class attribute identifies the actual name (e.g., subpart, chapter, subsection) of the structure it marks.level3............................ Contains sub-subdivisions that nest within <level2> subdivisions (e.g., sub-subsections within subsections). The class attribute identifies the actual name (e.g., section, subpart, subsubsection) of the subordinate structure it marks.level4............................ Contains further subdivisions that nest within <level3> subdivisions. The class attribute identifies the actual name of the subordinate structure it marks.level5............................ Contains further subdivisions that nest within <level4> subdivisions. The class attribute identifies the actual name of the subordinate structure it marks.level6............................ Contains further subdivisions that nest within <level5> subdivisions. The class attribute identifies the actual name of the subordinate structure it marks.h1................................ Contains the text of the heading for a <level1> structure.h2................................ Contains the text of the heading for a <level2> structure.h3................................ Contains the text of the heading for a <level3> structure.h4................................ Contains the text of the heading for a <level4> structure.h5................................ Contains the text of the heading for a <level5> structure.h6................................ Contains the text of the heading for a <level6> structure. For the most current usage guidelines, please refer to http:// www.daisy.org/z3986/.------------------------------------------------------------------------
------------------------------------------------------------------------ Element Description------------------------------------------------------------------------author............................ Identifies the writer of a work other than this one. Contrast with <docauthor>, which identifies the author of this work. <author> typically occurs within <blockquote> and <cite>.blockquote........................ Indicates a block of quoted content that is set off from the surrounding text by paragraph breaks. Compare with <q>, which marks short, inline quotations.list.............................. Contains some form of list, ordered or unordered. The list may have an intermixed heading <hd> (generally only one, possibly with <prodnote>), and an intermixture of list items <li> and <pagenum>. If bullets and outline enumerations are part of the print content, they are expected to prefix those list items in content, rather than be implicitly generated.li................................ Marks each list item in a <list>. <li> content may be either inline or block and may include other nested lists. Alternatively it may contain a sequence of list item components, <lic>, that identify regularly occurring content, such as the heading and page number of each entry in a table of contents.hd................................ Marks the text of a heading in a <list> or \ <sidebar>.note.............................. Marks a footnote, endnote, etc. Any local reference to <note id=``yyy''> is by <noteref idref=``#yyy''''>. [Attribute id].p................................. Contains a paragraph, which may contain subsidiary <list> or <dl>.sidebar........................... Contains information supplementary to the main text and/or narrative flow and is often boxed and printed apart from the main text block on a page. It may have a heading <hd>.cite.............................. Marks a reference (or citation) to another document.dd................................ Marks a definition of the preceding term <dt> within a definition list <dl>. A definition without a preceding <dt> has no semantic interpretation, but is visually presented aligned with other <dd>.dl................................ Contains a definition list, usually consisting of pairs of terms <dt> and definitions <dd>. Any definition can contain another definition list.dt................................ Marks a term in a definition list <dl> for which a definition <dd> follows. For the most current usage guidelines, please refer to http:// www.daisy.org/z3986/.------------------------------------------------------------------------
------------------------------------------------------------------------ Element Description------------------------------------------------------------------------em................................ Indicates emphasis. Usually <em> is rendered in italics. Compare with <strong>.q................................. Contains a short, inline quotation. Compare with <blockquote>, which marks a longer quotation set off from the surrounding text.strong............................ Marks stronger emphasis than <em>. Visually <strong> is usually rendered bold.sub............................... Indicates a subscript character (printed below a character's normal baseline). Can be used recursively and/or intermixed with <sup>.sup............................... Marks a superscript character (printed above a character's normal baseline). Can be used recursively and/or intermixed with <sub>.br................................ Marks a forced line break.line.............................. Marks a single logical line of text. Often used in conjunction with <linenum> in documents with numbered lines. [Use only when line breaks must be preserved to capture meaning (e.g., poems, legal texts).]linenum........................... Contains a line number, for example in legal text. [Use only when <line> is used, and only for lines numbered in print book.]pagenum........................... Contains one page number as it appears from the print document, usually inserted at the point within the file immediately preceding the first item of content on a new page. [NB: Only valid when it includes an id attribute].noteref........................... Marks one or more characters that reference a footnote or endnote <note>. Contrast with <annoref>. <noteref> and <note> are independently skippable. For the most current usage guidelines, please refer to http:// www.daisy.org/z3986/.------------------------------------------------------------------------
------------------------------------------------------------------------ Element Description------------------------------------------------------------------------table............................. Contains cells of tabular data arranged in rows and columns. A <table> may have a <caption>. It may have descriptions of the columns in <col>s or groupings of several <col> in <colgroup>. A simple <table> may be made up of just rows <tr>. A long table crossing several pages of the print book should have separate <pagenum> values for each of the pages containing that <table> indicated on the page where it starts. Note the logical order of optional <thead>, optional <tfoot>, then one or more of either <tbody> or just rows <tr>. This order accommodates simple or large, complex tables. The <thead> and <tfoot> information usually helps identify content of the <tbody> rows. For a multiple-page print <table> the <thead> and <tfoot> are repeated on each page, but not redundantly tagged.td................................ Indicates a table cell containing data.tr................................ Marks one row of a <table> containing <th> or <td> cells. For the most current usage guidelines, please refer to http:// www.daisy.org/z3986/.------------------------------------------------------------------------
------------------------------------------------------------------------ Element Description------------------------------------------------------------------------imggroup.......................... Provides a container for one or more <img> and associated <caption>(s) and <prodnote>(s). A <prodnote> may contain a description of the image. The content model allows: (1) multiple <img> if they share a caption, with the ids of each <img> in the <caption imgref=``id1 id2 . . .''>, (2) multiple <caption> if several captions refer to a single <img id=``xxx''> where each caption has the same <caption imgref=``xxx''>, (3) multiple <prodnote> if different versions are needed for different media (e.g., large print, braille, or print). If several <prodnote> refer to a single <img id=``xxx''>, each prodnote has the same <prodnote imgref=``xxx''>.img............................... Points to the image to be rendered. An <img> may stand alone or be grouped using <imggroup>. Note that providing extracted images is not a requirement of the NIMAS. If they are included, it is best to refer to them using <img> within the <imggroup> container.caption........................... Describes a <table> or <img>. If used with <table> it must follow immediately after the <table> start tag. If used with <imggroup> it is not so constrained. For the most current usage guidelines, please refer to http:// www.daisy.org/z3986/.------------------------------------------------------------------------
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1. The Optional Elements and Guidelines for Use
Publishers are encouraged to apply markup beyond the baseline (required) elements. The complete DTBook Element Set reflects the tags necessary to create the six types of Digital Talking Books and Braille output. Because of the present necessity to subdivide the creation of alternate format materials into distinct phases, the Panel determined that baseline elements would be provided by publishers, and optional elements would be added to the NIMAS-conformant files by third party conversion entities. In both circumstances the protocols for tagging digital files should conform to the most current ANSI/NISO Z39.86 specification. Content converters are directed to the most current DAISY Structure Guidelines (http://www.daisy.org/z3986/) for guidance on their use.
Since the publication of the original National File Format report from which the NIMAS technical specifications were derived, ANSI/NISO Z39.86–2002 was updated and is now ANSI/NISO Z39.86–2005. It may be best to avoid using the following optional elements which are no longer included in ANSI/NISO Z39.86–2005: style, notice, hr, and levelhd.
Also, the following new elements were introduced by ANSI/NISO Z39.86–2005 and should be considered optional elements for the NIMAS: bridgehead, byline, covertitle, dateline, epigraph, linegroup, and poem. Please refer to ANSI/NISO Z39.86–2005 for additional information regarding these elements. To access the ANSI/NISO Z39.86–2005 specification, go to http://www.daisy.org/z3986/.
2. Package File
A package file describes a publication. It identifies all other files in the publication and provides descriptive and access information about them. A publication must include a package file conforming to the NIMAS. The package file is based on the Open eBook Publication Structure 1.2 package file specification (For most recent detail please seehttp://www.openebook.org/oebps/oebps1.2/download/oeb12-xhtml.htm#sec2). A NIMAS package file must be an XML-valid OeB PS 1.2 package file instance and must meet the following additional standards:
The NIMAS Package File must include the following Dublin Core (dc:)metadata:
• dc:Title.
• dc:Creator (if applicable).
• dc:Publisher.
• dc:Date (Date of NIMAS-compliant file creation—yyyy-mm-dd).
• dc:Format (=“NIMAS 1.0”).
• dc:Identifier (a unique identifier for the NIMAS-compliant digital publication, e.g., print ISBN + “NIMAS”—exact format to be determined).
• dc:Language (one instance, or multiple in the case of a foreign language textbook, etc.).
• dc:Rights (details to be determined).
• dc:Source (ISBN of print version of textbook).
And the following x-metadata items:
• nimas-SourceEdition (the edition of the print textbook).
• nimas-SourceDate (date of publication of the print textbook).
The following metadata were proposed also as a means of facilitating recordkeeping, storage and file retrieval:
• dc:Subject (Lang Arts, Soc Studies, etc.).
• nimas-grade (specific grade level of the print textbook, e.g.; Grade 6).
• nimas gradeRange (specific grade range of the print textbook, e.g.; Grades 4–5).
An additional suggestion references the use of:
• dc:audience:educationLevel (for the grade and gradeRange identifiers, noting that Dublin Core recommends using educationLevel with an appropriate controlled vocabulary for context, and recommends the U.S. Department of Education's Level of Education vocabulary online at http://www.ed.gov/admin/reference/index.jsp. Using educationLevel obviates the need for a separate field for gradeRange since dc elements can repeat more than once. A book used in more than one grade would therefore have two elements, one with value “Grade 4” and another with value “Grade 5.”
A final determination as to which of these specific metadata elements to use needs to be clarified in practice. The package manifest must list all provided files (text, images, etc.). (Note: For purposes of continuity and to minimize errors in transformation and processing, the NIMAS-compliant digital text should be provided as a single document.)
3. Modular Extensions
The most current DAISY/NISO standard, formally the ANSI/NISO Z39.86, Specifications for the Digital Talking Book defines a comprehensive system for creating Digital Talking Books. A part of this standard is DTBook, an XML vocabulary that provides a core set of elements needed to produce most types of books. However, DTBook is not intended to be an exhaustive vocabulary for all types of books.
Guidelines for the correct approach to extend the DAISY/NISO standard have been established. Mathematics, video support, testing, workbooks, music, dictionaries, chemistry, and searching are some of the extensions that have been discussed. Visit http://www.daisy.org/z3986/ to learn more about modular extensions.
End
[71 FR 41086, July 19, 2006]
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