DEPARTMENT OF EDUCATION
34 CFR Parts 300 and 301
ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH
DISABILITIES PROGRAM AND PRESCHOOL GRANTS FOR CHILDREN WITH
DISABILITIES
RIN 1820-AA89
AGENCY: Department of Education
ACTION: Final regulations with comments invited
SUMMARY:

The Secretary issues final regulations for the
Assistance to States for the Education of Children with
Disabilities Program under Part B of the Individuals with
Disabilities Education Act (Part B). The regulations are needed

(1) to implement the amendments to Part B that were made by the
Handicapped Programs Technical Amendments Act of 1988, the
Education of the Handicapped Act Amendments of 1990 (1990
Amendments), the National Literacy Act of 1991, and the
Individuals with Disabilities Education Act Amendments of 1991
(1991 Amendments), and

(2) to make changes based on the
Department's experience in administering Part B. The Secretary
also amends existing regulations to implement the amendments to
the Preschool Grants Program under section 619 of the Individuals
with Disabilities Education Act that were made by the 1991
Amendments.
EFFECTIVE DATE: These regulations take effect either 45 days
after publication in the FEDERAL REGISTER or later if the
Congress takes certain adjournments, with the exception of the
following sections: Sec. 300.110; Sec. 300.121-300.123; Sec.
300.125-
300.134; Sec. 300.136; Sec. 300.138-300.141; Sec. 300.144; Sec.
300.146;
Sec. 300.148; Sec. 300.149; Sec. 300.152; Sec. 300.153; Sec.
300.180; Sec. 300.192;
Sec. 300.220; Sec. 300.222-300.227; Sec. 300.231; Sec. 300.235;
Sec. 300.238;
Sec. 300.240; Sec. 300.280; Sec. 300.281; Sec. 300.284; Sec.
300.341; Sec. 300.343;
Sec. 300.345; Sec. 300.346: Sec. 300.349; Sec. 300.380-300.383;
Sec. 300.402;
Sec. 300.482; Sec. 300.483; Sec. 300.505; Sec. 300.510; Sec.
300.512; Sec. 300.532;
Sec. 300.533; Sec. 300.543; Sec. 300.561-300.563; Sec. 300.565;
Sec. 300.569;
Sec. 300.571; Sec. 300.572; Sec. 300.574; Sec. 300.575; Sec.
300.589; Sec. 300.600;
Sec. 300.653; Sec. 300.660-300.662; Sec. 300.750; Sec. 300.751;
and Sec. 300.754.

These sections will become effective after the information
collection requirements contained in those sections have been
submitted by the Department of Education and approved by the
Office of Management and Budget under the Paperwork Reduction Act
of 1980.

If you want to know the effective date of these regulations, call
or write the Department of Education contact person. A document
announcing the effective date will be published in the FEDERAL
REGISTER.

FOR FURTHER INFORMATION CONTACT: Thomas B. Irvin, Office of
Special Education Programs, Department of Education, 400 Maryland
Avenue, S.W. (Switzer Building, Room 3615), Washington, D.C.
20202-2720. Telephone: (202) 205-8825. Individuals with
deafness or hearing impairments may call (202) 205-9090 for TDD
services.

ADDRESSES: All comments should be addressed to: Lucille
Sledger, Department of Education, 400 Maryland Avenue, S.W.
(Switzer Building, Room 3615), Washington, D.C. 20202-2720.

SUPPLEMENTARY INFORMATION:
I. Part B Program

Part B authorizes formula grants to States and, through the State
educational agencies (SEAs), to local educational agencies (LEAs)
and intermediate educational units (IEUs) to assist them in
meeting the special educational needs of children with
disabilities. In order to be eligible for funding under this
program, SEAs, LEAs, and IEUs are responsible for ensuring that
all children with disabilities have available to them a free
appropriate public education (FAPE), and that the procedural
protections in Part B and the implementing regulations are
extended to these children and their parents.

These final regulations implement the changes made to Part B by
the Handicapped Programs Technical Amendments Act of 1988, the
1990 Amendments (Pub. L. 101-476, enacted October 30, 1990), the
National Literacy Act of 1991 (Pub. L. 102-73, enacted July 25,
1991), and the 1991 Amendments (Pub. L. 102-119, enacted October
7, 1991). In addition, these regulations make changes based on
the Department's experience in administering Part B.

On August 19, 1991, the Secretary published a notice of proposed
rulemaking (NPRM) for this part in the FEDERAL REGISTER (56 FR
41266). The NPRM proposed to make the following changes to
implement the 1990 Amendments:

(1) Add "autism" and "traumatic brain injury" as separate
disability categories in the definition of children with
disabilities, and include definitions of those terms.

(2) Delete "in schools" from "social work services in schools"
in the list of eligible related services in Sec. 300.13(a) of the
current regulations for this part and delete "in schools" from
the definition of "social work services in schools" included at
Sec. 300.13(b)(11) of the current regulations for this part.

(3) Add a definition of "rehabilitation counseling services" to
implement the statutory amendment to the definition of "related
services" in section 602(a)(17) of the Act.

(4) Add the statutory definitions of "assistive technology
device" and "assistive technology service" and include a
requirement that if a child with a disability requires these
devices and services in order to receive FAPE, the public agency
must ensure that they are made available.

(5) Add provisions on transition services, including

(a) a definition of "transition services" in Sec. 300.18; (b) a
provision
specifying that the public agency must ensure that certain
transition services personnel participate in meetings to develop,
review, or revise a student's individualized education program
(IEP) if transition services are being considered; (c) a Note,
based on Sec. 300.344(a)(4) of the current regulations, stating
that,
if appropriate, the public agency must include the student in IEP
meetings concerning transition services; (d) a requirement that
the content of the IEP must include a statement of needed
transition services and of interagency responsibilities or
linkages if other State agencies have responsibility for
providing or paying for those services; and (e) a provision
specifying that if a participating agency fails to provide agreed
upon transition services, the public agency must reconvene the
IEP team to identify alternative strategies to be implemented to
meet the transition objectives in the student's IEP.

(6) Replace the current regulations on the comprehensive system
of personnel development (CSPD) in Sec. 300.380-300.387 with new
provisions reflecting changes made by the 1990 Amendments, and
make other changes to simplify and update the CSPD provisions of
the regulations.

The NPRM also proposed to make other changes in the current
regulations for this part, including

(1) deleting the data
collection reporting provisions in Sec. 300.124 and portions of
Sec. 300.125-300.127 of the current regulations;

(2) deleting the
current regulation in Sec. 300.382 regarding inservice training,
and
at Sec. 300.321(c) prohibiting the use of Part B funds for
preservice
training;
(3) adding a Note following Sec. 300.128 to clarify the
responsibility of the SEA and the State's Part H lead agency for
child find activities for infants and toddlers with disabilities
if those agencies are different;

(4) adding a provision to
Sec. 300.504 to clarify the conditions that must be met if a
State
adds consent requirements beyond those in the Federal
regulations;

(5) specifying that findings of fact and decisions
in due process hearings must be made available to the public,
after deleting personally identifiable information;

(6) adding a
provision to Sec. 300.510 regarding which officials may not
conduct
State-level reviews; and

(7) transferring requirements on State
complaint procedures from the Education Department General
Administrative Regulations (EDGAR) (34 CFR Sec. 76.780-76.782) to
this part in Sec. 300.660-300.662, and making some modifications
to
those requirements.

These final regulations incorporate technical changes made to
Part B, including changes made by the 1990 Amendments, to update
the terminology and references used in the current regulations.
Examples of these technical changes include:

(1) deleting
all references to "handicapped children" in the regulations and
substituting "children with disabilities;"

(2) deleting
all references to "annual program plan" and substituting "State
plan;"

(3) revising the list of other regulations that apply to
this program in Sec. 300.3 to include all currently applicable
provisions of EDGAR; and

(4) abbreviating certain frequently used
terms and adding a new note following the heading in Subpart A,
"Definitions," to specify that abbreviations will be used in
place of certain terms in the regulations (e.g., "IEP" for
"individualized education program" and "SEA" for "State
educational agency").

These final regulations also implement changes to Part B made by
the National Literacy Act, by amending the list of jurisdictions
eligible to participate in the Part B program (i.e., by deleting
the Trust Territory of the Pacific Islands and adding the
Federated States of Micronesia, the Republic of the Marshall
Islands, and Palau).

In addition, these final regulations incorporate certain
technical changes to Part B made by the 1991 Amendments. These
changes conform the regulations to the statutory changes and are
implemented as final regulations. The Secretary, however,
invites comment on these changes and on whether additional
regulatory changes are needed with respect to the statutory
changes made by the 1991 Amendments.


Analysis of Comments and Changes

In response to the Secretary's invitation in the NPRM, 280
parties submitted comments on the proposed regulations. An
analysis of the comments and of the changes that have been made
in the regulations since publication of the NPRM is published as
an appendix to these final regulations.

Major Changes in the Regulations

The following discussion in section A, Technical Changes,
identifies the changes made to reflect statutory amendments to
Part B made by the National Literacy Act. Section B, Substantive
Changes, identifies all major changes made in the regulations
based on the NPRM published on August 19, 1991. Additional
changes made in the regulations in this document as a result of
the 1991 Amendments are identified separately in section C.

A. Technical Changes

In accordance with changes made by the National Literacy Act,
Sec. 300.700 has been revised to reflect the current names of the
successor entities to the Trust Territories of the Pacific
Islands. Similarly, Sec. 300.711 (previously numbered Sec.
300.710) now
lists the current names of these entities, consistent with a
statutory change made by the National Literacy Act as amended by
the 1991 Amendments.

B. Substantive Changes

Below is a summary of the major substantive changes in these
final regulations based on the August 19, 1991 NPRM. References
to section numbers are to the final regulations.

1. Changes in Subpart A -- General

o The proposed definition of "autism" (Sec. 300.7(b)(1)) has been
revised to clarify that the characteristics listed as generally
associated with autism are not an exhaustive list of
characteristics necessary for a child to be considered as having
autism.

o The proposed definition of "traumatic brain injury"
(Sec. 300.7(b)(12)) has been revised to describe this disability
category more appropriately, and to clarify that the term
"traumatic brain injury" refers to injuries acquired after birth.

o The proposed definition of "rehabilitation counseling services"
(Sec. 300.16(b)(10)) has been revised to change the term
"qualified
counseling professional" to "qualified personnel."

o The phrase "in schools" has been retained in the definition of
"social work services in schools" (Sec. 300.16(b)(12)), and the
phrase "to receive maximum benefit" in the statement concerning
mobilizing school and community resources has been changed.

o The last sentence of the proposed Note following the definition
of "transition services" at Sec. 300.18 has been revised to
delete
the statement that the listed activities are only examples.

2. Changes in Subpart B -- State Plans and Local Applications

o Proposed Note 2 following Sec. 300.128 ("Identification,
location,
and evaluation of children with disabilities") has been revised
to clarify that where the Part H lead agency is different from
the SEA, actual implementation of the child find activities for
infants and toddlers with disabilities by the Part H lead agency
does not alter or diminish the SEA's responsibility for ensuring
compliance with child find and evaluation requirements. 3.

3. Changes in Subpart C -- Services

o Proposed Sec. 300.308 ("Assistive technology") has been revised
to
specify that assistive technology devices and services must be
provided if required as part of special education under Sec.
300.17,
related services under Sec. 300.16, or supplementary aids and
services under Sec. 300.550(b)(2).

o Section 300.344 ("Participants in meetings") has been revised
(1) to specify that if a purpose of a student's IEP meeting is
the consideration of transition services to the student, the
public agency must invite the student and a representative of any
other agency that is likely to be responsible for providing or
paying for transition services, and (2) to clarify what the
public agency must do if either the student or the agency
representative does not attend.

o Section 300.345 ("Parent participation") has been revised to
provide that if a purpose of the IEP meeting is the consideration
of transition services, the notice to the parents about the
meeting must indicate this purpose and indicate that the student
will be invited.

o Section 300.346 ("Content of IEP") has been revised to specify
that the statement of needed transition services in a student's
IEP must include the three areas listed in the definition of
"transition services" in Sec. 300.18(b), unless the IEP team
determines that services are not needed in one or more of those
areas and includes in the IEP a statement to that effect and the
basis for making the determination.

o Proposed Sec. 300.347 ("Agency responsibility for transition
services") has been revised

(1) to clarify that, if a
participating agency does not provide agreed-upon services, the
public agency must initiate another IEP meeting "as soon as
possible";

(2) to delete the phrase "to be implemented,"
following "alternative strategies"; and

(3) to add "and if
necessary, revising the student's IEP."

o The proposed provision requiring States to describe procedures
for enabling teacher aides to acquire the necessary credentials
for teaching special education has been deleted from Sec. 300.381
("Adequate supply of qualified personnel").

o The proposed definition of "regular education personnel," which
would have limited the regular education personnel that a State's
continuing education system would need to address, has been
deleted from Sec. 300.382 ("Personnel preparation and continuing
education").


4. Changes in Subpart E -- Procedural Safeguards

o Section 300.504 ("Prior notice; parent consent") has been
revised

(1) to delete the proposed provision requiring States to
establish and use informal and formal procedures to deal with
parental withholding of consent for services and activities
beyond those required in Sec. 300.504(b); and

(2) to clarify that if
a State has additional parental consent requirements, the State
must determine the procedures it will use to ensure that a
parent's failure to consent does not result in a failure to
provide FAPE to the child. Proposed Note 3 has been revised to
reflect these changes. The preexisting provision concerning the
circumstances under which a public agency can condition a benefit
on parent consent has been moved and modified to accommodate
additional State parent consent provisions.

o Section 300.510 ("Administrative appeal; impartial review") has
been revised to add a new provision requiring the SEA to transmit
review findings and decisions to the State advisory panel and to
make those findings and decisions available to the public. The
proposed provisions regarding the impartiality of State-level
review officials have been deleted.

5. Changes in Subpart F -- State Administration

On July 8, 1992, the Department published final regulations
making certain amendments to EDGAR and conforming changes in
program regulations (57 FR 30328). That regulatory action
removed the State complaint procedures (Sec. 76.780-76.782) from
EDGAR and amended Part 300 by adding identical requirements in
Sec. 300.670-300.672. These final regulations make changes, as
described below, to those regulations based on the comments
received on the August 19, 1991 NPRM. The State complaint
procedures also are renumbered as Sec. 300.660-300.662.

o Proposed Sec. 300.660 (Adoption of State complaint procedures)
has
been revised to clarify that, while the State complaint
procedures must provide for filing complaints with the SEA, the
SEA may expand its procedures to provide for

(1) the filing of a
complaint directly with a public agency in lieu of the SEA; and

(2) the right to have the SEA review the public agency's decision
on the complaint.

o Proposed Sec. 300.661 ("Minimum State complaint procedures")
has
been revised to clarify that a public agency also has the right
to request Secretarial review.



C. Changes made to Part B by the 1991 Amendments

The primary purpose of the 1991 Amendments was to amend and
reauthorize Part H of the Act (the Infants and Toddlers with
Disabilities program). However, the 1991 Amendments also
included revisions to other parts of the Act, including Part B.

The following discussion includes descriptions of the revisions
to Part B made by the 1991 Amendments that have been incorporated
into these final regulations:

1. Permitting children, aged 3-5, with developmental delays to
be included by States in the definition of "children with
disabilities." The 1991 Amendments revised the definition of
"children with disabilities" in section 602(a)(1) of the IDEA.
In accordance with that change, Sec. 300.7(b)(2) provides that
the
term "children with disabilities" may, at a State's discretion,
include children, aged 3-5,

"(i) who are experiencing
developmental delays...and

(ii) who, for that reason, need
special education and related services." (Throughout this
document, age ranges referred to in the text are inclusive.) The
legislative history of the 1991 Amendments makes clear that the
purpose of permitting a State to include these children in its
definition of children with disabilities, "is not to expand or
diminish the population of children eligible under Part B, but
rather to provide a State with the discretion to ensure that all
eligible preschoolers are served and that children are not
inappropriately labeled." (House Report No. 102-198, 4 (1991);
Senate Report No. 102-84, 15 (1991).)

The legislative history further clarifies that, although the 1991
revision to the definition of "children with disabilities" in
section 602(a)(1) of the IDEA is comparable to a component of the
Part H definition of "infants and toddlers with disabilities,"
the amendment should not be construed as requiring a State to use
the same criteria for children aged 3-5 as it uses for infants
and toddlers. A State may develop different or more stringent
criteria for children aged 3-5, inclusive, than it uses for
infants and toddlers so long as the criteria do not deny
eligibility to a child who would otherwise be eligible under
other categories included in section 602(a)(1) of the Act. (House
Report No. 102-198, 4 (1991); Senate Report No. 102-84, 15
(1991).)

2. Transition of individuals from Part H to Part B. The 1991
Amendments added a new provision at section 613(a)(15) that
requires that each State plan set forth policies and procedures
relating to the smooth transition for those individuals
participating in the early intervention program under Part H who
will participate in preschool programs under Part B. This would
include a method of ensuring that when a child turns age three an
IEP or, if consistent with sections 614(a)(5) and 677(d) of the
Act, an individualized family service plan (IFSP) has been
developed and is being implemented by the child's third birthday.
This change is reflected in a new Sec. 300.154.

3. Permitting LEAs to use IFSPs for children aged 3-5.

To assist in the transition of children from the Part H program
to the Part B program, the 1991 Amendments added a provision to
section 614(a)(5) to permit LEAs to use IFSPs, in lieu of IEPs,
for children with disabilities aged 3-5 if consistent with State
policy and with the concurrence of the parents. This change is
reflected in revised Sec. 300.343 of the regulations. The
Secretary
notes that the "content of IFSP" provision in the Part H
regulations (34 CFR 303.344) is more detailed than section 677(d)
of the Act. States are encouraged to implement the requirements
in 34 CFR 303.344 for the IFSPs that they develop and implement
for children aged 3-5.

4. Comprehensive system of personnel development (CSPD).

Consistent with a revision of section 613(a)(3) made by the 1991
Amendments, Sec. 300.380 of the regulations has been amended to
require that a State's CSPD under Part B be consistent with the
CSPD for the Part H program described in Sec. 303.360. (The 1991
Amendments also add a companion provision to the Part H CSPD
provision in section 676(b)(8) of the Act.)

5. State administrative set-aside for small States. The 1991
Amendments revised section 611(c)(2) of the IDEA to increase from
$350,000 to $450,000 the minimum amount that each State may
reserve from its Part B allocation for administrative expenses.
This change is reflected in Sec. 300.620.

6. Part B services for Indian children with disabilities.

The 1991 Amendments significantly revised section 611(f), which
authorizes payments to the Secretary of the Interior under Part B
for the education of certain Indian children with disabilities.
Section 300.709 has been revised in its entirety, consistent with
the new section 611(f)(1) of the IDEA. Section 300.709 now
provides that, subject to meeting the requirements in Sec.
300.260,
the Secretary makes payments to the Secretary of the Interior to
meet the need for assistance for the education of children with
disabilities on reservations, aged 5-21, who are enrolled in
elementary and secondary schools for Indian children operated by
the Secretary of the Interior, and for Indian students aged 3-5
who are enrolled in programs affiliated with Bureau of Indian
Affairs (BIA) schools that are required by the States in which
the schools are located to attain or maintain State accreditation
and which schools had such accreditation before the enactment of
the 1991 Amendments. Previously, the Secretary of the Interior
had been responsible for the education of all Indian children
with disabilities, aged 3-21, on reservations

(1) served by
elementary and secondary schools operated by the Department of
the Interior, and

(2) for whom services were provided through
contract with an Indian tribe or organization prior to FY 1989.
The amount of payment is one percent of the aggregate amount of
funds available to all States for that fiscal year.

In accordance with the new section 611(f)(3) of the IDEA, and in
light of the revised responsibilities of the Secretary of the
Interior for the education of Indian children with disabilities
aged 3-21 as specified in section 611(f)(1) of the IDEA, Sec.
300.260
also has been revised. That section identifies the specific
provisions of sections 612, 613, and 614 of the IDEA that the
Secretary has determined continue to be appropriate to
applications from the Secretary of the Interior. Similarly,
Sec. 300.263 has been revised to reflect the regulatory
requirements
that continue to apply to the Secretary of the Interior in the
implementation of the program supported by Part B.

While the 1991 Amendments limited the responsibilities of the
Secretary of the Interior for the education of Indian children
with disabilities, it expanded the responsibilities of SEAs for
Indian children with disabilities on reservations.
Consistent with the requirements of the new section 611(f)(2) of
the IDEA, Sec. 300.300 (Timelines for FAPE) has been revised by
adding a new paragraph (c) to specify that, with the exception of
children identified in Sec. 300.709(a)(1) and (2), the SEA shall
be
responsible for ensuring that all of the requirements of Part B
are implemented for all children aged 3-21 on reservations.

In addition, in accordance with the new section 611(f)(4) of the
IDEA, a new Sec. 300.710 has been added to provide that the
Secretary
make payments to the Secretary of the Interior to be distributed
to tribes or tribal organizations to provide for the coordination
of assistance for special education and related services for
children with disabilities, aged 3-5, on reservations served by
elementary and secondary schools for Indian children operated or
funded by the Department of the Interior. The amount of the
payment is .25 percent of the aggregate amount of funds available
to all States under this part for that fiscal year. These funds
are to be used for child find, screening, and other procedures
for the early identification of children, aged 3-5, parent
training, and for direct services.

The Secretary believes that those statutory changes resulting
from the 1991 Amendments can be effectively implemented by
incorporation into existing regulations without additional
regulatory guidance. However, if experience in the
implementation of these provisions indicates that additional
regulatory guidance is needed, the Secretary will undertake
additional rulemaking at a future date.


II.

Preschool Grants Program

The Preschool Grants program under section 619 of Part B of the
Act provides additional Federal financial assistance to States
for providing special education and related services to children
with disabilities aged 3-5 and, at a State's discretion, for
providing FAPE to two-year-old children with disabilities who
will reach age three during the school year. The Preschool
Grants regulations in 34 CFR Part 301 establish the
administrative procedures for applying for and distributing
Preschool Grants funds.

The substantive rights and protections established under Part B
of the Act and its implementing regulations at 34 CFR Part 300
apply to 3-5 year old children with disabilities. Therefore,
these rights and protections, which include the right to FAPE,
placement in the least restrictive environment, and the
availability of due process procedures, are not repeated in the
Part 301 regulations.

The 1991 Amendments included several revisions to section 619.
The following is a summary of those revisions:

o The 1991 Amendments expanded the age range for which SEAs and
LEAs may use Preschool Grants funds to include two-year-old
children with disabilities who will reach age three during the
school year, whether or not those children are receiving, or have
received, services under Part H of the Act. These children are
entitled to receive FAPE.

The use of Preschool Grants funds to provide FAPE to two-year-old
children with disabilities is at a State's discretion
and must be consistent with State policy. This is not a
requirement to provide FAPE to all two-year-old children with
disabilities who will reach age three during the school year.
Rather, this provision increases States' options for use of
Preschool Grants funds to meet the needs of children with
disabilities and their families during the transition from early
intervention services under Part H of the Act to preschool
special education under Part B of the Act. Although children
below age 3 cannot be included in the annual Part B child count,
States are permitted to use their Part B funds to serve these
children.

o Part H of the Act does not apply to any two-year-old child with
disabilities receiving FAPE, in accordance with Part B of the
Act, with Preschool Grants funds. However, Part H of the Act
continues to apply to all other two-year-old children with
disabilities, including those receiving FAPE with other sources
of funds, such as Part B funds under section 611 of the Act.

These statutory amendments are incorporated into these final
regulations in Sec. 301.1, 301.3, 301.6, 301.10, and 301.30.
Waiver of Rulemaking
In accordance with section 431(b)(2)(A) of the General Education
Provisions Act (20 U.S.C. 1232(b)(2)(A)) and the Administrative
Procedure Act (5 U.S.C. 553), it is the practice of the Secretary
to offer interested parties the opportunity to comment on all
changes proposed to be made in the Department's regulations.
However, since the additional changes made in these final
regulations that were not included in the NPRM published for
public comment merely incorporate statutory amendments and do not
establish new substantive policy, further public comment could
have no effect on the content of the final regulations.
Therefore, the Secretary has determined under 5 U.S.C. 553(b)(B)
that proposed rulemaking on these changes is unnecessary and
contrary to public interest.
Invitation to comment on provisions added to Part B by the
1991 Amendments

Although the Secretary publishes these regulations as final, the
Secretary invites comments on whether additional guidance is
required with respect to the regulatory changes made to Part 300
and described above that reflect statutory changes made by the
1991 Amendments. In addition, the Secretary invites comments on
whether other regulatory changes are desirable to implement the
provisions of the 1991 Amendments relating to the transition of
children from the Part H program to the Part B program.

Interested parties may send comments to Ms. Lucille Sleger at the
address given at the beginning of this document until November
30, 1992.

All comments submitted in response to this document will be
available for public inspection, during and after the comment
period, in Room 3615, 300 C Street, S.W., Washington,
D.C., between the hours of 8:30 a.m and 4:00 p.m., Monday through
Friday of each week, except Federal holidays.


Executive Order 12291

These regulations have been reviewed in accordance with Executive
Order 12291. They are not classified as major because they do
not meet the criteria for major regulations established in the
order.
Paperwork Reduction Act of 1980

The following sections contain information collection
requirements: Sec. 300.110; Sec. 300.121-300.123; Sec.
300.125-300.134;
Sec. 300.136; Sec. 300.138-300.141; Sec. 300.144; Sec. 300.146;
Sec. 300.148;
Sec. 300.149; Sec. 300.152; Sec. 300.153; Sec. 300.180; Sec.
300.192; Sec. 300.220;
Sec. 300.222-300.227; Sec. 300.231; Sec. 300.235; Sec. 300.238;
Sec. 300.240;
Sec. 300.280; Sec. 300.281; Sec. 300.284; Sec. 300.341; Sec.
300.343; Sec. 300.345;
Sec. 300.346: Sec. 300.349; Sec. 300.380-300.383; Sec. 300.402;
Sec. 300.482;
Sec. 300.483; Sec. 300.505; Sec. 300.510; Sec. 300.512; Sec.
300.532; Sec. 300.533;
Sec. 300.543; Sec. 300.561-300.563; Sec. 300.565; Sec. 300.569;
Sec. 300.571;
Sec. 300.572; Sec. 300.574; Sec. 300.575; Sec. 300.589; Sec.
300.600; Sec. 300.653;
Sec. 300.660-300.662; Sec. 300.750; Sec. 300.751; and Sec.
300.754. As required
by the Paperwork Reduction Act of 1980, the Department of
Education will submit a copy of these sections to the Office of
Management and Budget (OMB) for its review. (44 U.S.C. 3504(h))

The 50 States, the District of Columbia, Puerto Rico, 7
territories, and the Department of the Interior are eligible to
apply for grants under this part. The Department needs and uses
information submitted by these entities to determine whether they
meet the regulatory requirements listed above. The 60 eligible
entities under this program submit triennial State plans in order
to receive Part B grant awards. The annual public reporting
burden for this information collection for the year of an
entity's submission is estimated at 29 hours, including the time
for gathering the data needed, and completing and reviewing the
collection of information.

Organizations and individuals desiring to submit comments on the
information collection requirements should direct them to the
Office of Information and Regulatory Affairs, OMB, Room 3002, New
Executive Office Building, Washington, D.C. 20503; Attention:
Daniel J. Chenok.
Intergovernmental Review

This program is subject to the requirements of Executive Order
12372 and the regulations in 34 CFR Part 79. The objective of
the Executive order is to foster an intergovernmental partnership
and a strengthened federalism by relying on the processes
developed by State and local governments for coordination and
review of proposed Federal financial assistance.

In accordance with the order, this document is intended to
provide early notification of the Department's specific plans and
actions for this program.

List of Subjects in 34 CFR Part 300
Administrative practice and procedures, Education, Education of
individuals with disabilities, Grant programs--education,
Privacy, Private schools, Reporting and record keeping
requirements.


List of Subjects in 34 CFR Part 301
Education, Education of children with disabilities, Grant
programs--education, Reporting and record keeping requirements.
Dated:
Lamar Alexander,
Secretary of Education.
(Catalog of Federal Domestic Assistance number 84.027, Assistance
to States for Education of Children with Disabilities; 84. ,
Preschool Grants Program)

The Secretary amends Title 34 of the Code of Federal Regulations
by revising Parts 300 and amending 301 as follows:

1. Part 300 is revised to read as follows:

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



$pg
Subpart A--General


PURPOSE, APPLICABILITY, AND REGULATIONS
THAT APPLY TO THIS PROGRAM

Sec. 300.1 Purpose.

The purpose of this part is --

(a) To ensure that all children with disabilities have available
to them a free appropriate public education that includes special
education and related services to meet their unique needs;

(b) To ensure that the rights of children with disabilities
and their parents are protected;

(c) To assist States and localities to provide for the
education of all children with disabilities; and

(d) To assess and ensure the effectiveness of efforts to
educate those children.
(Authority: 20 U.S.C. 1401 Note)

Sec. 300.2 Applicability to State, local, and private agencies.

(a) States. This part applies to each State that receives
payments under Part B of the Act.

(b) Public agencies within the State. The State plan is
submitted by the State educational agency on behalf of the State
as a whole. Therefore, the provisions of this part apply to all
political subdivisions of the State that are involved in the
education of children with disabilities. These would include:

(1) The State educational agency;

(2) Local educational agencies and intermediate educational
units;

(3) Other State agencies and schools (such as Departments
of Mental Health and Welfare and State schools for students with
deafness or students with blindness); and

(4) State correctional facilities.

(c) Private schools and facilities. Each public agency in
the State is responsible for ensuring that the rights and
protections under this part are given to children referred to or
placed in private schools and facilities by that public agency.

(See Sec. 300.400-300.402)
(Authority: 20 U.S.C. 1412(1), (6); 1413(a); 1413(a)(4)(B))

Note: The requirements of this part are binding on each
public agency that has direct or delegated authority to provide
special education and related services in a State that receives
funds under Part B of the Act, regardless of whether that agency
is receiving funds under Part B.

Sec. 300.3 Regulations that apply.

The following regulations apply to this program:

(a) 34 CFR Part 76 (State-Administered Programs) except for
Sec. 76.780-76.782.

(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 (Governmentwide Debarment and Suspension
(Nonprocurement) and Governmentwide Requirements for Drug-Free
Workplace (Grants)).

(h) 34 CFR Part 86 (Drug-Free Schools and Campuses).

(i) The regulations in this part -- 34 CFR Part 300 (Assistance
to States for Education of Children with Disabilities).
(Authority: 20 U.S.C. 1221e-3(a)(1))

DEFINITIONS

Note 1: Definitions of terms that are used throughout these
regulations are included in this subpart. Other terms are defined
in the specific subparts in which they are used. Below is a list
of those terms and the specific sections in which they are
defined:

Appropriate professional requirements in the State
(Sec. 300.153(a)(1))

Average per pupil expenditure in public elementary and secondary
schools in the United States (Sec. 300.701(c))

Consent (Sec. 300.500)

Destruction (Sec. 300.560)

Direct services (Sec. 300.370(b)(1))

Education records (Sec. 300.560)

Evaluation (Sec. 300.500)

First priority children (Sec. 300.320(a))

Highest requirements in the State applicable to a specific
profession or discipline (Sec. 300.153(a)(2))

Independent educational evaluation (Sec. 300.503(a)(3)(i))

Individualized education program (Sec. 300.340)

Participating agency, as used in the IEP requirements in
Sec. 300.346 and 300.347 (Sec. 300.340(b))

Participating agency, as used in the confidentiality requirements
in Sec. 300.560-300.576 (Sec. 300.560)

Party or parties (Sec. 300.584(a))

Personally identifiable (Sec. 300.500)

Private school children with disabilities (Sec. 300.450)

Profession or discipline (Sec. 300.153(a)(3))

Public expense (Sec. 300.503(a)(3)(ii))

Second priority children (Sec. 300.320(b))

Special definition of "State" (Sec. 300.700)
State-approved or recognized certification, licensing,
registration, or other comparable requirements (Sec.
300.153(a)(4))

Support services (Sec. 300.370(b)(2))

Note 2: Below are abbreviations for selected terms that are used
throughout these regulations:

"FAPE" means "free appropriate public education."

"IEP" means "individualized education program."

"IEU" means "intermediate educational unit."

"LEA" means "local educational agency."

"LRE" means "least restrictive environment."

"SEA" means "State educational agency."

As appropriate, each abbreviation is used interchangeably with
its nonabbreviated term.
Sec. 300.4 Act.

As used in this part, "Act" means the Individuals with
Disabilities Education Act, formerly the Education of the
Handicapped Act.
(Authority: 20 U.S.C. 1400)

Sec. 300.5 Assistive technology device.

As used in this part, "assistive technology device" means any
item, piece of equipment, or product system, whether acquired
commercially off the shelf, modified, or customized, that is used
to increase, maintain, or improve the functional capabilities of
children with disabilities.
(Authority: 20 U.S.C. 1401(a)(25))

Sec. 300.6 Assistive technology service.

As used in this part, "assistive technology service" means any
service that directly assists a child with a disability in the
selection, acquisition, or use of an assistive technology device.
The term includes --

(a) The evaluation of the needs of a child with a disability,
including a functional evaluation of the child in the child's
customary environment;

(b) Purchasing, leasing, or otherwise providing for the
acquisition of assistive technology devices by children with
disabilities;

(c) Selecting, designing, fitting, customizing, adapting,
applying, retaining, 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 children with disabilities.
(Authority: 20 U.S.C. 1401(a)(26))

Note: The definitions of "assistive technology device" and
"assistive technology service" used in this part are taken
directly from section 602(a)(25)-(26) of the Act, but in
accordance with Part B, the statutory reference to "individual
with a disability" has been replaced with "child with a
disability." The Act's definitions of "assistive technology
device" and "assistive technology service" incorporate verbatim
the definitions of these terms used in the Technology-Related
Assistance for Individuals with Disabilities Act of 1988.

Sec. 300.7 Children with disabilities.

(a)(1) As used in this part, the term "children with
disabilities" means those children evaluated in accordance with
Sec. 300.530-300.534 as having mental retardation, hearing
impairments including deafness, speech or language impairments,
visual impairments including blindness, serious emotional
disturbance, orthopedic impairments, autism, traumatic brain
injury, other health impairments, specific learning disabilities,
deaf-blindness, or multiple disabilities, and who because of
those impairments need special education and related services.

(2) The term "children with disabilities" for children aged 3
through 5 may, at a State's discretion, include children --

(i) Who are 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

(ii) Who, for that reason, need special education and related
services.

(b) The terms used in this definition are defined as follows:
(1) "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 a serious emotional disturbance, as defined in
paragraph (b)(9) of this section.

(2) "Deaf-blindness" means concomitant hearing and visual
impairments, the combination of which causes such severe
communication and other developmental and educational problems
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) "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.

(5) "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.

(6) "Multiple disabilities" means concomitant impairments
(such as mental retardation-blindness, mental retardation-
orthopedic impairment, etc.), the combination of which causes
such severe educational problems that they cannot be accommodated
in special education programs solely for one of the impairments.
The term does not include deaf-blindness.

(7) "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).

(8) "Other health impairment" means having limited
strength, vitality or alertness, due to chronic or acute health
problems such as a heart condition, tuberculosis, rheumatic
fever, nephritis, asthma, sickle cell anemia, hemophilia,
epilepsy, lead poisoning, leukemia, or diabetes that adversely
affects a child's educational performance.

(9) "Serious 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;
or

(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 a serious emotional disturbance.

(10) "Specific learning disability" 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. The term
includes such conditions as perceptual disabilities, brain
injury, minimal brain dysfunction, dyslexia, and developmental
aphasia. The term does not apply to children who have 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 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(a)(1))

Note: If a child manifests characteristics of the disability
category "autism" after age 3, that child still could be
diagnosed as having "autism" if the criteria in paragraph (b)(1)
of this section are satisfied.

Sec. 300.8 Free appropriate public education.

As used in this part, the term "free appropriate public
education" 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 involved; and

(d) Are provided in conformity with an IEP that meets the
requirements of Sec. 300.340-300.350.
(Authority: 20 U.S.C. 1401(a)(18))

Sec. 300.9 Include.

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. 1417(b))

Sec. 300.10 Intermediate educational unit.

As used in this part, the term "intermediate educational
unit" means any public authority, other than an LEA, that --

(a) Is under the general supervision of an SEA;

(b) Is established by State law for the purpose of
providing free public education on a regional basis; and

(c) Provides special education and related services to
children with disabilities within that State.
(Authority: 20 U.S.C. 1401(a)(23))

Sec. 300.11 Local educational agency.

(a) [Reserved]

(b) For the purposes of this part, the term "local
educational agency" also includes intermediate educational units.
(Authority: 20 U.S.C. 1401(a)(8))

Sec. 300.12 Native language.

As used in this part, the term "native language" has the
meaning given that term by section 703(a)(2) of the Bilingual
Education Act, which provides as follows:
The term "native language," when used with reference to an
individual of limited English proficiency, means the language
normally used by that individual, or in the case of a child, the
language normally used by the parents of the child.
(Authority: 20 U.S.C. 3283(a)(2); 1401(a)(22))

Note: Section 602(a)(22) of the Act states that the term
"native language" has the same meaning as the definition from
section 703(a)(2) of the Bilingual Education Act. (The term is
used in the prior notice and evaluation sections under
Sec. 300.505(b)(2) and Sec. 300.532(a)(1).) In using the term,
the Act
does not prevent the following means of communication:

(1) In all direct contact with a child (including
evaluation of the child), communication would be in the language
normally used by the child and not that of the parents, if there
is a difference between the two.

(2) For individuals with deafness or blindness, or for
individuals with no written language, the mode of communication
would be that normally used by the individual (such as sign
language, braille, or oral communication).

Sec. 300.13 Parent.

As used in this part, the term "parent" means a parent, a
guardian, a person acting as a parent of a child, or a surrogate
parent who has been appointed in accordance with Sec. 300.514.
The
term does not include the State if the child is a ward of the
State.
(Authority: 20 U.S.C. 1415)

Note: The term "parent" is defined to include persons
acting in the place of a parent, such as a grandmother or
stepparent with whom a child lives, as well as persons who are
legally responsible for a child's welfare.
Sec. 300.14 Public agency.

As used in this part, the term "public agency" includes the
SEA, LEAs, IEUs, and any other political subdivisions of the
State that are responsible for providing education to children
with disabilities.
(Authority: 20 U.S.C. 1412(2)(B); 1412(6); 1413(a))

Sec. 300.15 Qualified.

As used in this part, the term "qualified" means that a
person has met SEA approved or recognized certification,
licensing, registration, or other comparable requirements that
apply to the area in which he or she is providing special
education or related services.
(Authority: 20 U.S.C. 1417(b))

Sec. 300.16 Related services.

(a) 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
pathology and audiology, psychological services, physical and
occupational therapy, recreation, including therapeutic
recreation, early identification and assessment of disabilities
in children, counseling services, including rehabilitation
counseling, 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) 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 pupils, parents, and
teachers regarding hearing loss; and

(vi) Determination of the child's need 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" includes --

(i) Improving, developing or restoring functions impaired
or lost through illness, injury, or deprivation;

(ii) Improving ability to perform tasks for independent
functioning when functions are impaired or lost; and

(iii) Preventing, through early intervention, initial or
further impairment or loss of function.

(6) "Parent counseling and training" means assisting
parents in understanding the special needs of their child and
providing parents with information about child development.

(7) "Physical therapy" means services provided by a
qualified physical therapist.

(8) "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; and

(v) Planning and managing a program of psychological
services, including psychological counseling for children and
parents.

(9) "Recreation" includes --

(i) Assessment of leisure function;
(ii) Therapeutic recreation services;

(iii) Recreation programs in schools and community
agencies; and

(iv) Leisure education.

(10) "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
students with disabilities by vocational rehabilitation programs
funded under the Rehabilitation Act of 1973, as amended.

(11) "School health services" means services provided by a
qualified school nurse or other qualified person.

(12) "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 with those problems in a child's living situation
(home, school, and community) that affect the child's adjustment
in school; and

(iv) Mobilizing school and community resources to enable the
child to learn as effectively as possible in his or her
educational program.

(13) "Speech pathology" 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.

(14) "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(a)(17))

Note: With respect to related services, the Senate Report
states:
The Committee bill provides a definition of related
services, making clear that all such related services may not be
required for each individual child and that such term includes
early identification and assessment of handicapping conditions
and the provision of services to minimize the effects of such
conditions.

(S. Rep. No. 94-168, p. 12 (1975))

The list of related services is not exhaustive and may
include other developmental, corrective, or supportive services
(such as artistic and cultural programs, and art, music, and
dance therapy), if they are required to assist a child with a
disability to benefit from special education.
There are certain kinds of services that might be provided
by persons from varying professional backgrounds and with a
variety of operational titles, depending upon requirements in
individual States. For example, counseling services might be
provided by social workers, psychologists, or guidance
counselors, and psychological testing might be done by qualified
psychological examiners, psychometrists, or psychologists,
depending upon State standards.
Each related service defined under this part may include
appropriate administrative and supervisory activities that are
necessary for program planning, management, and evaluation.

Sec. 300.17 Special education.

(a)(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 speech pathology, or any other
related service, if the service consists of specially designed
instruction, at no cost to the parents, to meet the unique needs
of a child with a disability, and is considered special education
rather than a related service under State standards.

(3) Vocational education means organized educational programs
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(16))

(b) 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" is defined as follows:

(i) The term 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).

(ii) The term includes special physical education, adaptive
physical education, movement education, and motor development.
(Authority: 20 U.S.C. 1401(a)(16))

(3) "Vocational education" means organized educational
programs offering a sequence of courses that are directly related
to the preparation of individuals in paid or unpaid employment in
current or emerging occupations requiring other than a
baccalaureate or advanced degree. Such programs shall include
competency-based applied learning that contributes to an
individual's academic knowledge, higher-order reasoning, and
problem-solving skills, work attitudes, general employability
skills, and the occupation-specific skills necessary for
economic independence as a productive and contributing member of
society. Such term also includes applied technology education.
(Authority: 20 U.S.C. 1401(16))

Note 1: The definition of special education is a
particularly important one under these regulations, since a child
does not have a disability under this part unless he or she needs
special education. (See the definition of children with
disabilities in Sec. 300.7.) The definition of related services
(Sec. 300.16) also depends on this definition, since a related
service must be necessary for a child to benefit from special
education. Therefore, if a child does not need special
education, there can be no related services, and the child is not
a child with a disability and is therefore not covered under the
Act.
Note 2: The above definition of vocational education is taken
from the Vocational Education Act of 1963, as amended by Public
Law 94-482. 
Under that act, "vocational education" includes industrial arts,
and
consumer, and homemaking education programs.

Sec. 300.18 Transition services.

(a) As used in this part, "transition services" means a
coordinated set of activities for a student, 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.

(b) The coordinated set of activities described in paragraph (a)
of this section must --

(1) Be based on the individual student's needs, taking into
account the student's preferences and interests; and

(2) Include --

(i) Instruction;

(ii) Community experiences;

(iii) The development of employment and other post-school adult
living objectives; and

(iv) If appropriate, acquisition of daily living skills and
functional vocational evaluation.
(Authority: 20 U.S.C. 1401(a)(19))

Note: Transition services for students with disabilities may be
special education, if they are provided as specially designed
instruction, or related services, if they are required to assist
a student with a disability to benefit from special education.
The list of activities in paragraph (b) is not
intended to be exhaustive.


Subpart B -- State Plans and Local Educational
Agency Applications


STATE PLANS -- GENERAL

Sec. 300.110 Condition of assistance.

In order to receive funds under Part B of the Act for any
fiscal year, a State must submit a State plan to the Secretary
through its SEA, which plan shall be effective for a period of 3
fiscal years.
(Authority: 20 U.S.C. 1231g, 1412, 1413)

Sec. 300.111 Contents of plan.

Each State plan must contain the provisions required in
Sec. 300.121-300.154.
(Authority: 20 U.S.C. 1412, 1413)


STATE PLANS -- CONTENTS

Sec. 300.121 Right to a free appropriate public education.

(a) Each State plan must include information that shows
that the State has in effect a policy that ensures that all
children with disabilities have the right to FAPE within the age
ranges and timelines under Sec. 300.122.

(b) The information must include a copy of each State
statute, court order, State Attorney General opinion, and other
State documents that show the source of the policy.

(c) The information must show that the policy --

(1) Applies to all public agencies in the State;

(2) Applies to all children with disabilities;

(3) Implements the priorities established under Sec. 300.320-
300.324; and

(4) Establishes timelines for implementing the policy, in
accordance with Sec. 300.122.
(Authority: 20 U.S.C. 1412(1), (2)(B), (6); 1413(a)(1))

Sec. 300.122 Timelines and ages for free appropriate public
education.

(a) General. Each State plan must include in detail the
policies and procedures that the State will undertake or has
undertaken in order to ensure that FAPE is available for all
children with disabilities aged 3 through 18 within the State not
later than September 1, 1978, and for all children with
disabilities aged 3 through 21 within the State not later than
September 1, 1980.

(b) Documents relating to timelines. Each State plan must
include a copy of each State statute, court order, Attorney
General decision, and other State documents that demonstrate that
the State has established timelines in accordance with paragraph
(a) of this section.

(c) Exception. The requirement in paragraph (a) of this
section does not apply to a State with respect to children with
disabilities aged 3, 4, 5, 18, 19, 20, or 21 to the extent that
the requirement would be inconsistent with State law or practice,
or the order of any court, respecting public education for one or
more of those age groups in the State.

(d) Documents relating to exceptions. Each State plan
must --

(1) Describe in detail the extent that the exception in
paragraph (c) of this section applies to the State; and

(2) Include a copy of each State law, court order, and
other documents that provide a basis for the exception.
(Authority: 20 U.S.C. 1412(2)(B))

Sec. 300.123 Full educational opportunity goal.

Each State plan must include in detail the policies and
procedures that the State will undertake, or has undertaken, in
order to ensure that the State has a goal of providing full
educational opportunity to all children with disabilities aged
birth through 21.
(Authority: 20 U.S.C. 1412(2)(A))

Sec. 300.124 [Reserved]

Sec. 300.125 Full educational opportunity goal -- timetable.

Each State plan must contain a detailed timetable for
accomplishing the goal of providing full educational opportunity
for all children with disabilities.
(Authority: 20 U.S.C. 1412(2)(A))

Sec. 300.126 Full educational opportunity goal -- facilities,
personnel, and services.

Each State plan must include a description of the kind and number
of facilities, personnel, and services necessary throughout the
State to meet the goal of providing full educational opportunity
for all children with disabilities.
(Authority: 20 U.S.C. 1412(2)(A))

Sec. 300.127 Priorities.

Each State plan must include information that shows that --

(a) The State has established priorities that meet the
requirements of Sec. 300.320-300.324;

(b) The State priorities meet the timelines under Sec. 300.122;
and

(c) The State has made progress in meeting those timelines.
(Authority: 20 U.S.C. 1412(3))

Sec. 300.128 Identification, location, and evaluation of children
with disabilities.

(a) General requirement. Each State plan must include in
detail the policies and procedures that the State will undertake,
or has undertaken, to ensure that --

(1) All children with disabilities, regardless of the
severity of their disability, and who are in need of special
education and related services are identified, located, and
evaluated; and

(2) A practical method is developed and implemented to
determine which children are currently receiving needed special
education and related services and which children are not
currently receiving needed special education and related
services.

(b) Information. Each State plan must:

(1) Designate 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) Name each agency that participates in the planning and
implementation and describe the nature and extent of its
participation.

(3) Describe the extent that --

(i) The activities described in paragraph (a) of this
section have been achieved under the current State plan; and

(ii) The resources named for these activities in that plan
have been used.

(4) Describe each type of activity to be carried out during
the next school year, including the role of the agency named
under paragraph (b)(1) of this section, timelines for completing
those activities, resources that will be used, and expected
outcomes.

(5) Describe 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.

(6) Describe the method the State uses to determine which
children are currently receiving special education and related
services and which children are not receiving special education
and related services.
(Authority: 20 U.S.C. 1412(2)(C))

Note 1: The State is responsible for ensuring that all
children with disabilities are identified, located, and
evaluated, including children in all public and private agencies
and institutions in the State. Collection and use of data are
subject to the confidentiality requirements of Sec. 300.560-
300.576.

Note 2: Under both Parts B and H of the Act, States are
responsible for identifying, locating, and evaluating infants
and toddlers from birth through 2 years of age who have
disabilities or who are suspected of having disabilities. In
States where the SEA and the State's lead agency for the Part H
program are different and the Part H lead agency will be
participating in the child find activities described in paragraph
(a) of this section, the nature and extent of the Part H lead
agency's participation must, under paragraph (b)(2) of this
section, be included in the State plan. With the SEA's
agreement, the Part H lead agency's participation may include the
actual implementation of child find activities for infants and
toddlers. The use of an interagency agreement or other mechanism
for providing for the Part H lead agency's participation would
not alter or diminish the responsibility of the SEA to ensure
compliance with all child find requirements, including the
requirement in paragraph (a)(1) of this section that all children
with disabilities who are in need of special education and
related services are evaluated.

Sec. 300.129 Confidentiality of personally identifiable
information.

(a) Each State plan must include in detail the policies and
procedures that the State will undertake, or has undertaken, in
order to ensure the protection of the confidentiality of any
personally identifiable information collected, used, or
maintained under this part.

(b) The Secretary shall use the criteria in Sec. 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(2)(D); 1417(c))

Note: The confidentiality regulations were published in the
Federal Register in final form on February 27, 1976 (41 FR 8603-
8610), and met the requirements of Part B of the Act. Those
regulations are incorporated in Sec. 300.560-300.576.

Sec. 300.130 Individualized education programs.

(a) Each State plan must include information that shows that
each public agency in the State maintains records of the IEP for
each child with a disabilities, and each public agency
establishes, reviews, and revises each program as provided in
Sec. 300.340-300.350.

(b) Each State plan 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 programs.
(Authority: 20 U.S.C. 1412(4), 1413(a)(1))

Sec. 300.131 Procedural safeguards.

Each State plan must include procedural safeguards that
ensure that the requirements of Sec. 300.500-300.514 are met.
(Authority: 20 U.S.C. 1412(5)(A))

Sec. 300.132 Least restrictive environment.

(a) Each State plan must include procedures that ensure
that the requirements of Sec. 300.550-300.556 are met.

(b) Each State plan must include the following information:

(1) The number of children with disabilities in the State,
within each disability category, who are participating in regular
education programs, consistent with Sec. 300.550-300.556.

(2) The number of children with disabilities who are in
separate classes or separate school facilities, or who are
otherwise removed from the regular education environment.
(Authority: 20 U.S.C. 1412(5)(B))

Sec. 300.133 Protection in evaluation procedures.

Each State plan must include procedures that ensure that the
requirements of Sec. 300.530-300.534 are met.
(Authority: 20 U.S.C. 1412(5)(C))

Sec. 300.134 Responsibility of State educational agency for all
educational programs.

(a) Each State plan must include information that shows
that the requirements of Sec. 300.600 are met.

(b) The information 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(6))

Sec. 300.135 [Reserved]

Sec. 300.136 Implementation procedures -- State educational
agency.

Each State plan must describe the procedures the SEA 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(6))

Sec. 300.137 Procedures for consultation.

Each State plan must include an assurance that in carrying
out the requirements of section 612 of the Act, procedures are
established for consultation with individuals involved in or
concerned with the education of children with disabilities,
including individuals with disabilities and parents of children
with disabilities.
(Authority: 20 U.S.C. 1412(7)(A))

Sec. 300.138 Other Federal programs.

Each State plan must provide that programs and procedures
are established to ensure that funds received by the State or any
public agency in the State under any other Federal program,
including Subpart 2 of Part D of Chapter 1 of Title I of the
Elementary and Secondary Education Act of 1965, under which there
is specific authority for assistance for the education of
children with disabilities, are used by the State, or any public
agency in the State, only in a manner consistent with the goal of
providing FAPE for all children with disabilities, except that
nothing in this section limits the specific requirements of the
laws governing those Federal programs.
(Authority: 20 U.S.C. 1413(a)(2))

Sec. 300.139 Comprehensive system of personnel development.

Each State plan must include the procedures required under
Sec. 300.380-300.383.
(Authority: 20 U.S.C. 1413(a)(3))

Sec. 300.140 Private schools.

Each State plan must include policies and procedures that
ensure that the requirements of Sec. 300.400-300.403 and Sec.
300.450-
300.452 are met.
(Authority: 20 U.S.C. 1413(a)(4))

Sec. 300.141 Recovery of funds for misclassified children.

Each State plan must include 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. 1413(a)(5))

Sec. 300.142-300.143 [Reserved]

Sec. 300.144 Hearing on application.

Each State plan must include procedures to ensure that the
SEA does not take any final action with respect to an application
submitted by an LEA before giving the LEA reasonable notice and
an opportunity for a hearing under Sec. 76.401(d) of this title.
(Authority: 20 U.S.C. 1413(a)(8))

Sec. 300.145 Prohibition of commingling.

Each State plan must provide assurance satisfactory to the
Secretary that funds provided under Part B of the Act are not
commingled with State funds.
(Authority: 20 U.S.C. 1413(a)(9))

Note: This assurance 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 Sec. 76.702 (Fiscal control and fund accounting
procedures).)

Sec. 300.146 Annual evaluation.

Each State plan must include procedures for evaluation at
least annually of the effectiveness of programs in meeting the
educational needs of children with disabilities, including
evaluation of IEPs.
(Authority: 20 U.S.C. 1413(a)(11))

Sec. 300.147 State advisory panel.

Each State plan must provide that the requirements of
Sec. 300.650-300.653 are met.
(Authority: 20 U.S.C. 1413(a)(12))

Sec. 300.148 Policies and procedures for use of Part B funds.

Each State plan must set forth 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,
with particular attention given to sections 611(b), 611(c),
611(d), 612(2), and 612(3) of the Act.
(Authority: 20 U.S.C. 1413(a)(1))
Sec. 300.149 Description of use of Part B funds.

(a) State allocation. Each State plan must include the
following information about the State's use of funds under
Sec. 300.370 and Sec. 300.620:

(1) A list of administrative positions, and a description
of duties for each person whose salary is paid in whole or in
part with those funds.

(2) For each position, the percentage of salary paid with
those funds.

(3) A description of each administrative activity the SEA
will carry out during the next school year with those funds.

(4) A description of each direct service and each support
service that the SEA will provide during the next period covered
by the State plan with those funds, and the activities the State
advisory panel will undertake during that period with those
funds.

(b) Local educational agency allocation. Each State plan
must include --

(1) An estimate of the number and percent of LEAs in the
State that will receive an allocation under this part (other than
LEAs that submit a consolidated application);

(2) An estimate of the number of LEAs that will receive an
allocation under a consolidated application;

(3) An estimate of the number of consolidated applications
and the average number of LEAs per application; and

(4) A description of direct services that the SEA will
provide under Sec. 300.360.
(Authority: 20 U.S.C.1412(6))

Sec. 300.150 State-level nonsupplanting.

Each State plan must provide assurance satisfactory to the
Secretary that funds provided under this part will be used so as
to supplement and increase the level of Federal (other than funds
available under this part), 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 this part and in no case to
supplant those Federal (other than funds available under this
part), State, and local funds unless a waiver is granted in
accordance with Sec. 300.589.
(Authority: 20 U.S.C. 1413(a)(9))

Note: This requirement is distinct from the LEA
nonsupplanting provision already contained in these regulations
at Sec. 300.230. Under this State-level provision, the State must
assure that Part B funds distributed to LEAs and IEUs will be
used to supplement and not supplant other Federal, State, and
local funds (including funds not under the control of educational
agencies) that would have been expended for special education and
related services provided to children with disabilities in the
absence of the Part B funds. The portion of Part B funds that
are not distributed to LEAs or IEUs under the statutory formula
(20 U.S.C. 1411(d)) are not subject to this nonsupplanting
provision. See 20 U.S.C. 1411(c)(3). States may not permit LEAs
or IEUs to use Part B funds to satisfy a financial commitment for
services that would have been paid for by a health or other
agency pursuant to policy or practice but for the fact that these
services are now included in the IEPs of children with
disabilities.
(H. R. Rep. No. 860, 99th Cong., 21-22 (1986))

Sec. 300.151 Additional information if the State educational
agency
provides direct services.

If an SEA provides FAPE for children with disabilities or
provides them with direct services, its State plan must include
the information required under Sec. 300.226, 300.227, 300.231,
and
300.235.
(Authority: 20 U.S.C. 1413(b))

Sec. 300.152 Interagency agreements.

(a) Each State plan must set forth policies and procedures
for developing and implementing interagency agreements between --

(1) The SEA; and

(2) All other State and local agencies that provide or pay
for services required under this part for children with
disabilities.

(b) The policies and procedures referred to in paragraph
(a) of this section must --

(1) Describe the role that each of those agencies plays in
providing or paying for services required under this part for
children with disabilities; and

(2) Provide for the development and implementation of
interagency agreements that --

(i) Define the financial responsibility of each agency for
providing children with disabilities with FAPE;

(ii) Establish procedures for resolving interagency
disputes among agencies that are parties to the agreements; and

(iii) Establish procedures under which LEAs may initiate
proceedings in order to secure reimbursement from agencies that
are parties to the agreements or otherwise implement the
provisions of the agreements.
(Authority: 20 U.S.C. 1413(a)(13))

Sec. 300.153 Personnel standards.

(a) 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 this part
to children and youth with disabilities who are served by State,
local, and private agencies (see Sec. 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 this part;

(ii) Has been established or designated by the State; and

(iii) Has a required scope of responsibility and degree of
supervision.

(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)(1) Each State plan must include 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.

(2) The policies and procedures required in paragraph
(b)(1) 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.

(c) 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 plan must include 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)(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) 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 and youth with disabilities must be considered.
(Authority: 20 U.S.C. 1413(a)(14))

Note: The regulations require that the State use its own
existing highest requirements to determine the standards
appropriate to personnel who provide special education and
related services under this part. The regulations do not require
States to set any specified training standard, such as a master's
degree, for employment of personnel who provide services under
this part. In some instances, States will be required to show
that they are taking steps to retrain or to hire personnel to
meet the standards adopted by the SEA that are based on
requirements for practice in a specific profession or discipline
that were established by other State agencies. States in this
position need not, however, require personnel providing services
under this part to apply for and obtain the license,
registration, or other comparable credential required by other
agencies of individuals in that profession or discipline. The
regulations permit each State to determine the specific
occupational categories required to provide special education and
related services and to revise or expand these categories as
needed. The professions or disciplines defined by the State need
not be limited to traditional occupational categories.

Sec. 300.154 Transition of individuals from Part H to Part B.

Each State plan must set forth policies and procedures relating
to the smooth transition for those individuals participating in
the early intervention program under Part H of the Act who will
participate in preschool programs assisted under this part,
including a method of ensuring that when a child turns age 3 an
IEP, or, if consistent with sections 614(a)(5) and 677(d) of the
Act, an individualized family service plan, has been developed
and implemented by the child's third birthday.
(Authority: 20 U.S.C. 1413(a)(15))


LOCAL EDUCATIONAL AGENCY APPLICATIONS -- GENERAL

Sec. 300.180 Submission of application.

In order to receive payments under Part B of the Act for any
fiscal year, an LEA must submit an application to the SEA.
(Authority: 20 U.S.C. 1414(a))

Sec. 300.181 [Reserved]

Sec. 300.182 The excess cost requirement.

An LEA may only use funds under Part B of the Act for the
excess costs of providing special education and related services
for children with disabilities.
(Authority: 20 U.S.C. 1414(a)(1), (a)(2)(B)(i))

Sec. 300.183 Meeting the excess cost requirement.

(a) An LEA meets the excess cost requirement if it has on
the average spent at least the amount determined under Sec.
300.184
for the education of each of its children with disabilities.
This amount may not include capital outlay or debt service.
(Authority: 20 U.S.C. 1402(20); 1414(a)(1))

Note: The excess cost requirement means that the LEA must
spend a certain minimum amount for the education of its children
with disabilities before Part B funds are used. This ensures
that children served with Part B funds have at least the same
average amount spent on them, from sources other than Part B, as
do the children in the school district taken as a whole.
The minimum amount that must be spent for the education of
children with disabilities is computed under a statutory formula.
Section 300.184 implements this formula and gives a step-by-step
method to determine the minimum amount. Excess costs are those
costs of special education and related services that exceed the
minimum amount. Therefore, if an LEA can show that it has (on
the average) spent the minimum amount for the education of each
of its children with disabilities, it has met the excess cost
requirement, and all additional costs are excess costs. Part B
funds can then be used to pay for these additional costs, subject
to the other requirements of Part B (priorities, etc.). In the
Note under Sec. 300.184, there is an example of how the minimum
amount is computed.

Sec. 300.184 Excess costs -- computation of minimum amount.

The minimum average amount that an LEA must spend under
Sec. 300.183 for the education of each of its children with
disabilities is computed as follows:

(a) Add all expenditures of the LEA in the preceding school
year, except capital outlay and debt service --

(1) For elementary school students, if the child with a
disability is an elementary school student; or

(2) For secondary school students, if the child with a
disability is a secondary school student.

(b) From this amount, subtract the total of the following
amounts spent for elementary school students or for secondary
school students, as the case may be --

(1) Amounts the agency spent in the preceding school year
from funds awarded under Part B of the Act and Titles I and VII
of the Elementary and Secondary Education Act of 1965; and

(2) Amounts from State and local funds that the agency
spent in the preceding school year for --

(i) Programs for children with disabilities;

(ii) Programs to meet the special educational needs of
educationally deprived children; and

(iii) Programs of bilingual education for limited English
proficient children.

(c) Divide the result under paragraph (b) of this section
by the average number of students enrolled in the agency in the
preceding school year --

(1) In its elementary schools, if the child with a
disability is an elementary school student; or

(2) In its secondary schools, if the child with a
disability is a secondary school student.
(Authority: 20 U.S.C. 1414(a)(1))

Note: The following is an example of how an LEA might
compute the average minimum amount it must spend for the
education of each of its children with disabilities, under
Sec. 300.183. This example follows the formula in Sec. 300.184.
Under
the statute and regulations, the LEA must make one computation
for children with disabilities in its elementary schools and a
separate computation for children with disabilities in its
secondary schools. The computation for elementary school
students with disabilities would be done as follows:

a. First, the LEA must determine its total amount of
expenditures for elementary school students from all sources --
local, State, and Federal (including Part B) -- in the preceding
school year. Only capital outlay and debt service are excluded.

Example: An LEA spent the following amounts last year for
elementary school students (including its elementary school
students with disabilities):

(1) From local tax funds....... $2,750,000

(2) From State funds............ 7,000,000

(3) From Federal funds.......... 750,000
10,500,000

Of this total, $500,000 was for capital outlay and debt service
relating to the education of elementary school students. This
must be subtracted from total expenditures:
$10,500,000
-- 500,000
Total expenditures for elementary school students (less capital
outlay and debt service)....... =10,000,000

b. Next, the LEA must subtract amounts spent for:

(1) Programs for children with disabilities;

(2) Programs to meet the special educational needs of
educationally deprived children; and

(3) Programs of bilingual education for limited English
proficient children.
These are funds that the LEA actually spent, not funds
received last year but carried over for the current school year.

Example: The LEA spent the following amounts for elementary
school students last year:

(1) From funds under Chapter 1 of Title I of the Elementary and
Secondary Education Act of 1965.......300,000

(2) From a special State program for educationally deprived
children....... 200,000
(3) From a grant under Part B....... 200,000

(4) From State funds for the education of children with
disabilities....... 500,000

(5) From a locally-funded program for children with
disabilities...... 250,000

(6) From a grant for a bilingual education program under Title
VII of the Elementary and Secondary Education Act of
1965....... 150,000

Total....... 1,600,000

(An LEA would also include any other funds it spent from
Federal, State, or local sources for the three basic purposes:
Children with disabilities, educationally deprived children, and
bilingual education for limited English proficient children.)
This amount is subtracted from the LEA's total expenditure
for elementary school students computed above:
$10,000,000
-1,600,000
8,400,000

c. The LEA next must divide by the average number of
students enrolled in the elementary schools of the agency last
year (including its students with disabilities).

Example: Last year, an average of 7,000 students were
enrolled in the agency's elementary schools. This must be
divided into the amount computed under the above paragraph:
$8,400,000/7,000 students = $1,200/student.
This figure is in the minimum amount the LEA must spend (on
the average) for the education of each of its students with
disabilities. Funds under Part B may be used only for costs over
and above this minimum. In this example, if the LEA has 100
elementary school students with disabilities, it must keep
records adequate to show that it has spent at least $120,000 for
the education of those students (100 students times
$1,200/student), not including capital outlay and debt service.
This $120,000 may come from any funds except funds under
Part B, subject to any legal requirements that govern the use of
those other funds.
If the LEA has secondary school students with disabilities,
it must do the same computation for them. However the amounts
used in the computation would be those the LEA spent last year
for the education of secondary school students, rather than for
elementary school students.

Sec. 300.185 Computation of excess costs -- consolidated
application.

The minimum average amount under Sec. 300.183, if two or more
LEAs submit a consolidated application, is the average of the
combined minimum average amounts determined under Sec. 300.184 in
those agencies for elementary or secondary school students, as
the case may be.
(Authority: 20 U.S.C. 1414(a)(1))

Sec. 300.186 Excess costs -- limitation on use of Part B funds.

(a) 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 (b) of this section.

(b) 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 age ranges three, four, five, eighteen, nineteen, twenty,
or twenty-one, 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.
(Authority: 20 U.S.C. 1402(20); 1414(a)(1))

Sec. 300.187-300.189 [Reserved]

Sec. 300.190 Consolidated applications.

(a) [Reserved]

(b) Required applications. An SEA may require LEAs to
submit a consolidated application for payments under Part B of
the Act if the SEA determines that an individual application
submitted by an LEA will be disapproved because --

(1) The agency's entitlement is less than the $7,500
minimum required by section 611(c)(4)(A)(i) of the Act
(Sec. 300.360(a)(1)); or

(2) The agency is unable to establish and maintain programs
of sufficient size and scope to effectively meet the educational
needs of children with disabilities.

(c) Size and scope of program. The SEA shall establish
standards and procedures for determinations under paragraph
(b)(2) of this section.
(Authority: 20 U.S.C. 1414(c)(1))

Sec. 300.191 [Reserved]

Sec. 300.192 State regulation of consolidated applications.

(a) The SEA shall issue regulations with respect to
consolidated applications submitted under this part.

(b) The SEA's regulations must --
(1) Be consistent with sections 612(1)-(7) and 613(a) of
the Act; and

(2) Provide participating LEAs with joint responsibilities
for implementing programs receiving payments under this part.
(Authority: 20 U.S.C. 1414(c)(2)(B))

(c) If an IEU is required by State law to carry out this
part, the joint responsibilities given to LEAs under paragraph
(b)(2) of this section do not apply to the administration and
disbursement of any payments received by the IEU. Those
administrative responsibilities must be carried out exclusively
by the IEU.
(Authority: 20 U.S.C. 1414(c)(2)(C))

Sec. 300.193 State educational agency approval; disapproval.

(a)-(b) [Reserved]

(c) In carrying out its functions under this section, each
SEA shall consider any decision resulting from a hearing under
Sec. 300.506-300.513 that is adverse to the LEA involved in the
decision.
(Authority: 20 U.S.C. 1414(b)(3))

Sec. 300.194 Withholding.

(a) If an SEA, after giving reasonable notice and an
opportunity for a hearing to an LEA, decides that the LEA in the
administration of an application approved by the SEA has failed
to comply with any requirement in the application, the SEA, after
giving notice to the LEA, shall --

(1) Make no further payments to the LEA until the SEA is
satisfied that there is no longer any failure to comply with the
requirement; or

(2) Consider its decision in its review of any application
made by the LEA under Sec. 300.180; or

(3) Both.

(b) [Reserved]
(Authority: 20 U.S.C. 1414(b)(2))


LOCAL EDUCATIONAL AGENCY APPLICATIONS -- CONTENTS

Sec. 300.220 Child identification.

Each application must include procedures that ensure that
all children residing within the jurisdiction of the LEA who have
disabilities, regardless of the severity of their disability, and
who are in need of special education and related services, are
identified, located, and evaluated, including a practical method
for determining which children are currently receiving needed
special education and related services and which children are not
currently receiving needed special education and related
services.
(Authority: 20 U.S.C. 1414(a)(1)(A))

Note: The LEA is responsible for ensuring that all children
with disabilities within its jurisdiction are identified,
located, and evaluated, including children in all public and
private agencies and institutions within that jurisdiction.
Collection and use of data are subject to the confidentiality
requirements of Sec. 300.560-300.576.

Sec. 300.221 Confidentiality of personally identifiable
information.

Each application must include policies and procedures that
ensure that the criteria in Sec. 300.560-300.574 are met.
(Authority: 20 U.S.C. 1414(a)(1)(B))

Sec. 300.222 Full educational opportunity goal -- timetable.

Each application must --

(a) Include a goal of providing full educational opportunity
to all children with disabilities, aged birth through 21; and

(b) Include a detailed timetable for accomplishing the
goal.
(Authority: 20 U.S.C. 1414(a)(1)(C), (D))

Sec. 300.223 Facilities, personnel, and services.

Each application must provide a description of the kind and
number of facilities, personnel, and services necessary to meet
the goal in Sec. 300.222.
(Authority: 20 U.S.C. 1414(a)(1)(E))

Sec. 300.224 Personnel development.

Each application must include procedures for the
implementation and use of the comprehensive system of personnel
development established by the SEA under Sec. 300.139.
(Authority: 20 U.S.C. 1414(a)(1)(C)(i))

Sec. 300.225 Priorities.

Each application must include priorities that meet the
requirements of Sec. 300.320-300.324.
(Authority: 20 U.S.C. 1414(a)(1)(C)(ii))

Sec. 300.226 Parent involvement.

Each application must include procedures to ensure that, in
meeting the goal under Sec. 300.222, the LEA makes provision for
participation of and consultation with parents or guardians of
children with disabilities.
(Authority: 20 U.S.C. 1414(a)(1)(C)(iii))

Sec. 300.227 Participation in regular education programs.

(a) Each application must include procedures to ensure that
to the maximum extent practicable, and consistent with Sec.
300.550-
300.553, the LEA provides special services to enable children
with disabilities to participate in regular educational programs.

(b) Each application must describe --

(1) The types of alternative placements that are available
for children with disabilities; and

(2) The number of children with disabilities within each
disability category who are served in each type of placement.
(Authority: 20 U.S.C. 1414(a)(1)(C)(iv))

Sec. 300.228 [Reserved]

Sec. 300.229 Excess cost.

Each application must provide assurance satisfactory to the
SEA that the LEA uses funds provided under Part B of the Act only
for costs that exceed the amount computed under Sec. 300.184 and
that
are directly attributable to the education of children with
disabilities.
(Authority: 20 U.S.C. 1414(a)(2)(B))

Sec. 300.230 Nonsupplanting.

(a) Each application must provide assurance satisfactory to
the SEA that the LEA uses funds provided under Part B of the Act
to supplement and, to the extent practicable, increase the level
of State and local funds expended for the education of children
with disabilities, and in no case to supplant those State and
local funds.

(b) To meet the requirement in paragraph (a) of this
section, the total amount or average per capita amount of State
and local school funds budgeted by the LEA for expenditures in
the current fiscal year for the education of children with
disabilities must be at least equal to the total amount or
average per capita amount of State and local school funds
actually expended for the education of children with disabilities
in the most recent preceding fiscal year for which the
information is available. Allowance may be made for --

(1) Decreases in enrollment of children with disabilities;
and

(2) Unusually large amounts of funds expended for such
long-term purposes as the acquisition of equipment and the
construction of school facilities.
(Authority: 20 U.S.C. 1414(a)(2)(B))

Sec. 300.231 Comparable services.

(a) Each application must provide assurance satisfactory to
the SEA that the LEA meets the requirements of this section.

(b) An LEA may not use funds under Part B of the Act to
provide services to children with disabilities unless the LEA
uses State and local funds to provide services to those children
that, taken as a whole, are at least comparable to services
provided to other children with disabilities in that LEA.

(c) Each LEA shall maintain records that show that the LEA
meets the requirement in paragraph (b) of this section.
(Authority: 20 U.S.C. 1414(a)(2)(C))

Note: Under the ``comparability'' requirement, if State and
local funds are used to provide certain services, those services
must be provided with State and local funds to all children with
disabilities in the LEA who need them. Part B funds may then be
used to supplement existing services, or to provide additional
services to meet special needs. This, of course, is subject to
the other requirements of the Act, including the priorities under

Sec. 300.320-300.324.

Sec. 300.232-300.234 [Reserved]

Sec. 300.235 Individualized education programs.

Each application must include procedures to assure that the
LEA complies with Sec. 300.340-300.350.
(Authority: 20 U.S.C. 1414(a)(5))

Sec. 300.236 [Reserved]

Sec. 300.237 Procedural safeguards.

Each application must provide assurance satisfactory to the
SEA that the LEA has procedural safeguards that meet the
requirements of Sec. 300.500-300.515.
(Authority: 20 U.S.C. 1414(a)(7))

Sec. 300.238 Use of Part B funds.

Each application must describe how the LEA will use the
funds under Part B of the Act during the next school year.
(Authority: 20 U.S.C. 1414(a))

Sec. 300.239 [Reserved]

Sec. 300.240 Other requirements.

Each local application must include additional procedures
and information that the SEA may require in order to meet the
State plan requirements of Sec. 300.121-300.153.
(Authority: 20 U.S.C. 1414(a)(6))


APPLICATION FROM SECRETARY OF THE INTERIOR

Sec. 300.260 Submission of application; approval.

(a) In order to receive a grant under this part, the
Secretary of the Interior shall submit an application that --

(1) Meets the requirements of section 612(1), 612(2)(C)-
(E), 612(4), 612(5), 612(6), and 612(7) of the Act (including
monitoring and evaluation activities);

(2) Meets the requirements of section 613(a), (2), (3),
(4)(B), (5), (6), (7), (10), (11), (12), (13), (14), and (15),
613(b), and 613(e) of the Act;

(3) Meets the requirements of section 614(a)(1)(A)-(B),
(2)(A), (C), (3),(4), (5), and (7) of the Act;

(4) Meets the requirements of this part that implement the
sections of the Act listed in paragraphs (a)(1)-(3) of this
section.

(5) Includes a description of how the Secretary of the Interior
will coordinate the provision of services under this part with
LEAs, tribes and tribal organizations, and other private and
Federal service providers;

(6) Includes an assurance that there are public hearings,
adequate notice of such 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 required under paragraphs (a)(1)-(3) of
this section;

(7) Includes an assurance that the Secretary of the Interior
will provide such information as the Secretary may require to
comply with section 618(b)(1) of the Act, including data on the
number of children and youth with disabilities served and the
types and amounts of services provided and needed;

(8) Includes an assurance that, by October 1, 1992, the
Secretaries of the Interior and Health and Human Services will
enter 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 SEAs and LEAs and other entities to facilitate
the provision of services to Indian children with disabilities
residing on or near reservations. That agreement must provide
for the apportionment of responsibilities and costs, including,
but not limited to, those related to child find, evaluation,
diagnosis, remediation or therapeutic measures, and (where
appropriate) equipment and medical or personal supplies, or both,
as needed for a child to remain in school or a program; and

(9) Includes an assurance that the Department of the Interior
will cooperate with the Department of Education in the latter's
exercise of monitoring and oversight of this application, and any
agreements entered into between the Secretary of the Interior and
other entities under the Act and will fulfill its duties under
the Act.

(b) Sections 300.581-300.585 apply to grants available to
the Secretary of the Interior under this part.
(Authority: 20 U.S.C. 1411(f))

Sec. 300.261 Public participation.

In the development of the application for the Department of
the Interior, the Secretary of the Interior shall provide for
public participation consistent with Sec. 300.280-300.284.
(Authority: 20 U.S.C. 1411(f))

Sec. 300.262 Use of Part B funds.

(a)(1) The Department of the Interior may use five percent
of its payment under Sec. 300.709 in any fiscal year, or
$350,000,
whichever is greater, for administrative costs in carrying out
the provisions of this part.

(2) The remainder of the payments to the Secretary of the
Interior under Sec. 300.709 in any fiscal year must be used in
accordance with the priorities under Sec. 300.320-300.324.

(b) Payments to the Secretary of the Interior under Sec. 300.710
must be used in accordance with that section.
(Authority: 20 U.S.C. 1411(f))

Sec. 300.263 Applicable regulations.

The Secretary of the Interior shall comply with the
requirements of Sec. 300.301-300.303, Sec. 300.305-300.307, and
Sec. 300.340-300.347, Sec. 300.350, Sec. 300.360-300.383, Sec.
300.400-
300.402, Sec. 300.500-300.585, Sec. 300.600-300.621, and Sec.
300.660-
300.662.
(Authority: 20 U.S.C. 1411(f)(2))

PUBLIC PARTICIPATION

Sec. 300.280 Public hearings before adopting a State plan.

Prior to its adoption of a State plan, the SEA shall --

(a) Make the plan available to the general public;

(b) Hold public hearings; and

(c) Provide an opportunity for comment by the general
public on the plan.
(Authority: 20 U.S.C. 1412(7))

Sec. 300.281 Notice.

(a) The SEA shall provide 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 plan and its
relation to Part B of the Act;

(2) The availability of the State plan;

(3) The date, time, and location of each public hearing;

(4) The procedures for submitting written comments about
the plan; and

(5) The timetable for developing the final plan and
submitting it 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(7))

Sec. 300.282 Opportunity to participate; comment period.

(a) The SEA shall conduct the public hearings at times and
places that afford interested parties throughout the State a
reasonable opportunity to participate.

(b) The plan must be available for comment for a period of
at least 30 days following the date of the notice under Sec.
300.281.
(Authority: 20 U.S.C. 1412(7))

Sec. 300.283 Review of public comments before adopting plan.

Before adopting its State plan, the SEA shall --

(a) Review and consider all public comments; and

(b) Make any necessary modifications in the plan.
(Authority: 20 U.S.C. 1412(7))

Sec. 300.284 Publication and availability of approved plan.

After the Secretary approves a State plan, the SEA shall
give notice in newspapers or other media, or both, that the plan
is approved. The notice must name places throughout the State
where the plan is available for access by any interested person.
(Authority: 20 U.S.C. 1412(7))


Subpart C -- Services

FREE APPROPRIATE PUBLIC EDUCATION

Sec. 300.300 Timelines for free appropriate public education.

(a) General. Each State shall ensure that FAPE is
available to all children with disabilities aged 3 through 18
within the State not later than September 1, 1978, and to all
children with disabilities aged 3 through 21 within the State not
later than September 1, 1980.

(b) Age ranges 3-5 and 18-21. This paragraph provides
rules for applying the requirement in paragraph (a) of this
section to children with disabilities aged 3, 4, 5, 18, 19, 20,
and 21:

(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 reservations. With the
exception of children identified in Sec. 300.709(a)(1) and (2),
the
SEA shall be responsible for ensuring that all of the
requirements of Part B of the Act are implemented for all
children aged 3 through 21 on reservations.
(Authority: 20 U.S.C. 1411(f); 1412(2)(B); S. Rep. No. 94-168,
p. 19 (1975))

Note 1: The requirement to make FAPE available applies to
all children with disabilities within the State who are in the
age ranges required under Sec. 300.300 and who need special
education
and related services. This includes children with disabilities
already in school and children with less severe disabilities, who
are not covered under the priorities under Sec. 300.321.

Note 2: In order to be in compliance with Sec. 300.300, each
State
must ensure that the requirement to identify, locate, and
evaluate all children with disabilities is fully implemented by
public agencies throughout the State. This means that before
September 1, 1978, every child who has been referred or is on a
waiting list for evaluation (including children in school as well
as those not receiving an education) must be evaluated in
accordance with Sec. 300.530-300.533. If, as a result of the
evaluation, it is determined that a child needs special education
and related services, an IEP must be developed for the child by
September 1, 1978, and all other applicable requirements of this
part must be met.

Note 3: The requirement to identify, locate, and evaluate
children with disabilities (commonly referred to as the ``child
find system'') was enacted on August 21, 1974, under
Pub. L. 93-380. While each State needed time to establish and
implement its child find system, the four year period between
August 21, 1974, and September 1, 1978, is considered to be
sufficient to ensure that the system is fully operational and
effective on a State-wide basis.
Under the statute, the age range for the child find
requirement (0-21) is greater than the mandated age range for
providing FAPE. One reason for the broader age requirement under
``child find'' is to enable States to be aware of and plan for
younger children who will require special education and related
services. It also ties in with the full educational opportunity
goal requirement that has the same age range as child find.
Moreover, while a State is not required to provide FAPE to
children with disabilities below the age ranges mandated under
Sec. 300.300, the State may, at its discretion, extend services
to
those children, subject to the priority requirements of
Sec. 300.320-300.324.

Sec. 300.301 Free appropriate public education -- methods and
payments.

(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, when 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.
(Authority: 20 U.S.C. 1401 (18); 1412(2)(B))

Sec. 300.302 Residential placement.

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(2)(B); 1413(a)(4)(B))

Note: This requirement applies to placements that are made
by public agencies for educational purposes, and includes
placements in State-operated schools for children with
disabilities, such as a State school for students with deafness
or students with blindness.

Sec. 300.303 Proper functioning of hearing aids.

Each public agency shall ensure that the hearing aids worn
by children with hearing impairments including deafness in school
are functioning properly.
(Authority: 20 U.S.C. 1412(2)(B))

Note: The report of the House of Representatives on the
1978 appropriation bill includes the following statement
regarding hearing aids:
In its report on the 1976 appropriation bill the Committee
expressed concern about the condition of hearing aids worn by
children in public schools. A study done at the Committee's
direction by the Bureau of Education for the Handicapped reveals
that up to one-third of the hearing aids are malfunctioning.
Obviously, the Committee expects the Office of Education will
ensure that hearing impaired school children are receiving
adequate professional assessment, follow-up and services.
(Authority: H. R. Rep. No. 95-381, p. 67 (1977))

Sec. 300.304 Full educational opportunity goal.

(a) 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.

(b) Subject to the priority requirements of Sec. 300.320-
300.324, an SEA or LEA may use Part B funds to provide
facilities, personnel, and services necessary to meet the full
educational opportunity goal.
(Authority: 20 U.S.C. 1412(2)(A); 1414(a)(1)(C))

Note: In meeting the full educational opportunity goal, the
Congress also encouraged LEAs to include artistic and cultural
activities in programs supported under this part, subject to the
priority requirements of Sec. 300.320-300.324. This point is
addressed in the following statements from the Senate Report on
Pub. L. 94-142:
The use of the arts as a teaching tool for the handicapped
has long been recognized as a viable, effective way not only of
teaching special skills, but also of reaching youngsters who had
otherwise been unteachable. The Committee envisions that
programs under this bill could well include an arts component
and, indeed, urges that local educational agencies include the
arts in programs for the handicapped funded under this Act. Such
a program could cover both appreciation of the arts by the
handicapped youngsters, and the utilization of the arts as a
teaching tool per se.
Museum settings have often been another effective tool in
the teaching of handicapped children. For example, the Brooklyn
Museum has been a leader in developing exhibits utilizing the
heightened tactile sensory skill of the blind. Therefore, in
light of the national policy concerning the use of museums in
federally supported education programs enunciated in the
Education Amendments of 1974, the Committee also urges local
educational agencies to include museums in programs for the
handicapped funded under this Act.
(Authority: S. Rep. No. 94-168, p. 13 (1975))

Sec. 300.305 Program options.

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(2)(A); 1414(a)(1)(C))

Note: The above list of program options is not exhaustive,
and could include any program or activity in which nondisabled
students participate.

Sec. 300.306 Nonacademic services.

(a) Each public agency shall take steps to provide
nonacademic and extracurricular services and activities in such
manner as is 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(2)(A); 1414(a)(1)(C))

Sec. 300.307 Physical education.

(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. 1401(a)(16); 1412(5)(B); 1414(a)(6))

Note: The Report of the House of Representatives on Pub. L.
94-142 includes the following statement regarding physical
education:
Special education as set forth in the Committee bill
includes instruction in physical education, which is provided as
a matter of course to all non-handicapped children enrolled in
public elementary and secondary schools. The Committee is
concerned that although these services are available to and
required of all children in our school systems, they are often
viewed as a luxury for handicapped children.

*The Committee expects the Commissioner of Education to take
whatever action is necessary to assure that physical education
services are available to all handicapped children, and has
specifically included physical education within the definition of
special education to make clear that the Committee expects such
services, specially designed where necessary, to be provided as
an integral part of the educational program of every handicapped
child.
(Authority: H. R. Rep. No. 94-332, p. 9 (1975))

Sec. 300.308 Assistive technology.

Each public agency shall ensure that assistive technology devices
or assistive technology services, or both, as those terms are
defined in Sec. 300.5-300.6, are made available to a child with a
disability if required as a part of the child's --

(a) Special education under Sec. 300.17;

(b) Related services under Sec. 300.16; or

(c) Supplementary aids and services under Sec. 300.550(b)(2).
(Authority: 20 U.S.C. 1412(2), (5)(B))


PRIORITIES IN THE USE OF PART B FUNDS

Sec. 300.320 Definitions of first priority children and second
priority children.

For the purposes of Sec. 300.321-300.324, the term:

(a) "First priority children" means children with
disabilities who --
(1) Are in an age group for which the State must make FAPE
available under Sec. 300.300; and

(2) Are not receiving any education.

(b) "Second priority children" means children with
disabilities, within each disability category, with the most
severe disabilities who are receiving an inadequate education.
(Authority: 20 U.S.C. 1412(3))

Note 1: After September 1, 1978, there should be no second
priority children, since States must ensure, as a condition of
receiving Part B funds for fiscal year 1979, that all children
with disabilities will have FAPE available by that date.

Note 2: The term "free appropriate public education," as
defined in Sec. 300.8, means special education and related
services
that *** "are provided in conformity with an IEP" ***.
New first priority children will continue to be found by the
State after September 1, 1978 through on-going efforts to
identify, locate, and evaluate all children with disabilities.

Sec. 300.321 Priorities.

(a) Each SEA and LEA shall use funds provided under Part B
of the Act in the following order of priorities:

(1) To provide FAPE to first priority children, including
the identification, location, and evaluation of first priority
children.

(2) To provide FAPE to second priority children, including
the identification, location, and evaluation of second priority
children.

(3) To meet the other requirements of this part.

(b) The requirements of paragraph (a) of this section do
not apply to funds that the State uses for administration under
Sec. 300.620.
(Authority: 20 U.S.C. 1411(b)(1)(B), (b)(2)(B), (c)(1)(B),
(c)(2)(A)(ii))

Note: SEAs as well as LEAs must use Part B funds (except
the portion used for State administration) for the priorities. A
State may have to set aside a portion of its Part B allotment to
be able to serve newly identified first priority children.

After September 1, 1978, Part B funds may be used --

(1) To continue supporting child identification, location,
and evaluation activities;

(2) To provide FAPE to newly identified first priority
children;

(3) To meet the full educational opportunity goal required
under Sec. 300.304, including employing additional personnel and
providing inservice training, in order to increase the level,
intensity and quality of services provided to individual children
with disabilities; and

(4) To meet the other requirements of Part B.

Sec. 300.322 [Reserved]

Sec. 300.323 Services to other children.

If a State or an LEA is providing FAPE to all of its first
priority children, that State or LEA may use funds provided under
Part B of the Act --

(a) To provide FAPE to children with disabilities who are
not receiving any education and who are in the age groups not
covered under Sec. 300.300 in that State; or

(b) To provide FAPE to second priority children; or

(c) Both.
(Authority: 20 U.S.C. 1411(b)(1)(B), (b)(2)(B), (c)(2)(A)(ii))

Sec. 300.324 Application of local educational agency to use funds
for the second priority.

An LEA may use funds provided under Part B of the Act for
second priority children, if it provides assurance satisfactory
to the SEA in its application (or an amendment to its
application) --

(a) That all first priority children have FAPE available to
them;

(b) That the LEA has a system for the identification,
location, and evaluation of children with disabilities, as
described in its application; and

(c) That whenever a first priority child is identified,
located, and evaluated, the LEA makes FAPE available to the
child.
(Authority: 20 U.S.C. 1411(b)(1)(B), (c)(1)(B);
1414(a)(1)(C)(ii))


INDIVIDUALIZED EDUCATION PROGRAMS

Sec. 300.340 Definitions.

(a) As used in this part, the term "individualized
education program" means a written statement for a child with a
disability that is developed and implemented in accordance with
Sec. 300.341-300.350.

(b) As used in Sec. 300.346 and 300.347, "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(a)(20))

Sec. 300.341 State educational agency responsibility.

(a) Public agencies. The SEA shall ensure that each public
agency develops and implements an IEP for each of its children
with disabilities.

(b) Private schools and facilities. The SEA shall ensure
that an IEP is developed and implemented for each child with a
disability who --

(1) Is placed in or referred to a private school or
facility by a public agency; or

(2) Is enrolled in a parochial school or other private
school and receives special education or related services from a
public agency.
(Authority: 20 U.S.C. 1412(4), (6); 1413(a)(4))

Note: This section applies to all public agencies,
including other State agencies (e.g., departments of mental
health and welfare) that provide special education to a child
with a disability either directly, by contract or through other
arrangements. Thus, if a State welfare agency contracts with a
private school or facility to provide special education to a
child with a disability, that agency would be responsible for
ensuring that an IEP is developed for the child.

Sec. 300.342 When individualized education programs must be in
effect.

(a) At the beginning of each school year, each public
agency shall have in effect an IEP for every child with a
disability who is receiving special education from that agency.

(b) An IEP must --

(1) Be in effect before special education and related
services are provided to a child; and

(2) Be implemented as soon as possible following the
meetings under Sec. 300.343.
(Authority: 20 U.S.C. 1412(2)(B), (4), (6); 1414(a)(5); Pub. L.
94-142, sec. 8(c) (1975))

Note: Under paragraph (b)(2) of this section, it is
expected that the IEP of a child with a disability will be
implemented immediately following the meetings under Sec.
300.343.
An exception to this would be

(1) when the meetings occur during
the summer or a vacation period, or

(2) where there are
circumstances that require a short delay (e.g., working out
transportation arrangements). However, there can be no undue
delay in providing special education and related services to the
child.

Sec. 300.343 Meetings.

(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 State policy and at the discretion of the LEA,
and with the concurrence of the parents, an individualized family
service plan described in section 677(d) of the Act for each
child with a disability, aged 3 through 5).

(b) [Reserved]

(c) Timeline. A meeting to develop an IEP for a child must be
held within 30 calendar days of a determination that the child
needs special education and related services.

(d) Review. Each public agency shall initiate and conduct
meetings to review each child's IEP periodically and, if
appropriate, revise its provisions. A meeting must be held for
this purpose at least once a year.
(Authority: 20 U.S.C. 1412(2)(B), (4), (6); 1414(a)(5))

Note: The date on which agencies must have IEPs in effect
is specified in Sec. 300.342 (the beginning of each school year).
However, except for new children with disabilities (i.e., those
evaluated and determined to need special education and related
services for the first time), the timing of meetings to develop,
review, and revise IEPs is left to the discretion of each agency.

In order to have IEPs in effect at the beginning of the school
year, agencies could hold meetings either at the end of the
preceding school year or during the summer prior to the next
school year. Meetings may be held any time throughout the year,
as long as IEPs are in effect at the beginning of each school
year.
The statute requires agencies to hold a meeting at least
once each year in order to review and, if appropriate, revise
each child's IEP. The timing of those meetings could be on the
anniversary date of the child's last IEP meeting, but this is
left to the discretion of the agency.

Sec. 300.344 Participants in meetings.

(a) General. The public agency shall ensure that each
meeting includes the following participants:

(1) A representative of the public agency, other than the
child's teacher, who is qualified to provide, or supervise the
provision of, special education.

(2) The child's teacher.

(3) One or both of the child's parents, subject to
Sec. 300.345.

(4) The child, if appropriate.

(5) Other individuals at the discretion of the parent or
agency.

(b) Evaluation personnel. For a child with a disability
who has been evaluated for the first time, the public agency
shall ensure --

(1) That a member of the evaluation team participates in
the meeting; or

(2) That the representative of the public agency, the
child's teacher, or some other person is present at the meeting,
who is knowledgeable about the evaluation procedures used with
the child and is familiar with the results of the evaluation.

(c) Transition services participants.

(1) If a purpose of the
meeting is the consideration of transition services for a
student, the public agency shall invite --

(i) The student; and

(ii) A representative of any other agency that is likely to be
responsible for providing or paying for transition services.

(2) If the student does not attend, the public agency shall take
other steps to ensure that the student's preferences and
interests are considered; and

(3) If an agency invited to send a representative to a meeting
does not do so, the public agency shall take other steps to
obtain the participation of the other agency in the planning of
any transition services.
(Authority: 20 U.S.C. 1401(a)(19), (a)(20); 1412(2)(B), (4),
(6); 1414(a)(5))

Note 1: In deciding which teacher will participate in
meetings on a child's IEP, the agency may wish to consider the
following possibilities:

(a) For a child with a disability who is receiving special
education, the teacher could be the child's special education
teacher. If the child's disability is a speech impairment, the
teacher could be the speech-language pathologist.

(b) For a child with a disability who is being considered
for placement in special education, the teacher could be the
child's regular teacher, or a teacher qualified to provide
education in the type of program in which the child may be
placed, or both.

(c) If the child is not in school or has more than one
teacher, the agency may designate which teacher will participate
in the meeting.
Either the teacher or the agency representative should be
qualified in the area of the child's suspected disability.
For a child whose primary disability is a speech or
language impairment, the evaluation personnel participating under
paragraph (b)(1) of this section would normally be the
speech-language pathologist.

Note 2: Under paragraph (c), the public agency is required to
invite each student to participate in his or her IEP meeting, if
a purpose of the meeting is the consideration of transition
services for the student. For all students who are 16 years of
age or older, one of the purposes of the annual meeting will
always be the planning of transition services, since transition
services are a required component of the IEP for these students.

For a student younger than age 16, if transition services are
initially discussed at a meeting that does not include the
student, the public agency is responsible for ensuring that,
before a decision about transition services for the student is
made, a subsequent IEP meeting is conducted for that purpose, and
the student is invited to the meeting.

Sec. 300.345 Parent participation.

(a) Each public agency shall take steps to ensure that one
or both of the parents of the child with a disability are present
at each 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)

(1) The notice under paragraph (a)(1) of this section
must indicate the purpose, time, and location of the meeting and
who will be in attendance;

(2) If a purpose of the meeting is the consideration of
transition services for a student, the notice must also --

(i) Indicate this purpose;

(ii) Indicate that the agency will invite the student; and

(iii) Identify any other agency that will be invited to send a
representative.

(c) If neither parent can attend, the public agency shall
use other methods to ensure parent participation, including
individual or conference telephone calls.

(d) 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) The public agency shall take whatever action is
necessary to ensure that the parent understands the proceedings
at a meeting, including arranging for an interpreter for parents
with deafness or whose native language is other than English.

(f) The public agency shall give the parent, on request, a
copy of the IEP.
(Authority: 20 U.S.C. 1401(a)(20); 1412 (2)(B), (4), (6);
1414(a)(5))

Note: The notice in paragraph (a) of this section could
also inform parents that they may bring other people to the
meeting. As indicated in paragraph (c) of this section, the
procedure used to notify parents (whether oral or written or
both) is left to the discretion of the agency, but the agency
must keep a record of its efforts to contact parents.
Sec. 300.346 Content of individualized education program.

(a) General. The IEP for each child must include --

(1) A statement of the child's present levels of
educational performance;

(2) A statement of annual goals, including short-term
instructional objectives;

(3) A statement of the specific special education and
related services to be provided to the child and the extent that
the child will be able to participate in regular educational
programs;

(4) The projected dates for initiation of services and the
anticipated duration of the services; and

(5) Appropriate objective criteria and evaluation
procedures and schedules for determining, on at least an annual
basis, whether the short term instructional objectives are being
achieved.

(b) Transition services.

(1) The IEP for each student,
beginning no later than age 16 (and at a younger age, if
determined appropriate), must include a statement of the needed
transition services as defined in Sec. 300.18, including, if
appropriate, a statement of each public agency's and each
participating agency's responsibilities or linkages, or both,
before the student leaves the school setting.

(2) If the IEP team determines that services are not needed in
one or more of the areas specified in Sec. 300.18(b)(2)(i)
through

(b)(2)(iii), the IEP must include a statement to that effect and
the basis upon which the determination was made.
(Authority: 20 U.S.C. 1401(a)(19), (a)(20); 1412(2)(B), (4),
(6); 1414(a)(5))

Note 1: The legislative history of the transition services
provisions of the Act suggests that the statement of needed
transition services referred to in paragraph (b) of this section
should include a commitment by any participating agency to meet
any financial responsibility it may have in the provision of
transition services. See House Report No. 101-544, p. 11 (1990).

Note 2: With respect to the provisions of paragraph (b) of this
section, it is generally expected that the statement of needed
transition services will include the areas listed in
Sec. 300.18(b)(2)(i) through (b)(2)(iii). If the IEP team
determines
that services are not needed in one of those areas, the public
agency must implement the requirements in paragraph (b)(2) of
this section. Since it is a part of the IEP, the IEP team must
reconsider its determination at least annually.

Note 3: Section 602(a)(20) of the Act provides that IEPs must
include a statement of needed transition services for students
beginning no later than age 16, but permits transition services
to students below age 16 (i.e., "...and, when determined
appropriate for the individual, beginning at age 14 or
younger."). Although the statute does not mandate transition
services for all students beginning at age 14 or younger, the
provision of these services could have a significantly positive
effect on the employment and independent living outcomes for many
of these students in the future, especially for students who are
likely to drop out before age 16. With respect to the provision
of transition services to students below age 16, the Report of
the House Committee on Education and Labor on Pub. L. 101-476
includes the following statement:

Although this language leaves the final determination of
when to initiate transition services for students under age
16 to the IEP process, it nevertheless makes clear that
Congress expects consideration to be given to the need for
transition services for some students by age 14 or younger.
The Committee encourages that approach because of their
concern that age 16 may be too late for many students,
particularly those at risk of dropping out of school and
those with the most severe disabilities. Even for those
students who stay in school until age 18, many will need
more than two years of transitional services. Students with
disabilities are now dropping out of school before age 16,
feeling that the education system has little to offer them.

Initiating services at a younger age will be critical.
(House Report No. 101-544, 10 (1990).)

Sec. 300.347 Agency responsibilities for transition services.

(a) If a participating agency fails to provide agreed-upon
transition services contained in the IEP of a student with a
disability, the public agency responsible for the student's
education shall, as soon as possible, initiate a meeting for the
purpose of identifying alternative strategies to meet the
transition objectives and, if necessary, revising the student's
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. 1401(a)(18), (a)(19), (a)(20); 1412(2)(B))

Sec. 300.348 Private school placements by public agencies.

(a) Developing individualized education programs.

(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 Sec. 300.343.

(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.

(3) [Reserved]

(b) Reviewing and revising individualized education
programs.

(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 program 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. 1413(a)(4)(B))

Sec. 300.349 Children with disabilities in parochial or other
private schools.

If a child with a disability is enrolled in a parochial or
other private school and receives special education or related
services from a public agency, the public agency shall --

(a) Initiate and conduct meetings to develop, review, and
revise an IEP for the child, in accordance with Sec. 300.343; and

(b) Ensure that a representative of the parochial or other
private school attends each meeting. If the representative
cannot attend, the agency shall use other methods to ensure
participation by the private school, including individual or
conference telephone calls.
(Authority: 20 U.S.C. 1413(a)(4)(A))

Sec. 300.350 Individualized education program -- accountability.

Each public agency must provide special education and
related services to a child with a disability in accordance with
an IEP. However, 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
objectives.
(Authority: 20 U.S.C. 1412(2)(B); 1414(a)(5), (6); Cong. Rec. at
H7152 (daily ed., July 21, 1975))

Note: This section is intended to relieve concerns that the
IEP constitutes a guarantee by the public agency and the teacher
that a child will progress at a specified rate. However, this
section does not relieve agencies and teachers from making good
faith efforts to assist the child in achieving the goals and
objectives listed in the IEP. Further, the section does not
limit a parent's right to complain and ask for revisions of the
child's program, or to invoke due process procedures, if the
parent feels that these efforts are not being made.


DIRECT SERVICE BY THE STATE EDUCATIONAL AGENCY

Sec. 300.360 Use of local educational agency allocation for
direct
services.

(a) An SEA may not distribute funds to an LEA, and shall
use those funds to ensure the provision of FAPE to children with
disabilities residing in the area served by the LEA, if the LEA,
in any fiscal year --

(1) Is entitled to less than $7,500 for that fiscal year
(beginning with fiscal year 1979);

(2) Does not submit an application that meets the
requirements of Sec. 300.220-300.240;

(3) Is unable or unwilling to establish and maintain
programs of FAPE;

(4) Is unable or unwilling to be consolidated with other
LEAs in order to establish and maintain those programs; or

(5) Has one or more children with disabilities who can best
be served by a regional or State center designed to meet the
needs of those children.

(b) 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.


(c) The excess cost requirements of Sec. 300.182-300.186 do not
apply to the SEA.
(Authority: 20 U.S.C. 1411(c)(4); 1413(b); 1414(d))

Note: Section 300.360 is a combination of three provisions
in the statute (Sections 611(c)(4), 613(b), and 614(d)). This
section focuses mainly on the State's administration and use of
local entitlements under Part B.
The SEA, as a recipient of Part B funds, is responsible for
ensuring that all public agencies in the State comply with the
provisions of the Act, regardless of whether they receive Part B
funds. If an LEA elects not to apply for its Part B entitlement,
the State would be required to use those funds to ensure that
FAPE is made available to children residing in the area served by
that local agency. However, if the local entitlement is not
sufficient for this purpose, additional State or local funds
would have to be expended in order to ensure that FAPE and the
other requirements of the Act are met.
Moreover, if the LEA is the recipient of any other Federal
funds, it would have to be in compliance with 34 CFR Sec. 104.31-
104.39 of the regulations implementing Section 504 of the
Rehabilitation Act of 1973. It should be noted that the term
``FAPE'' has different meanings under Part B and Section 504.
For example, under Part B, FAPE is a statutory term that requires
special education and related services to be provided in
accordance with an IEP. However, under Section 504, each
recipient must provide an education that includes services that
are ``designed to meet individual educational needs of
handicapped persons as adequately as the needs of nonhandicapped
persons are met ***'' Those regulations state that
implementation of an IEP, in accordance with Part B, is one means
of meeting the FAPE requirement.

Sec. 300.361 Nature and location of services.

The SEA may provide special education and related services
under Sec. 300.360(a) in the manner and at the location it
considers
appropriate. 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 Sec. 300.550-300.556).
(Authority: 20 U.S.C. 1414(d))

Sec. 300.370 Use of State agency allocations.

(a) The State may use the portion of its allocation that it
does not use for administration under Sec. 300.620-300.621 --

(1) For support services and direct services in accordance
with the priority requirements of Sec. 300.320-300.324; and

(2) For the administrative costs of the State's monitoring
activities and complaint investigations, to the extent that these
costs exceed the administrative costs for monitoring and
complaint investigations incurred during fiscal year 1985.

(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 of Sec. 300.380-
300.383, recruitment and training of hearing officers and
surrogate parents, and public information and parent training
activities relating to FAPE for children with disabilities.
(Authority: 20 U.S.C. 1411(b)(2), (c)(2))

Sec. 300.371 State matching.

Beginning with the period July 1, 1978-June 30, 1979, and
for each following fiscal year, the funds that a State uses for
direct and support services under Sec. 300.370 must be matched on
a
program basis by the State from funds other than Federal funds.
This requirement does not apply to funds that the State uses
under Sec. 300.360.
(Authority: 20 U.S.C. 1411(c)(2)(B), (c)(4)(B))

Note: The requirement in Sec. 300.371 would be satisfied if the
State can document that the amount of State funds expended for
each major program area (e.g., the comprehensive system of
personnel development) is at least equal to the expenditure of
Federal funds in that program area.

Sec. 300.372 Applicability of nonsupplanting requirement.

Beginning with funds appropriated for fiscal year 1979 and
for each following fiscal year, the requirement in section
613(a)(9) of the Act, which prohibits supplanting with Federal
funds, does not apply to funds that the State uses from its
allocation under Sec. 300.706(a) for administration, direct
services,
or support services.
(Authority: 20 U.S.C. 1411(c)(3))


COMPREHENSIVE SYSTEM OF PERSONNEL DEVELOPMENT

Sec. 300.380 General.

Each State shall --

(a) Develop and implement a comprehensive system of personnel
development that --

(1) Is consistent with the purposes of the Act and with the
comprehensive system of personnel development described in 34 CFR
Sec. 303.360;

(2) Meets the requirements in Sec. 300.381-300.383; and

(3) Is consistent with the provisions on personnel standards in
Sec. 300.153; and

(b) Include in its State plan a description of the personnel
development system required in paragraph (a)(1) of this section.
(Authority: 20 U.S.C. 1413(a)(3), (a)(14))

Sec. 300.381 Adequate supply of qualified personnel.

Each State plan must include a description of the procedures and
activities the State will undertake to ensure an adequate supply
of qualified personnel (as the term "qualified" is defined at
Sec. 300.15), including special education and related services
personnel and leadership personnel, necessary to carry out the
purposes of this part. The procedures and activities must
include the development, updating, and implementation of a plan
that --

(a) Addresses current and projected special education and
related services personnel needs, including the need for
leadership personnel; and

(b) Coordinates and facilitates efforts among SEA and LEAs,
institutions of higher education, and professional associations
to recruit, prepare, and retain qualified personnel, including
personnel from minority backgrounds, and personnel with
disabilities.
(Authority: 20 U.S.C. 1413(a)(3)(A))

Sec. 300.382 Personnel preparation and continuing education.

Each State plan must include a description of the procedures and
activities the State will undertake to ensure that all personnel
necessary to carry out this part are appropriately and adequately
prepared. The procedures and activities must
include --

(a) A system for the continuing education of regular and special
education and related services personnel to enable these
personnel to meet the needs of children with disabilities under
this part;

(b) Procedures for acquiring and disseminating to teachers,
administrators, and related services personnel significant
knowledge derived from education research and other sources; and

(c) Procedures for adopting, if appropriate, promising
practices, materials, and technology, proven effective through
research and demonstration.
(Authority: 20 U.S.C. 1413(a)(3)(B))

Sec. 300.383 Data system on personnel and personnel development.

(a) General. The procedures and activities required in
Sec. 300.381 and 300.382 must include the development and
maintenance of a system for determining, on an annual basis, the
data required in paragraphs (b) and (c) of this section.

(b) Data on qualified personnel.

(1) The system required by
paragraph (a) of this section must enable each State to
determine, on an annual basis --

(i) The number and type of personnel, including leadership
personnel, employed in the provision of special education and
related services, by profession or discipline;

(ii) The number and type of personnel who are employed with
emergency, provisional, or temporary certification in each
profession or discipline who do not hold appropriate State
certification, licensure, or other credentials comparable to
certification or licensure for that profession or discipline; and

(iii) The number and type of personnel, including leadership
personnel, in each profession or discipline needed, and a
projection of the numbers of those personnel that will be needed
in five years, based on projections of individuals to be served,
retirement and other departures of personnel from the field, and
other relevant factors.

(2) The data on special education and related services personnel
required in paragraph (b)(1) of this section must include
audiologists, counselors, diagnostic and evaluation personnel,
home-hospital teachers, interpreters for students with hearing
impairments including deafness, occupational therapists, physical
education teachers, physical therapists, psychologists,
rehabilitation counselors, social workers, speech-language
pathologists, teacher aides, recreation and therapeutic
recreation specialists, vocational education teachers, work-study
coordinators, and other instructional and noninstructional staff.

(3) The data on leadership personnel required by paragraph
(b)(1) of this section must include administrators and
supervisors of State or local agencies who are involved in the
provision or supervision of services or activities necessary to
carry out the purposes of this part.

(c) Data on personnel development. The system required in
paragraph (a) of this section must enable each State to
determine, on an annual basis, the institutions of higher
education within the State that are preparing special education
and related services personnel, including leadership personnel,
by area of specialization, including --

(1) The numbers of students enrolled in programs for the
preparation of special education and related services personnel
administered by these institutions of higher education; and

(2) The numbers of students who graduated during the past year
with certification or licensure, or with credentials to qualify
for certification or licensure, from programs for the preparation
of special education and related services personnel administered
by institutions of higher education.
(Authority: 20 U.S.C. 1413(a)(3)(A))

Sec. 300.384-300.387 [Reserved].


Subpart D--Private Schools
CHILDREN WITH DISABILITIES IN PRIVATE
SCHOOLS PLACED OR REFERRED BY
PUBLIC AGENCIES

Sec. 300.400 Applicability of Sec. 300.400-300.402.

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. 1413(a)(4)(B))

Sec. 300.401 Responsibility of State educational agency.

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 Sec. 300.340-300.350;

(2) At no cost to the parents; and

(3) At a school or facility that meets the standards that
apply to the SEA and LEAs (including the requirements of this
part); and

(b) Has all of the rights of a child with a disability who
is served by a public agency.
(Authority: 20 U.S.C. 1413(a)(4)(B))

Sec. 300.402 Implementation by State educational agency.
In implementing Sec. 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. 1413(a)(4)(B))

Sec. 300.403 Placement of children by parents.

(a) If a child with a disability has FAPE available and the
parents choose to place the child in a private school or
facility, the public agency is not required by this part to pay
for the child's education at the private school or facility.
However, the public agency shall make services available to the
child as provided under Sec. 300.450-300.452.

(b) 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 Sec. 300.500-300.515.
(Authority: 20 U.S.C. 1412(2)(B); 1415)


CHILDREN WITH DISABILITIES ENROLLED BY THEIR
PARENTS IN PRIVATE SCHOOLS

Sec. 300.450 Definition of "private school children with
disabilities."

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 Sec. 300.400-300.402.
(Authority: 20 U.S.C. 1413(a)(4)(A))

Sec. 300.451 State educational agency responsibility.

The SEA shall ensure that --

(a) To the extent consistent with their number and location
in the State, provision is made for the participation of private
school children with disabilities in the program assisted or
carried out under this part by providing them with special
education and related services; and

(b) The requirements of 34 CFR Sec. 76.651-76.662 are met.
(Authority: 20 U.S.C. 1413(a)(4)(A))
Sec. 300.452 Local educational agency responsibility.

Each LEA shall provide special education and related
services designed to meet the needs of private school children
with disabilities residing in the jurisdiction of the agency.
(Authority: 20 U.S.C. 1413(a)(4)(A); 1414(a)(6))


PROCEDURES FOR BY-PASS

Sec. 300.480 By-pass -- general.

(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 this part, as required by
section 613(a)(4)(A) of the Act and by Sec. 300.451-300.452.

(b) The Secretary waives the requirement of section
613(a)(4)(A) of the Act and of Sec. 300.451-300.452 if the
Secretary
implements a by-pass.
(Authority: 20 U.S.C. 1413(d)(1))

Sec. 300.481 Provisions for services under a by-pass.

(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 613(a)(4)(A) of the
Act, Sec. 300.451-300.452, and 34 CFR Sec. 76.651-76.662.

(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 613(a)(4)(A) of the
Act and Sec. 300.451-300.452 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 this part 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 Sec. 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
this part 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. 1413(d)(2))


DUE PROCESS PROCEDURES
Source: Sections 300.482 through 300.486 appear at 49 FR
48526, Dec. 12, 1984, unless otherwise noted.

Sec. 300.482 Notice of intent to implement a by-pass.

(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. 1413(d)(3)(A))

Sec. 300.483 Request to show cause.

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. 1413(d)(3)(A))

Sec. 300.484 Show cause hearing.

(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. 1413(d)(3)(A))

Sec. 300.485 Decision.

(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. 1413(d)(3)(A))

Sec. 300.486 Judicial review.
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 613(d)(3)(B)-(D) of the
Act.
(Authority: 20 U.S.C. 1413(d)(3)(B)-(D))


Subpart E -- Procedural Safeguards
DUE PROCESS PROCEDURES FOR PARENTS AND CHILDREN

Sec. 300.500 Definitions of "consent," "evaluation," and
"personally
identifiable."

(a) As used in this part: "Consent" means that --

(1) 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;

(2) 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

(3) The parent understands that the granting of consent is
voluntary on the part of the parent and may be revoked at any
time.

(b) "Evaluation" means procedures used in accordance with
Sec. 300.530-300.534 to determine whether a child has a
disability
and the nature and extent of the special education and related
services that the child needs. The term means procedures used
selectively with an individual child and does not include basic
tests administered to or procedures used with all children in a
school, grade, or class.

(c) "Personally identifiable" means that information
includes --

(1) The name of the child, the child's parent, or other
family member;

(2) The address of the child;

(3) A personal identifier, such as the child's social
security number or student number; or

(4) 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, 1417(c))

Sec. 300.501 General responsibility of public agencies.

Each SEA shall ensure that each public agency establishes
and implements procedural safeguards that meet the requirements
of Sec. 300.500-300.515.
(Authority: 20 U.S.C. 1415(a))

Sec. 300.502 Opportunity to examine records.

The parents of a child with a disability shall be afforded,
in accordance with the procedures of Sec. 300.562-300.569, an
opportunity to inspect and review all education records with
respect to --

(a) The identification, evaluation, and educational
placement of the child; and

(b) The provision of FAPE to the child.
(Authority: 20 U.S.C. 1415(b)(1)(A))

Sec.  300.503Independent educational evaluation.

(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, on
request, information about where an independent educational
evaluation may be obtained.

(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.

(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 Sec. 300.301.

(b) Parent right to evaluation at public expense. 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. However, the public agency may initiate a
hearing under Sec. 300.506 to show that its evaluation is
appropriate. If the final decision is that the evaluation is
appropriate, the parent still has the right to an independent
educational evaluation, but not at public expense.


(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 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. Whenever an independent 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
which the public agency uses when it initiates an evaluation.
(Authority: 20 U.S.C. 1415(b)(1)(A))

Sec. 300.504 Prior notice; parent consent.

(a) Notice. Written notice that meets the requirements of
Sec. 300.505 must be given to the parents of a child with a
disability a reasonable time before the public agency --

(1) Proposes to initiate or change the identification,
evaluation, or educational placement of the child or the
provision of FAPE to the child; or

(2) Refuses to initiate or change the identification,
evaluation, or educational placement of the child or the
provision of FAPE to the child.

(b) Consent; procedures if a parent refuses consent.

(1) Parental consent must be obtained before --

(i) Conducting a preplacement evaluation; and

(ii) Initial placement of a child with a disability in a
program providing special education and related services.

(2) If State law requires parental consent before a child
with a disability is evaluated or initially provided special
education and related services, State procedures govern the
public agency in overriding a parent's refusal to consent.

(3) If there is no State law requiring consent before a
child with a disability is evaluated or initially provided
special education and related services, the public agency may use
the hearing procedures in Sec. 300.506-300.508 to determine if
the
child may be evaluated or initially provided special education
and related services without parental consent. If it does so and
the hearing officer upholds the agency, the agency may evaluate
or initially provide special education and related services to
the child without the parent's consent, subject to the parent's
rights under Sec. 300.510-300.513.

(c) Additional State consent requirements. In addition to the
parental consent requirements described in paragraph (b) 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.

(d) Limitation. A public agency may not require parental
consent as a condition of any benefit to the parent or the child
except for the service or activity for which consent is required
under paragraphs (b) or (c) of this section.
(Authority: 20 U.S.C. 1415(b)(1)(C), (D); 1412(2), (6))

Note 1: Any changes in a child's special education program
after the initial placement are not subject to the parental
consent requirements in paragraph (b)(1) of this section, but are
subject to the prior notice requirement in paragraph (a) of this
section and the IEP requirements of Sec. 300.340-300.350.

Note 2: Paragraph (b)(2) of this section means that if
State law requires parental consent before evaluation or before
special education and related services are initially provided,
and the parent refuses (or otherwise withholds) consent, State
procedures, such as obtaining a court order authorizing the
public agency to conduct the evaluation or provide the education
and related services, must be followed.
If, however, there is no legal requirement for consent
outside of these regulations, the public agency may use the due
process procedures of Sec. 300.506-300.508 to obtain a decision
to
allow the evaluation or services without parental consent. The
agency must notify the parent of its actions, and the parent has
appeal rights as well as rights at the hearing itself.

Note 3: If a State adopts a consent requirement in addition to
those described in paragraph (b) of this section and consent is
refused, paragraph (d) of this section requires that the public
agency must nevertheless provide the services and activities that
are not in dispute. For example, if a State requires parental
consent to the provision of all services identified in an IEP and
the parent refuses to consent to physical therapy services
included in the IEP, the agency is not relieved of its obligation
to implement those portions of the IEP to which the parent
consents.

If the parent refuses to consent and the public agency determines
that the service or activity in dispute is necessary to provide
FAPE to the child, paragraph (c) requires that the agency must
implement its procedures to override the refusal. This section
does not preclude the agency from reconsidering its proposal if
it believes that circumstances warrant.

Sec. 300.505 Content of notice.

(a) The notice under Sec. 300.504 must include --

(1) A full explanation of all of the procedural safeguards
available to the parents under Sec. 300.500, Sec.
300.502-300.515, and
Sec. 300.562-300.569;

(2) A description of the action proposed or refused by the
agency, an explanation of why the agency proposes or refuses to
take the action, and a description of any options the agency
considered and the reasons why those options were rejected;

(3) A description of each evaluation procedure, test,
record, or report the agency uses as a basis for the proposal or
refusal; and

(4) A description of any other factors that are relevant to
the agency's proposal or refusal.

(b) The notice must be --

(1) Written in language understandable to the general
public; and

(2) 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.

(c) If the native language or other mode of communication
of the parent is not a written language, the SEA or LEA shall
take steps to ensure --

(1) That the notice is translated orally or by other means
to the parent in his or her native language or other mode of
communication;

(2) That the parent understands the content of the notice;
and

(3) That there is written evidence that the requirements in
paragraphs (c)(1) and (2) of this section have been met.
(Authority: 20 U.S.C. 1415(b)(1)(D))

Sec. 300.506 Impartial due process hearing.

(a) A parent or a public educational agency may initiate a
hearing on any of the matters described in Sec. 300.504(a)(1) and
(2).

(b) The hearing 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) The public agency shall inform the parent of any free
or low-cost legal and other relevant services available in the
area if --

(1) The parent requests the information; or

(2) The parent or the agency initiates a hearing under this
section.
(Authority: 20 U.S.C. 1415(b)(2))

Note: Many States have pointed to the success of using
mediation as an intervening step prior to conducting a formal due
process hearing. Although the process of mediation is not
required by the statute or these regulations, an agency may wish
to suggest mediation in disputes concerning the identification,
evaluation, and educational placement of children with
disabilities, and the provision of FAPE to those children.
Mediations have been conducted by members of SEAs or LEA
personnel who were not previously involved in the particular
case. In many cases, mediation leads to resolution of
differences between parents and agencies without the development
of an adversarial relationship and with minimal emotional stress.
However, mediation may not be used to deny or delay a parent's
rights under Sec. 300.500-300.515.

Sec. 300.507 Impartial hearing officer.

(a) A hearing may not be conducted --

(1) By a person who is an employee of a public agency 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. 1414(b)(2))

Sec. 300.508 Hearing rights.

(a) Any party to a hearing 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 five
days before the hearing.

(4) Obtain a written or electronic verbatim record of the
hearing.

(5) Obtain written findings of fact and decisions. The public
agency, after deleting any personally identifiable information,
shall --

(i) Transmit those findings and decisions to the State advisory
panel established under Sec. 300.650; and

(ii) Make those findings and decisions available to the public.

(b) Parents involved in hearings must be given the right
to --

(1) Have the child who is the subject of the hearing
present; and

(2) Open the hearing to the public.
(Authority: 20 U.S.C. 1415(d))

Sec. 300.509 Hearing decision; appeal.

A decision made in a hearing conducted under Sec. 300.506 is
final, unless a party to the hearing appeals the decision under
Sec. 300.510 or Sec. 300.511.
(Authority: 20 U.S.C. 1415(c))

Sec. 300.510 Administrative appeal; impartial review.

(a) If the hearing 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.

(b) If there is an appeal, the SEA shall conduct an
impartial review of the hearing. The official conducting the
review shall:

(1) Examine the entire hearing record.

(2) Ensure that the procedures at the hearing were
consistent with the requirements of due process.

(3) Seek additional evidence if necessary. If a hearing is
held to receive additional evidence, the rights in 300.508 apply.

(4) Afford the parties an opportunity for oral or written
argument, or both, at the discretion of the reviewing official.

(5) Make an independent decision on completion of the
review.

(6) Give a copy of written findings and the decision to the
parties.

(c) The SEA, after deleting any personally identifiable
information, shall --

(1) Transmit the findings and decisions referred to in paragraph
(b)(6)
of this section to the State advisory panel established
under Sec. 300.650; and

(2) Make those findings and decisions available to the public.

(d) The decision made by the reviewing official is final unless
a party brings a civil action under Sec. 300.511.
(Authority: 20 U.S.C. 1415(c), (d); H. R. Rep. No. 94-664, at p.
49 (1975))

Note 1: The SEA may conduct its review either directly or
through another State agency acting on its behalf. However, the
SEA remains responsible for the final decision on review.

Note 2: All parties have the right to continue to be
represented by counsel at the State administrative review level,
whether or not the reviewing official determines that a further
hearing is necessary. If the reviewing official decides to hold
a hearing to receive additional evidence, the other rights in
Sec. 300.508 relating to hearings also apply.

Sec. 300.511 Civil action.

Any party aggrieved by the findings and decision made in a
hearing who does not have the right to appeal under Sec. 300.510,
and
any party aggrieved by the decision of a reviewing officer under
Sec. 300.510, has the right to bring a civil action under section
615(e)(2) of the Act.
(Authority: 20 U.S.C. 1415)
Sec. 300.512 Timelines and convenience of hearings and reviews.

(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)

Sec. 300.513 Child's status during proceedings.

(a) During the pendency of any administrative or judicial
proceeding regarding a complaint, unless the public agency and
the parents of the child agree otherwise, the child involved in
the complaint must remain in his or her present 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 program until the
completion of all the proceedings.
(Authority: 20 U.S.C. 1415(e)(3))

Note: Section 300.513 does not permit a child's placement to be
changed during a complaint proceeding, unless the parents and
agency agree otherwise. While the placement may not be changed,
this does not preclude the agency from using its normal
procedures for dealing with children who are endangering
themselves or others.

Sec. 300.514 Surrogate parents.

(a) General. Each public agency shall ensure that the
rights of a child are protected when --

(1) No parent (as defined in Sec. 300.13) 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) Public agencies shall ensure that a person selected as
a surrogate --

(i) Has no interest that conflicts with the interest of the
child he or she represents; and

(ii) Has knowledge and skills that ensure adequate
representation of the child.

(d) Non-employee requirement; compensation. (1) A person
assigned as a surrogate may not be an employee of a public agency
that is involved in the education or care of the child.

(2) A person who otherwise qualifies to be a surrogate
parent under paragraphs (c) and (d)(1) 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)(1)(B))

Sec. 300.515 Attorneys' fees.

Each public agency shall inform parents that in any action or
proceeding under section 615 of the Act, courts may award parents
reasonable attorneys' fees under the circumstances described in
section 615(e)(4) of the Act.
(Authority: 20 U.S.C. 1415(b)(1)(D); 1415(e)(4))

PROTECTION IN EVALUATION PROCEDURES

Sec. 300.530 General.

(a) Each SEA shall ensure that each public agency
establishes and implements procedures that meet the requirements
of Sec. 300.530-300.534.

(b) Testing and evaluation materials and procedures used
for the purposes of evaluation and placement of children with
disabilities must be selected and administered so as not to be
racially or culturally discriminatory.
(Authority: 20 U.S.C. 1412(5)(C))

Sec. 300.531 Preplacement evaluation.

Before any action is taken with respect to the initial
placement of a child with a disability in a program providing
special education and related services, a full and individual
evaluation of the child's educational needs must be conducted in
accordance with the requirements of Sec. 300.532.
(Authority: 20 U.S.C. 1412(5)(C))

Sec. 300.532 Evaluation procedures.

State educational agencies and LEAs shall ensure, at a
minimum, that:

(a) Tests and other evaluation materials --

(1) Are provided and administered in the child's native
language or other mode of communication, unless it is clearly not
feasible to do so;

(2) Have been validated for the specific purpose for which
they are used; and

(3) Are administered by trained personnel in conformance
with the instructions provided by their producer.

(b) 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.

(c) Tests are selected and administered so as best to
ensure that when 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 (except where those skills are the factors that the test
purports to measure).

(d) No single procedure is used as the sole criterion for
determining an appropriate educational program for a child.

(e) The evaluation is made by a multidisciplinary team or
group of persons, including at least one teacher or other
specialist with knowledge in the area of suspected disability.

(f) 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.
(Authority: 20 U.S.C. 1412(5)(C))

Note: Children who have a speech or language impairment as
their primary disability may not need a complete battery of
assessments (e.g., psychological, physical, or adaptive
behavior). However, a qualified speech-language pathologist
would

(1) evaluate each child with a speech or language
impairment using procedures that are appropriate for the
diagnosis and appraisal of speech and language impairments, and

(2) if necessary, make referrals for additional assessments
needed to make an appropriate placement decision.

Sec. 300.533 Placement procedures.

(a) In interpreting evaluation data and in making placement
decisions, each public agency shall --

(1) Draw upon information from a variety of sources,
including aptitude and achievement tests, teacher
recommendations, physical condition, social or cultural
background, and adaptive behavior;

(2) Ensure that information obtained from all of these
sources is documented and carefully considered;

(3) Ensure that the placement decision is made by a group
of persons, including persons knowledgeable about the child, the
meaning of the evaluation data, and the placement options; and

(4) Ensure that the placement decision is made in
conformity with the LRE rules in Sec. 300.550-300.554.

(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
Sec. 300.340-300.350.
(Authority: 20 U.S.C. 1412(5)(C); 1414(a)(5))

Note: Paragraph (a)(1) of this sectionincludes a list of
examples of sources that may be used by a public agency in making
placement decisions. The agency would not have to use all the
sources in every instance. The point of the requirement is to
ensure that more than one source is used in interpreting
evaluation data and in making placement decisions. For example,
while all of the named sources would have to be used for a child
whose suspected disability is mental retardation, they would not
be necessary for certain other children with disabilities, such
as a child who has a severe articulation impairment as his
primary disability. For such a child, the speech-language
pathologist, in complying with the multiple source requirement,
might use

(1) a standardized test of articulation, and

(2)
observation of the child's articulation behavior in
conversational speech.

Sec. 300.534 Reevaluation.

Each SEA and LEA shall ensure --

(a) That the IEP of each child with a disability is
reviewed in accordance with Sec. 300.340-300.350; and

(b) That an evaluation of the child, based on procedures
that meet the requirements of Sec. 300.532, is conducted every
three
years, or more frequently if conditions warrant, or if the
child's parent or teacher requests an evaluation.
(Authority: 20 U.S.C. 1412(5)(c))


ADDITIONAL PROCEDURES FOR EVALUATING
CHILDREN WITH SPECIFIC LEARNING
DISABILITIES

Sec. 300.540 Additional team members.

In evaluating a child suspected of having a specific
learning disability, in addition to the requirements of Sec.
300.532,
each public agency shall include on the multidisciplinary
evaluation team --

(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 psycho-
logist, speech-language pathologist, or remedial reading teacher.
(Authority: 20 U.S.C. 1411 note)

Sec. 300.541 Criteria for determining the existence of a specific
learning disability.

(a) A team may determine that a child has a specific
learning disability if --

(1) The child does not achieve commensurate with his or her
age and ability levels in one or more of the areas listed in
paragraph (a)(2) of this section, when 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; or

(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: 20 U.S.C. 1411 note)

Sec. 300.542 Observation.

(a) At least one team member other than the child's regular
teacher shall observe the child's academic performance in the
regular classroom setting.

(b) In the case of a child of less than school age or out
of school, a team member shall observe the child in an
environment appropriate for a child of that age.
(Authority: 20 U.S.C. 1411 note)

Sec. 300.543 Written report.

(a) The team shall prepare a written report of the results
of the evaluation.

(b) The report 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.

(c) 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: 20 U.S.C. 1411 note)


LEAST RESTRICTIVE ENVIRONMENT

Sec. 300.550 General.

(a) Each SEA shall ensure that each public agency
establishes and implements procedures that meet the requirements
of Sec. 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 when 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(5)(B); 1414(a)(1)(C)(iv))

Sec. 300.551 Continuum of alternative placements.

(a) Each public agency shall ensure that a continuum of
alternative placements is available to meet the needs of children
with disabilities for special education and related services.

(b) The continuum required in paragraph (a) of this section
must --

(1) Include the alternative placements listed in the
definition of special education under Sec. 300.17 (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(5)(B))

Sec. 300.552 Placements.

Each public agency shall ensure that:

(a) The educational placement of each child with a
disability --

(1) Is determined at least annually;

(2) Is based on his or her IEP; and

(3) Is as close as possible to the child's home.

(b) The various alternative placements included at Sec. 300.551
are available to the extent necessary to implement the IEP for
each child with a disability.

(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.
(Authority: 20 U.S.C. 1412(5)(B))
Note: Section 300.552 includes some of the main factors
that must be considered in determining the extent to which a
child with a disability can be educated with children who are
nondisabled. The overriding rule in this section is that
placement decisions must be made on an individual basis. The
section also requires each agency to have various alternative
placements available in order to ensure that each child with a
disability receives an education that is appropriate to his or
her individual needs.
The requirements of Sec. 300.552, as well as the other
requirements of Sec. 300.550-300.556, apply to all preschool
children with disabilities who are entitled to receive FAPE.
Public agencies that provide preschool programs for nondisabled
preschool children must ensure that the requirements of
Sec. 300.552(c) are met. Public agencies that do not operate
programs for nondisabled preschool children are not required to
initiate such programs solely to satisfy the requirements
regarding placement in the LRE embodied in Sec. 300.550-300.556.
For these public agencies, some alternative methods for meeting
the requirements of Sec. 300.550-300.556 include --

(1) Providing opportunities for the participation (even
part-time) of preschool children with disabilities in other
preschool programs operated by public agencies (such as Head
Start);

(2) Placing children with disabilities in private school
programs for nondisabled preschool children or private school
preschool programs that integrate children with disabilities and
nondisabled children; and

(3) Locating classes for preschool children with
disabilities in regular elementary schools.
In each case the public agency must ensure that each child's
placement is in the LRE in which the unique needs of that child
can be met, based upon the child's IEP, and meets all of the
other requirements of Sec. 300.340-300.350 and Sec.
300.550-300.556.
The analysis of the regulations for Section 504 of the
Rehabilitation Act of 1973 (34 CFR part 104 -- Appendix,
Paragraph 24) includes several points regarding educational
placements of children with disabilities that are pertinent to
this section:

1. With respect to determining proper placements, the
analysis states: ``*** it should be stressed that, where a
handicapped child is so disruptive in a regular classroom that
the education of other students is significantly impaired, the
needs of the handicapped child cannot be met in that environment.
Therefore regular placement would not be appropriate to his or
her needs ***.''

2. With respect to placing a child with a disability in an
alternate setting, the analysis states that among the factors to
be considered in placing a child is the need to place the child
as close to home as possible. Recipients are required to take
this factor into account in making placement decisions. The
parents' right to challenge the placement of their child extends
not only to placement in special classes or separate schools, but
also to placement in a distant school, particularly in a
residential program. An equally appropriate education program
may exist closer to home; and this issue may be raised by the
parent under the due process provisions of this subpart.

Sec. 300.553 Nonacademic settings.

In providing or arranging for the provision of nonacademic
and extracurricular services and activities, including meals,
recess periods, and the services and activities set forth in
Sec. 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(5)(B))

Note: Section 300.553 is taken from a requirement in the
final regulations for Section 504 of the Rehabilitation Act of
1973. With respect to this requirement, the analysis of the
Section 504 Regulations includes the following statement: ``[This
paragraph] specifies that handicapped children must also be
provided nonacademic services in as integrated a setting as
possible. This requirement is especially important for children
whose educational needs necessitate their being solely with other
handicapped children during most of each day. To the maximum
extent appropriate, children in residential settings are also to
be provided opportunities for participation with other
children.'' (34 CFR Part 104 -- Appendix, Paragraph 24.)

Sec. 300.554 Children in public or private institutions.

Each SEA shall make arrangements with public and private
institutions (such as a memorandum of agreement or special
implementation procedures) as may be necessary to ensure that
Sec. 300.550 is effectively implemented.
(Authority: 20 U.S.C. 1412(5)(B))

Note: Under section 612(5)(B) of the statute, the
requirement to educate children with disabilities with
nondisabled children also applies to children in public and
private institutions or other care facilities. Each SEA must
ensure that each applicable agency and institution in the State
implements this requirement. Regardless of other reasons for
institutional placement, no child in an institution who is
capable of education in a regular public school setting may be
denied access to an education in that setting.

Sec. 300.555 Technical assistance and training activities.
Each SEA shall carry out activities to ensure that teachers
and administrators in all public agencies --

(a) Are fully informed about their responsibilities for
implementing Sec. 300.550; and

(b) Are provided with technical assistance and training
necessary to assist them in this effort.
(Authority: 20 U.S.C. 1412(5)(B))

Sec. 300.556 Monitoring activities.

(a) The SEA shall carry out activities to ensure that
Sec. 300.550 is implemented by each public agency.

(b) If there is evidence that a public agency makes
placements that are inconsistent with Sec. 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(5)(B))


CONFIDENTIALITY OF INFORMATION

Sec. 300.560 Definitions.

As used in Sec. 300.560-300.576 --
"Destruction" means physical destruction or removal of
personal identifiers from information so that the information is
no longer personally identifiable.
"Education records" means the type of records covered under
the definition of education records in Part 99 of this title (the
regulations implementing the Family Educational Rights and
Privacy Act of 1974).
"Participating agency" means any agency or institution that
collects, maintains, or uses personally identifiable information,
or from which information is obtained, under this part.
(Authority: 20 U.S.C. 1412(2)(D); 1417(c))

Sec. 300.561 Notice to parents.

(a) The SEA shall give notice that is adequate to fully
inform parents about the requirements of Sec. 300.128, 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 Part 99 of this title.

(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(2)(D); 1417(c))

Sec. 300.562 Access rights.

(a) Each participating agency shall permit parents to
inspect and review any education records relating to their
children that are collected, maintained, or used by the agency
under this part. The agency shall comply with a request without
unnecessary delay and before any meeting regarding an IEP or any
hearing relating to the identification, evaluation, or
educational placement of the child, or the provision of FAPE to
the child, 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(2)(D); 1417(c))

Sec. 300.563 Record of access.

Each participating agency shall keep a record of parties
obtaining access to education records collected, maintained, or
used under this part (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(2)(D); 1417(c))

Sec. 300.564 Records on more than one child.

If any education record includes information on more than
one child, the parents of those children shall 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(2)(D); 1417(c))

Sec. 300.565 List of types and locations of information.

Each participating agency shall provide parents on request a
list of the types and locations of education records collected,
maintained, or used by the agency.
(Authority: 20 U.S.C. 1412(2)(D); 1417(c))

Sec. 300.566 Fees.

(a) Each participating agency may charge a fee for copies
of records that are made for parents under this part if the fee
does not effectively prevent the parents from exercising their
right to inspect and review those records.

(b) A participating agency may not charge a fee to search
for or to retrieve information under this part.
(Authority: 20 U.S.C. 1412(2)(D); 1417(c))

Sec. 300.567 Amendment of records at parent's request.

(a) A parent who believes that information in the education
records collected, maintained, or used under this part is
inaccurate or misleading or violates the privacy or other rights
of the child may request the participating agency that maintains
the information to amend the information.

(b) The agency shall decide whether to amend the
information in accordance with the request within a reasonable
period of time of receipt of the request.

(c) If the agency decides to refuse to amend the
information in accordance with the request, it shall inform the
parent of the refusal, and advise the parent of the right to a
hearing under Sec. 300.568.
(Authority: 20 U.S.C. 1412(2)(D); 1417(c))

Sec. 300.568 Opportunity for a hearing.

The agency shall, on request, provide an opportunity for a
hearing to challenge information in education records to ensure
that it is not inaccurate, misleading, or otherwise in violation
of the privacy or other rights of the child.
(Authority: 20 U.S.C. 1412(2)(D); 1417(c))

Sec. 300.569 Result of hearing.

(a) If, as a result of the hearing, the agency decides that
the information is inaccurate, misleading or otherwise in
violation of the privacy or other rights of the child, it shall
amend the information accordingly and so inform the parent in
writing.

(b) If, as a result of the hearing, the agency decides that
the information is not inaccurate, misleading, or otherwise in
violation of the privacy of 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(2)(D); 1417(c))

Sec. 300.570 Hearing procedures.

A hearing held under Sec. 300.568 must be conducted according to
the procedures under Sec. 99.22 of this title.
(Authority: 20 U.S.C. 1412(2)(D); 1417(c))

Sec. 300.571 Consent.

(a) 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 Part 99
of this title may not release information from education records
to participating agencies without parental consent unless
authorized to do so under Part 99 of this title.

(c) The SEA shall include policies and procedures in its
State plan that are used in the event that a parent refuses to
provide consent under this section.
(Authority: 20 U.S.C. 1412(2)(D); 1417(c))

Sec. 300.572 Safeguards.

(a) Each participating agency shall protect the
confidentiality of personally identifiable information at
collection, storage, disclosure, and destruction stages.

(b) One official at each participating agency shall assume
responsibility for ensuring the confidentiality of any personally
identifiable information.

(c) All persons collecting or using personally identifiable
information must receive training or instruction regarding the
State's policies and procedures under Sec. 300.129 and Part 99 of
this title.

(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(2)(D); 1417(c))

Sec. 300.573 Destruction of information.

(a) The public agency shall inform parents when personally
identifiable information collected, maintained, or used under
this part is no longer needed to provide educational services to
the child.

(b) The information must be destroyed at the request of the
parents. However, a permanent record of a student's name,
address, and phone number, his or her grades, attendance record,
classes attended, grade level completed, and year completed may
be maintained without time limitation.
(Authority: 20 U.S.C. 1412(2)(D); 1417(c))

Note: Under Sec. 300.573, the personally identifiable
information on a child with a disability may be retained
permanently unless the parents request that it be destroyed.
Destruction of records is the best protection against improper
and unauthorized disclosure. However, the records may be needed
for other purposes. In informing parents about their rights
under this section, the agency should remind them that the
records may be needed by the child or the parents for social
security benefits or other purposes. If the parents request that
the information be destroyed, the agency may retain the
information in paragraph (b) of this section.
Sec. 300.574 Children's rights.
The SEA shall include policies and procedures in its State
plan 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.
(Authority: 20 U.S.C. 1412(2)(D); 1417(c))

Note: 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.

Sec. 300.575 Enforcement.

The SEA shall describe in its State plan 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(2)(D); 1417(c))


Sec. 300.576 Department.

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 shall apply the requirements of 5
U.S.C. section 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 Part 5b of this
title.
(Authority: 20 U.S.C. 1412(2)(D); 1417(c))


DEPARTMENT PROCEDURES

Sec. 300.580 [Reserved]

Sec. 300.581 Disapproval of a State plan.

Before disapproving a State plan, the Secretary gives the
SEA written notice and an opportunity for a hearing.
(Authority: 20 U.S.C. 1413(c))

Sec. 300.582 Content of notice.

(a) In the written notice, the Secretary --

(1) States the basis on which the Secretary proposes to
disapprove the State plan;

(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 calendar
days after it receives the notice of proposed disapproval; and

(4) Provides information about the procedures followed for
a hearing.

(b) The Secretary sends the written notice to the SEA by
certified mail with return receipt requested.
(Authority: 20 U.S.C. 1413(c))

Sec. 300.583 Hearing official or panel.

(a) If the SEA requests a hearing, the Secretary designates
one or more individuals, either from the Department or elsewhere,
not responsible for or connected with the administration of this
program, to conduct a hearing.

(b) If more than one individual is designated, the
Secretary designates one of those individuals as the Chief
Hearing Official of the Hearing Panel. If one individual is
designated, that individual is the Hearing Official.
(Authority: 20 U.S.C. 1413(c))

Sec. 300.584 Hearing procedures.

(a) As used in Sec. 300.581-300.586 the term "party or
parties" means the following:

(1) An SEA that requests a hearing regarding the proposed
disapproval of its State plan under this part.

(2) The Department of Education 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 calendar 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 counsel --

(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. 1413(c))

Sec. 300.585 Initial decision; final decision.

(a) The Hearing Official or Panel prepares an initial
written decision that addresses each of the points in the notice
sent by the Secretary to the SEA under Sec. 300.582.

(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
calendar 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 calendar 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
calendar 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
calendar days after notifying the Hearing Official or Panel that
the initial decision is being further reviewed.

Sec. 300.586 Judicial review.

If a State is dissatisfied with the Secretary's final action
with respect to its State plan, the State may, within 60 calendar
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.
(Authority: 20 U.S.C. 1416(b)(1))


Sec. 300.587-300.588 [Reserved]

Sec. 300.589 Waiver of requirement regarding supplementing and
supplanting with Part B funds.

(a) Under sections 613(a)(9)(B) and 614(a)(2)(B)(ii) of the
Act, SEAs and LEAs must ensure that Federal funds provided under
this part are 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 this part and in no case to supplant those
Federal, State, and local funds. The nonsupplanting requirement
applies only to funds allocated to LEAs (See Sec. 300.372).

(b) If the State provides clear and convincing evidence
that all children with disabilities have FAPE available to them,
the Secretary may waive in part the requirement under sections
613(a)(9)(B) and 614(a)(2)(B)(ii) of the Act if the Secretary
concurs with the evidence provided by the State.

(c) If a State wishes to request a waiver, it must inform
the Secretary in writing. The Secretary then provides the State
with a finance and membership report form that provides the basis
for the request.

(d) In its request for a waiver, the State shall include
the results of a special study made by the State to obtain
evidence of the availability of FAPE to all children with
disabilities. The special study must include statements by a
representative sample of organizations that deal with children
with disabilities, and parents and teachers of children with
disabilities, relating to the following areas --

(1) The adequacy and comprehensiveness of the State's
system for identifying, locating, and evaluating children with
disabilities;

(2) The cost to parents, if any, for education for children
enrolled in public and private day schools, and in public and
private residential schools and institutions; and

(3) The adequacy of the State's due process procedures.

(e) In its request for a waiver, the State shall include
finance data relating to the availability of FAPE for all
children with disabilities, including --

(1) The total current expenditures for regular education
programs and special education programs by function and by source
of funds (State, local, and Federal) for the previous school
year; and

(2) The full-time equivalent membership of students
enrolled in regular programs and in special programs in the
previous school year.

(f) The Secretary considers the information that the State
provides under paragraphs (d) and (e) of this section, along with
any additional information he may request, or obtain through
on-site reviews of the State's education programs and records, to
determine if all children have FAPE available to them, and if so,
the extent of the waiver.

(g) The State may request a hearing with regard to any
final action by the Secretary under this section.
(Authority: 20 U.S.C. 1411(c)(3); 1413(a)(9)(B))


Subpart F -- State Administration
GENERAL

Sec. 300.600 Responsibility for all educational programs.

(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 public 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) This part may not be construed to 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.
(Authority: 20 U.S.C. 1412(6))

Note: The requirement in Sec. 300.600(a) is taken essentially
verbatim from section 612(6) of the statute and reflects the
desire of the Congress for a central point of responsibility and
accountability in the education of children with disabilities
within each State. With respect to SEA responsibility, the
Senate Report on Pub. L. 94-142 includes the following
statements:
This provision is included specifically to assure a single
line of responsibility with regard to the education of
handicapped children, and to assure that in the implementation of
all provisions of this Act and in carrying out the right to
education for handicapped children, the State educational agency
shall be the responsible agency ***.
Without this requirement, there is an abdication of
responsibility for the education of handicapped children.
Presently, in many States, responsibility is divided, depending
upon the age of the handicapped child, sources of funding, and
type of services delivered. While the Committee understands that
different agencies may, in fact, deliver services, the
responsibility must remain in a central agency overseeing the
education of handicapped children, so that failure to deliver
services or the violation of the rights of handicapped children
is squarely the responsibility of one agency. (S. Rep. No. 94-
168, p. 24 (1975))
In meeting the requirements of this section, there are a
number of acceptable options that may be adopted, including the
following:

(1) Written agreements are developed between respective
State agencies concerning SEA standards and monitoring. These
agreements are binding on the local or regional counterparts of
each State agency.

(2) The Governor's Office issues an administrative
directive establishing the SEA responsibility.

(3) State law, regulation, or policy designates the SEA as
responsible for establishing standards for all educational
programs for individuals with disabilities, and includes
responsibility for monitoring.

(4) State law mandates that the SEA is responsible for all
educational programs.

Sec. 300.601 Relation of Part B to other Federal programs.

This part 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. 1413(e))


USE OF FUNDS

Sec. 300.620 Federal funds for State administration.

A State may use five percent of the total State allotment in
any fiscal year under Part B of the Act, or $450,000, whichever
is greater, for administrative costs related to carrying out
sections 612 and 613 of the Act. However, this amount cannot be
greater than twenty-five percent of the State's total allotment
for the fiscal year under Part B of the Act.
(Authority: 20 U.S.C. 1411(b), (c))

Sec. 300.621 Allowable costs.

(a) The SEA may use funds under Sec. 300.620 for --

(1) Administration of the State plan 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 this part;

(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
Sec. 300.620 in accordance with Sec. 300.370.
(Authority: 20 U.S.C. 1411(b), (c))

STATE ADVISORY PANEL

Sec. 300.650 Establishment.

(a) Each State shall establish, in accordance with the
provisions of Sec. 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 Sec. 300.652, the State may modify the
existing panel so that it fulfills all of the requirements of

Sec. 300.650-300.653, instead of establishing a new advisory
panel.
(Authority: 20 U.S.C. 1413(a)(12))

Sec. 300.651 Membership.

(a) The membership of the State advisory panel must be
composed of persons involved in or concerned with the education
of children with disabilities. The membership must include at
least one person representative of each of the following
groups --

(1) Individuals with disabilities;

(2) Teachers of children with disabilities;

(3) Parents of children with disabilities;

(4) State and local educational officials; and

(5) Special education program administrators.

(b) The State may expand the advisory panel to include
additional persons in the groups listed in paragraph (a) of this
section and representatives of other groups not listed.
(Authority: 20 U.S.C. 1413(a)(12))

Note: The membership of the State advisory panel, as listed
in paragraphs (a)(1)-(5) of this section, is required in section
613(a)(12) of the Act. As indicated in paragraph (b) of this
section, the composition of the panel and the number of members
may be expanded at the discretion of the State. In adding to the
membership, consideration could be given to having --

(1) An appropriate balance between professional groups and
consumers (i.e., parents, advocates, and individuals with
disabilities);

(2) Broad representation within the consumer-advocate
groups, to ensure that the interests and points of view of
various parents, advocates and individuals with disabilities are
appropriately represented;

(3) Broad representation within professional groups (e.g.,
regular education personnel: special educators, including
teachers, teacher trainers, and administrators, who can properly
represent various dimensions in the education of children with
disabilities; and appropriate related services personnel); and

(4) Representatives from other State advisory panels (such
as vocational education).
If a State elects to maintain a small advisory panel (e.g.,
10-15 members), the panel itself could take steps to ensure that
it

(1) consults with and receives inputs from various consumer
and special interest professional groups, and

(2) establishes
committees for particular short-term purposes composed of
representatives from those input groups.

Sec. 300.652 Advisory panel functions.

The State advisory panel shall --

(a) Advise the SEA of unmet needs within the State in the
education of children with disabilities;

(b) Comment publicly on the State plan and rules or
regulations proposed for issuance by the State regarding the
education of children with disabilities and the procedures for
distribution of funds under this part; and

(c) Assist the State in developing and reporting such
information and evaluations as may assist the Secretary in the
performance of his responsibilities under section 618 of the Act.
(Authority: 20 U.S.C. 1413(a)(12))

Sec. 300.653 Advisory panel procedures.

(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 this part.

(c) Official minutes must be kept on all panel meetings and
shall be made available to the public on request.

(d) All advisory panel meetings and agenda items must be
publicly announced prior to the meeting, and 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 Sec. 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 Sec. 300.620 for this purpose.
(Authority: 20 U.S.C. 1413(a)(12))


STATE COMPLAINT PROCEDURES

Sec. 300.660 Adoption of State complaint procedures.

Each SEA shall adopt written procedures for:

(a) Resolving any complaint that meets the requirements of
Sec. 300.662 by --

(1) Providing for the filing of a complaint with the SEA; and

(2) 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.

(b) Informing parents and other interested individuals
about the procedures in Sec. 300.660-300.662.
(Authority: 20 U.S.C. 2831(a))

Sec. 300.661 Minimum State complaint procedures.

Each SEA shall include the following in its complaint procedures:

(a) A time limit of 60 calendar days after a complaint is filed
under Sec. 300.660(a) to --

(1) Carry out an independent on-site investigation, if the SEA
determines that such 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) An extension of the time limit under paragraph (a) of this
section only if exceptional circumstances exist with respect to a
particular complaint.

(c) Procedures for effective implementation of the SEA's final
decision, if needed, including technical assistance activities,
negotiations, and corrective actions to achieve compliance.

(d) The right of the complainant or the public agency to request
the Secretary to review the SEA's final decision.
(Authority: 20 U.S.C. 2831(a))

Sec. 300.662 Filing a complaint.

An organization or individual may file a signed written
complaint under the procedures described in Sec. 300.600-300.661.
The complaint must include --

(a) A statement that a public agency has violated a requirement
of Part B of the Act or of this part; and

(b) The facts on which the statement is based.
(Authority: 20 U.S.C. 2831(a))


Subpart G -- Allocation of Funds; Reports

ALLOCATIONS

Sec. 300.700 Special definition of the term State.

For the purposes of Sec. 300.701, Sec. 300.702, and Sec. 300.704-
300.708, the term "State" does not include Guam, American Samoa,
the Virgin Islands, the Commonwealth of the Northern Mariana
Islands, the Federated States of Micronesia, the Republic of the
Marshall Islands, or Palau.
(Authority: 20 U.S.C. 1411(a)(2))

Sec. 300.701 State entitlement; formula.
(a) The Secretary calculates the maximum amount of the
grant to which a State is entitled under section 611 of the Act
in any fiscal year as follows:

(1) If the State is eligible for a grant under section 619
of the Act, the maximum entitlement is equal to the number of
children with disabilities aged 3 through 21 in the State who are
receiving special education and related services, multiplied by
40 percent of the average per pupil expenditure in public
elementary and secondary schools in the United States.

(2) If the State is not eligible for a grant under section
619 of the Act, the maximum entitlement is equal to the number of
children with disabilities aged 6 through 21 in the State who are
receiving special education and related services, multiplied by
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)(1))

(b) [Reserved]

(c) For the purposes of this section, the "average per
pupil expenditure in public elementary and secondary schools in
the United States," means the aggregate expenditures during the
second fiscal year preceding the fiscal year for which the
computation is made (or if satisfactory data for that year are
not available at the time of computation, then during the most
recent preceding fiscal year for which satisfactory data are
available) of all LEAs in the United States (which, for the
purpose of this section, means the 50 States and the District of
Columbia), plus any direct expenditures by the State for
operation of those agencies (without regard to the source of
funds from which either of those expenditures are made), divided
by 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(a)(4))

Sec. 300.702 Limitations and exclusions.

(a) In determining the amount of a grant under Sec. 300.701:

(1) If a State serves all children with disabilities aged 3
through 5 in the State, the Secretary does not count children
with disabilities aged 3 through 17 in the State to the extent
that the number of those children is greater than 12 percent of
the number of all children aged 3 through 17 in the State.

(2) If a State does not serve all children with
disabilities aged 3 through 5 in the State, the Secretary does
not count children with disabilities aged 5 through 17 to the
extent that the number of those children is greater than 12
percent of the number of all children aged 5 through 17 in the
State.

(3) The Secretary does not count children with disabilities who
are counted under Subpart 2 of Part D of Chapter 1 of Title I of
the Elementary and Secondary Education Act of 1965.

(b) For the purposes of paragraph (a) of this section, the
number of children aged 3 through 17 and 5 through 17 in
any State is determined by the Secretary on the basis of the most
recent satisfactory data available.
(Authority: 20 U.S.C. 1411(a)(5))

Sec. 300.703 Ratable reductions.

(a) General. If the sums appropriated for any fiscal year
for making payments to States under section 611 of the Act are
not sufficient to pay in full the total amounts that all States
are entitled to receive for that fiscal year, the maximum amount
that all States are entitled to receive for that fiscal year
shall be ratably reduced. In case additional funds become
available for making payments for any fiscal year during which
the preceding sentence is applicable, those reduced amounts shall
be increased on the same basis they were reduced.
(Authority: 20 U.S.C. 1411(g)(1))

(b) Reporting dates for Local educational agencies and
reallocations.

(1) In any fiscal year that the State entitlement
has been ratably reduced, and that additional funds have not been
made available to pay in full the total of the amounts under
paragraph (a) of this section, the SEA shall fix dates before
which each LEA shall report to the State the amount of funds
available to it under this part that it estimates it will expend.

(2) The amounts available under paragraph (a) of this
section, or any amount that would be available to any other LEA
if it were to submit an application meeting the requirements of
this part, that the SEA determines will not be used for the
period of its availability shall be available for allocation to
those LEAs, in the manner provided in Sec. 300.707, that the SEA
determines will need and be able to use additional funds to carry
out approved programs.
(Authority: 20 U.S.C. 1411(g)(2))

Sec. 300.704 Hold harmless provision.

No State shall receive less than the amount it received
under Part B of the Act for fiscal year 1977.
(Authority: 20 U.S.C. 1411(a)(1))

Sec. 300.705 Allocation for State in which by-pass is
implementedfor
private school children with disabilities.

In determining the allocation under Sec. 300.700-300.703 of a
State in which the Secretary will implement a by-pass for private
school children with disabilities under Sec. 300.451-300.486, 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 Sec. 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. 1411(a)(1)(A), 1411(a)(3), 1413(d))

Sec. 300.706 Within-State distribution: fiscal year 1979 and
after.

Of the funds received under Sec. 300.701 by any State for fiscal
year 1979, and for each fiscal year after fiscal year 1979 --

(a) 25 percent may be used by the State in accordance with
Sec. 300.620 and Sec. 300.370; and

(b) 75 percent shall be distributed to the LEAs in the
State in accordance with Sec. 300.707.
(Authority: 20 U.S.C. 1411(c)(1))

Sec. 300.707 Local educational agency entitlement; formula.

From the total amount of funds available to all LEAs, each
LEA is entitled to an amount that bears the same ratio to the
total amount as the number of children with disabilities aged 3
through 21 in that agency who are receiving special education and
related services bears to the aggregate number of children with
disabilities aged 3 through 21 receiving special education and
related services in all LEAs that apply to the SEA for funds
under Part B of the Act.
(Authority: 20 U.S.C. 1411(d))

Sec. 300.708 Reallocation of local educational agency funds.

If an SEA determines that an LEA is adequately providing
FAPE to all children with disabilities residing in the area
served by the local agency with State and local funds otherwise
available to the local agency, the SEA may reallocate funds (or
portions of those funds that are not required to provide special
education and related services) made available to the local
agency under Sec. 300.707, to other LEAs within the State that
are
not adequately providing special education and related services
to all children with disabilities residing in the areas served by
the other LEAs.
(Authority: 20 U.S.C. 1414(e))

Sec.  300.709 Payments to the Secretary of the Interior for the
education of Indian children.

(a) General.

(1) The Secretary makes payments to the Secretary
of the Interior to meet the need for assistance for the education
of children with disabilities on reservations, aged 5 through
21, who are enrolled in elementary and secondary schools
for Indian children operated or funded by the Secretary of the
Interior.

(2) In the case of Indian students aged 3 through 5 who are
enrolled in programs affiliated with Bureau of Indian Affairs
(BIA) schools that are required by the States in which the
schools are located to attain or maintain State accreditation
and had State accreditation prior to October 7, 1991, the schools
may count those children for the purpose of distribution of the
funds provided under paragraph (a)(1) of this section to the
Secretary of the Interior.

(3) The amount of the payment under paragraph (a)(1) of this
section for any fiscal year is one percent of the aggregate
amounts available to all States under this part for that fiscal
year.

(b) Responsibility for meeting the requirements of Part B. The
Secretary of the Interior shall be responsible for meeting all of
the requirements of Part B of the Act for the children described
in paragraph (a) of this section, in accordance with Sec.
300.260.
(Authority: 20 U.S.C. 1411(f))

Sec. 300.710 Payments to the Secretary of the Interior for Indian
tribes or tribal organizations.


(a) General.

(1) Beginning with funds appropriated under Part B
of the Act for fiscal year 1992, the Secretary, subject to this
section, 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 consortiums 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.

(2) The amount of the payment under paragraph (b)(1) of this
section for any fiscal year is .25 percent of the aggregate
amounts available for all States under this part for that fiscal
year.

(3) 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.

(b) Distribution of funds. The Secretary of the Interior shall
distribute the total amount of the .25 percent under paragraph
(a)
of this section in accordance with section 611(f)(4) of the
Act.
(Authority: 20 U.S.C. 1411(f))

Sec. 300.711 Entitlements to jurisdictions.

(a) The jurisdictions to which this section applies are
Guam, American Samoa, the Virgin Islands, the Commonwealth of the
Northern Mariana Islands, the Federated States of Micronesia, the
Republic of the Marshall Islands, and Palau, (until the Compact
of Free Association with Palau takes effect pursuant to section
101(a) of Pub. L. 99-658).

(b) Each jurisdiction under paragraph (a) of this section
is entitled to a grant for the purposes set forth in section
601(c) of the Act. The amount to which those jurisdictions are
so entitled for any fiscal year shall not exceed an amount equal
to 1 percent of the aggregate of the amounts available to all
States under this part for that fiscal year. Funds appropriated
for those jurisdictions shall be allocated proportionately among
them on the basis of the number of children aged 3 through 21 in
each jurisdiction. However, no jurisdiction shall receive less
than $150,000, and other allocations shall be ratably reduced if
necessary to ensure that each jurisdiction receives at least that
amount.

(c) The amount expended for administration by each
jurisdiction under this section shall not exceed 5 percent of the
amount allotted to the jurisdiction for any fiscal year, or
$35,000, whichever is greater.
(Authority: 20 U.S.C. 1411(e))


REPORTS

Sec. 300.750 Annual report of children served -- report
requirement.

(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.
(Authority: 20 U.S.C. 1411(a)(3))
(b) The SEA shall submit the report on forms provided by
the Secretary.
(Authority: 20 U.S.C. 1411(a)(3))

Note: It is very important to understand that this report
and the requirements that relate to it are solely for allocation
purposes. The population of children the State may count for
allocation purposes may differ from the population of children to
whom the State must make FAPE available. For example, while
section 611(a)(5) of the Act limits the number of children who
may be counted for allocation purposes to 12 percent of the
general school population aged 3 through 17 (in States that serve
all children with disabilities aged 3 through 5) or 5 through 17
(in States that do not serve all children with disabilities aged
3 through 5), a State might find that 14 percent (or some other
percentage) of its children have disabilities. In that case, the
State must make FAPE available to all of those children with
disabilities.

Sec. 300.751 Annual report of children served -- information
required in the report.

(a) In its report, the SEA shall include a table that
shows --

(1) The number of children with disabilities receiving
special education and related services on December 1 of that
school year;

(2) The number of children with disabilities aged 3 through 5
who are receiving FAPE;

(3) The number of those children with disabilities aged 6
through 21 within each disability category, as defined in the
definition of "children with disabilities" in Sec. 300.7; and

(4) The number of those children with disabilities aged 3
through 21 for each year of age (3, 4, 5, etc.).

(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.

(c) The SEA may not report a child aged 6 through 21 under
more than one disability category.

(d) If a child with a disability aged 6 through 21 has more
than one disability, the SEA shall report that child in
accordance with the following procedure:

(1) A child with deaf-blindness must be reported under the
category "deaf-blindness."

(2) A child who has more than one disability (other than
deaf-blindness) must be reported under the category "multiple
disabilities."
(Authority: 20 U.S.C. 1411(a)(3); (5)(A)(ii); 1418(b))

Sec. 300.752 Annual report of children served -- certification.

The SEA shall include in its report a certification signed
by an authorized official of the agency that the information
provided 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(a)(3); 1417(b))

Sec. 300.753 Annual report of children served -- criteria for
counting children.

(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 either --

(1) Provides them with both special education and related
services; or

(2) Provides them only with special education if they do
not need related services to assist them in benefitting from that
special education.

(b) The SEA may not include children with disabilities in
its report who --

(1) Are not enrolled in a school or program operated or
supported by a public agency;

(2) Are not provided special education that meets State
standards;

(3) Are not provided with a related service that they need
to assist them in benefitting from special education;

(4) Are counted by a State agency under Subpart 2 of Part D
of Chapter 1 of Title I of the Elementary and Secondary Education
Act of 1965; or

(5) Are receiving special education funded solely by the
Federal Government. However, the State may count children
covered under Sec. 300.186(b).
(Authority: 20 U.S.C. 1411(a)(3); 1417(b))

Note 1: Under paragraph (a) of this section, the State may
count children with disabilities in a Head Start or other
preschool program operated or supported by a public agency if
those children are provided special education that meets State
standards.

Note 2: Special education, by statutory definition, must be
at no cost to parents. As of September 1, 1978, under the FAPE
requirement, both special education and related services must be
at no cost to parents.
There may be some situations, however, where a child
receives special education from a public source at no cost, but
whose parents pay for the basic or regular education. This child
may be counted. The Department expects that there would only be
limited situations where special education would be clearly
separate from regular education -- generally, where speech
services is the only special education required by the child.
For example, the child's parents may have enrolled the child in a
regular program in a private school, but the child might be
receiving speech services in a program funded by the LEA.
Allowing these children to be counted will provide incentives (in
addition to complying with the legal requirement in section
613(a)(4)(A) of the Act regarding private schools) to public
agencies to provide services to children enrolled by their
parents in private schools, since funds are generated in part on
the basis of the number of children provided special education
and related services. Agencies should understand, however, that
if a public agency places or refers a child with a disability to
a public or private school for educational purposes, special
education includes the entire educational program provided to the
child. In that case, parents may not be charged for any part of
the child's education.
A State may not count Indian children on or near
reservations and children on military facilities if it provides
them no special education. If an SEA or LEA is responsible for
serving these children, and does provide them special education
and related services, they may be counted.

Sec. 300.754 Annual report of children served -- other
responsibilities of the State educational agency.

In addition to meeting the other requirements of Sec. 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
Sec. 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
Sec. 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(a)(3); 1417(b))

Note: States should note that the data required in the
annual report of children served are not to be transmitted to the
Secretary in personally identifiable form. States are encouraged
to collect these data in non-personally identifiable form.

Appendix A to Part 300 -- [Reserved]

Appendix B to Part 300 -- [Reserved]


Appendix C to Part 300 -- Notice of Interpretation

I. Purpose of the IEP

II. IEP Requirements

Sec. 300.340 Definition

Sec. 300.341 State educational agency responsibility

1. Who is responsible for ensuring the development of IEPs
for children with disabilities served by a public agency other
than an LEA?

2. For a child placed out of State by a public agency, is
the placing or receiving State responsible for the child's IEP?

Sec. 300.342 When individualized education programs must be in
effect

3. In requiring that an IEP be in effect before special
education and related services are provided, what does "be in
effect" mean?

4. How much of a delay is permissible between the time an
IEP of a child with a disability is finalized and when special
education is provided?

5. For a child with a disability receiving special
education for the first time, when must an IEP be developed --
before placement or after placement?

6. If a child with a disability has been receiving special
education in one LEA and moves to another community, must the new
LEA hold an IEP meeting before the child is placed in a special
education program?

Sec. 300.343 Meetings

7. What is the purpose of the 30 day timeline in

Sec. 300.343(c)?
8. Must the agency hold a separate meeting to determine a
child's eligibility for special education and related services,
or can this step be combined with the IEP meeting?

9. Must IEPs be reviewed or revised at the beginning of
each school year?

10. How frequently must IEP meetings be held and how long
should they be?

11. Who can initiate IEP meetings?

12. May IEP meetings be tape-recorded?

Sec. 300.344 Participants in meetings
(Agency representative)

13. Who can serve as the representative of the public
agency at an IEP meeting?

14. Who is the representative of the public agency if a
child with a disability is served by a public agency other than
the SEA or LEA?
(The child's teacher)

15. For a child with a disability being considered for
initial placement in special education, which teacher should
attend the IEP meeting?

16. If a child with a disability is enrolled in both
regular and special education classes, which teacher should
attend the IEP meeting?

17. If a child with a disability in high school attends
several regular classes, must all of the child's regular teachers
attend the IEP meeting?

18. If a child's primary disability is a speech impairment,
must the child's regular teacher attend the IEP meeting?

19. If a child is enrolled in a special education class
because of a primary disability and also receives speech-language
pathology services, must both specialists attend the IEP meeting?
(The child, parents, other individuals)

20. When may representatives of teacher organizations
attend IEP meetings?

21. When may a child with a disability attend an IEP
meeting?

22. Do the parents of a student with a disability retain
the right to attend the IEP meeting when the student reaches the
age of majority?
23. Must related services personnel attend IEP meetings?

24. Are agencies required to use a case manager in the
development of an IEP for a child with a disability?

25. For a child with a suspected speech impairment, who
must represent the evaluation team at the IEP meeting?

Sec. 300.345 Parent participation

26. What is the role of the parents at an IEP meeting?

27. What is the role of a surrogate parent at an IEP
meeting?

28. Must the public agency let the parents know who will be
at the IEP meeting?

29. Are parents required to sign IEPs?

30. If the parent signs the IEP, does the signature
indicate consent for initial placement?

31. Do parents have the right to a copy of their child's
IEP?

32. Must parents be informed at the IEP meeting of their
right to appeal?

33. Does the IEP include ways for parents to check the
progress of their children?

34. Must IEPs include specific checkpoint intervals for
parents to confer with teachers and to revise or update their
children's IEPs?

35. If the parents and agency are unable to reach agreement
at an IEP meeting, what steps should be followed until agreement
is reached?

Sec. 300.346 Content of the individualized education program
(Present levels of educational performance)

36. What should be included in the statement of the child's
present levels of educational performance?
(Annual goals and short term instructional objectives)

37. Why are goals and objectives required in the IEP?

38. What are annual goals in an IEP?

39. What are short term instructional objectives in an IEP?

40. Should the IEP goals and objectives focus only on
special education and related services, or should they relate to
the total education of the child?

41. Should there be a relationship between the goals and
objectives in the IEP and those that are in the instructional
plans of special education personnel?

42. When must IEP objectives be written -- before placement
or after placement?

43. Can short term instructional objectives be changed
without initiating another IEP meeting?
(Specific special education and related services)

44. Must the IEP include all special education and related
services needed by the child or only those available from the
public agency?

45. Is the IEP a commitment to provide services -- i.e.,
must a public agency provide all of the services listed in the
IEP?

46. Must the public agency itself directly provide the
services set out in the IEP?

47. Does the IEP include only special education and related
services or does it describe the total education of the child?

48. If modifications are necessary for a child with a
disability to participate in a regular education program, must
they be included in the IEP?

49. When must physical education (PE) be described or
referred to in an IEP?

50. If a child with a disability is to receive vocational
education, must it be described or referred to in the student's
IEP?

51. Must the IEP specify the amount of services or may it
simply list the services to be provided?

52. Must an IEP for a child with a disability indicate the
extent that the child will be educated in the regular educational
program?
(Projected dates/Evaluation)

53. Can the anticipated duration of services be for more
than twelve months?

54. Must the evaluation procedures and schedules be
included as a separate item in the IEP?
(Other IEP content questions)

55. Is it permissible for an agency to have the IEP
completed when the IEP meeting begins?

56. Is there a prescribed format or length for an IEP?

57. Is it permissible to consolidate the IEP with the
individualized service plan developed under another Federal
program?

58. What provisions on confidentiality of information apply
to IEPs?

Sec. 300.348 Private school placements by Public Agencies

59. If placement decisions are made at the time the IEP is
developed, how can a private school representative attend the
meeting?

Sec. 300.349 Children with Disabilities Enrolled in Parochial or
Other Private Schools

Sec. 300.350 Individualized education programs -- accountability

60. Is the IEP a performance contract?
Authority: Part B of the Individuals with Disabilities Education
Act (20 U.S.C. 1411-1420), unless otherwise noted.
Individualized Education Programs (IEPs)
Interpretation of Requirements of Part B of the Individuals with
Disabilities Education Act

I. Purpose of the IEP

There are two main parts of the IEP requirement, as
described in the Act and regulations:

(1) The IEP meeting(s),
where parents and school personnel jointly make decisions about
an educational program for a child with a disability, and

(2) the
IEP document itself, that is, a written record of the decisions
reached at the meeting. The overall IEP requirement, comprised
of these two parts, has a number of purposes and functions:

a. The IEP meeting serves as a communication vehicle
between parents and school personnel, and enables them, as equal
participants, to jointly decide what the child's needs are, what
services will be provided to meet those needs, and what the
anticipated outcomes may be.

b. The IEP process provides an opportunity for resolving
any differences between the parents and the agency concerning the
special education needs of a child with a disability; first,
through the IEP meeting, and second, if necessary, through the
procedural protections that are available to the parents.

c. The IEP sets forth in writing a commitment of resources
necessary to enable a child with a disability to receive needed
special education and related services.

d. The IEP is a management tool that is used to ensure that
each child with a disability is provided special education and
related services appropriate to the child's special learning
needs.

e. The IEP is a compliance/monitoring document that may be
used by authorized monitoring personnel from each governmental
level to determine whether a child with a disability is actually
receiving the FAPE agreed to by the parents and the school.

f. The IEP serves as an evaluation device for use in
determining the extent of the child's progress toward meeting the
projected outcomes.

Note: The Act does not require that teachers or other
school personnel be held accountable if a child with a disability
does not achieve the goals and objectives set forth in the IEP.
See Sec. 300.350, Individualized education program --
accountability.


II. IEP Requirements

This part

(1) repeats the IEP requirements in Sec. 300.340-
300.350 of the regulations (boxed material),

(2) provides
additional clarification, as necessary, on sections or paragraphs
of the regulations on which such clarification is needed, and

(3)
answers some questions regarding implementation of the IEP
requirements that are not expressly addressed in the regulations.
These questions and clarifying information are presented in a
question and answer format immediately after the particular
section of the regulations that is presented. Insert illus.
01763


1. Who is responsible for ensuring the development of IEPs for
children with disabilities served by a public agency other than
an LEA?

The answer will vary from State to State, depending upon
State law, policy, or practice. In each State, however, the SEA
is ultimately responsible for ensuring that each agency in the
State is in compliance with the IEP requirements and the other
provisions of the Act and regulations. (See Sec. 300.600
regarding
SEA responsibility for all education programs.)
The SEA must ensure that every child with a disability in
the State has FAPE available, regardless of which agency, State
or local, is responsible for the child. While the SEA has
flexibility in deciding the best means to meet this obligation
(e.g., through interagency agreements), there can be no failure
to provide FAPE due to jurisdictional disputes among agencies.

Note: Section 300.2(b) states that the requirements of the
Act and regulations apply to all political subdivisions of the
State that are involved in the education of children with
disabilities, including

(1) the SEA,

(2) LEAs,

(3) other State
agencies (such as Departments of Mental Health and Welfare, and
State schools for students with deafness or students with
blindness), and

(4) State correctional facilities.

The following paragraphs outline

(1) some of the SEA's
responsibilities for developing policies or agreements under a
variety of interagency situations, and

(2) some of the
responsibilities of an LEA when it initiates the placement of a
child with a disability in a school or program operated by
another State agency:
a. SEA POLICIES OR INTERAGENCY AGREEMENTS. The SEA,
through its written policies or agreements, must ensure that IEPs
are properly written and implemented for all children with
disabilities in the State. This applies to each interagency
situation that exists in the State, including any of the
following:

(1) When an LEA initiates the placement of a child in a
school or program operated by another State agency (see
``LEA-Initiated Placements'' in paragraph ``b'', below);

(2) when
a State or local agency other than the SEA or LEA places a child
in a residential facility or other program;

(3) when parents
initiate placements in public institutions; and
(4) when the
courts make placements in correctional facilities.

Note: This is not an exhaustive list. The SEA's policies
must cover any other interagency situation that is applicable in
the State, including placements that are made for both
educational and for non-educational purposes.
Frequently, more than one agency is involved in developing
or implementing an IEP of a child with a disability (e.g., when
the LEA remains responsible for the child, even though another
public agency provides the special education and related
services, or when there are shared cost arrangements). It is
important that SEA policies or agreements define the role of each
agency involved in the situations described above, in order to
resolve any jurisdictional problems that could delay the
provision of FAPE to a child with a disability. For example, if
a child is placed in a residential facility, any one or all of
the following agencies might be involved in the development
and/or implementation of the child's IEP: The child's LEA, the
SEA, another State agency, an institution or school under that
agency, and the LEA where the institution is located.

Note: The SEA must also ensure that any agency involved in
the education of a child with a disability is in compliance with
the LRE provisions of the Act and regulations, and, specifically,
with the requirement that the placement of each child with a
disability

(1) be determined at least annually,

(2) be based on
the child's IEP, and

(3) be as close as possible to the child's
home (Sec. 300.552(a), Placements.)

b. LEA - INITIATED PLACEMENTS. When an LEA is responsible
for the education of a child with a disability, the LEA is also
responsible for developing the child's IEP. The LEA has this
responsibility even if development of the IEP results in
placement in a State-operated school or program.

Note: The IEP must be developed before the child is placed.
(See Question 5, below.) When placement in a State-operated
school is necessary, the affected State agency or agencies must
be involved by the LEA in the development of the IEP. (See
response to Question 59, below, regarding participation of a
private school representative at the IEP meeting.)
After the child enters the State school, meetings to review
or revise the child's IEP could be conducted by either the LEA or
the State school, depending upon State law, policy, or practice.
However, both agencies should be involved in any decisions made
about the child's IEP (either by attending the IEP meetings, or
through correspondence or telephone calls). There must be a
clear decision, based on State law, as to whether responsibility
for the child's education is transferred to the State school or
remains with the LEA, since this decision determines which agency
is responsible for reviewing or revising the child's IEP.


2. For a child placed out of State by a public agency, is
the placing or receiving State responsible for the child's IEP?

The "placing" State is responsible for developing the
child's IEP and ensuring 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, as indicated in Question 1, above,
the SEA in the placing State is responsible for ensuring that the
child has FAPE available. Insert illus. 01766


3. In requiring that an IEP be in effect before special
education and related services are provided, what does "be in
effect" mean?

As used in the regulations, the term "be in effect" means
that the IEP

(1) has been developed properly (i.e., at a
meeting(s) involving all of the participants specified in the Act
(parent, teacher, agency representative, and, if appropriate, the
child));

(2) is regarded by both the parents and agency as
appropriate in terms of the child's needs, specified goals and
objectives, and the services to be provided; and

(3) will be implemented as written.


4. How much of a delay is permissible between the time an
IEP of a child with a disability is finalized and when special
education is provided?

In general, no delay is permissible. It is expected that
the special education and related services set out in a child's
IEP will be provided by the agency beginning immediately after
the IEP is finalized. The Note following Sec. 300.342 identifies
some exceptions

(1) when the meetings occur during the summer or
other vacation period, or

(2) when there are circumstances that
require a short delay, such as working out transportation
arrangements). However, unless otherwise specified in the IEP,
the IEP services must be provided as soon as possible following
the meeting.

Note: Section 300.346(e) requires that the IEP include the
projected dates for initiation of services.


5. For a child with a disability receiving special
education for the first time, when must an IEP be developed --
before placement or after placement?

An IEP must be in effect before special education and
related services are provided to a child. (Sec. 300.342(b)(1),
emphasis added.) The appropriate placement for a given child
with a disability cannot be determined until after decisions have
been made about what the child's needs are and what will be
provided. Since these decisions are made at the IEP meeting, it
would not be permissible to first place the child and then
develop the IEP. Therefore, the IEP must be developed before
placement. The above 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
aid in determining the most appropriate placement for the child.
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'', below.)

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 and making judgments about the most 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.

Note: Once the IEP of the child with a disability is in
effect and the child is placed in a special education program,
the teacher might develop detailed lesson plans or objectives
based on the IEP. However, these lesson plans and objectives are
not required to be a part of the IEP itself. (See Questions 37-
43, below, regarding IEP goals and objectives.)


6. If a child with a disability has been receiving special
education in one LEA and moves to another community, must the new
LEA hold an IEP meeting before the child is placed in a special
education program?

It would not be necessary for the new LEA to conduct an IEP
meeting 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 LEA 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 LEA or the parent believes that it is not appropriate, an IEP
meeting would have to be conducted. This meeting should take
place within a short time after the child enrolls in the new LEA
(normally, within one week).

Note: The child must be placed in a special education
program immediately after the IEP is finalized. (See Question 4,
above.)
If the LEA or the parents believe that additional
information is needed (e.g., the school records from the former
LEA) or that a new evaluation is necessary before a final
placement decision can be made, it would be permissible to
temporarily place the child in an interim program before the IEP
is finalized. (See Question 5, above.) Insert illus. 01768


7. What is the purpose of the 30 day timeline in
Sec. 300.343(c)?

The 30 day timeline in Sec. 300.343(c) ensures that there will
not be a significant delay between the time a child is evaluated
and when the child begins to receive special education. Once it
is determined -- through the evaluation -- that a child has a
disability, the public agency has up to 30 days to hold an IEP
meeting.

Note: See Questions 4 and 5, above, regarding finalization
of IEP and placement of the child.


8. Must the agency hold a separate meeting to determine a
child's eligibility for special education and related services,
or can this step be combined with the IEP meeting?

Paragraph (e) of Sec. 300.532 (Evaluation procedures) provides
that the evaluation of each child with a disability must be "made
by a multidisciplinary team or group of persons * * *''. The
decisions regarding

(1) whether the team members actually meet
together, and

(2) whether such meetings are separate from the IEP
meeting are matters that are left to the discretion of State or
local agencies.
In practice, some agencies hold separate eligibility
meetings with the multidisciplinary team before the IEP meeting.

Note: When separate meetings are conducted, placement
decisions would be made at the IEP meeting. However, placement
options could be discussed at the eligibility meeting.
Other agencies combine the two steps into one. If a
combined meeting is conducted, the public agency must include the
parents as participants at the meeting. (See Sec. 300.345 for
requirements on parent participation.)

Note: If, at a separate eligibility meeting, a decision is
made that a child is not eligible for special education, the
parents should be notified about the decision.


9. Must IEPs be reviewed or revised at the beginning of
each school year?

No. The basic requirement in the regulations is that IEPs
must be in effect at the beginning of each school year. Meetings
must be conducted at least once each year to review and, if
necessary, revise the IEP of each child with a disability.
However, the meetings may be held anytime during the year,
including

(1) at the end of the school year,

(2) during the
summer, before the new school year begins, or

(3) on the
anniversary date of the last IEP meeting on the child.


10. How frequently must IEP meetings be held and how long
should they be?

Section 614(a)(5) of the Act provides that each public
agency must hold meetings periodically, but not less than
annually, to review each child's IEP and, if appropriate, revise
its provisions. The legislative history of the Act 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))
There is no prescribed length for IEP meetings. In general,
meetings

(1) will be longer for initial placements and for
children who require a variety of complex services, and

(2) will
be shorter for continuing placements and for children who require
only a minimum amount of services. In any event, however, it is
expected that agencies will allow sufficient time at the meetings
to ensure meaningful parent participation.


11. Who can initiate IEP meetings?

IEP meetings are initiated and conducted at the discretion
of the public agency. However, if the parents of a child with a
disability 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. The public agency should grant any reasonable
request for such a meeting.

Note: Under Sec. 300.506(a), the parents or agency may initiate
a due process hearing at any time regarding any matter related to
the child's IEP.
If a child's teacher(s) feels that the child's placement or
IEP services are not appropriate to the child, the teacher(s)
should follow agency procedures with respect to

(1) calling or
meeting with the parents and/or

(2) requesting the agency to hold
another meeting to review the child's IEP.


12. May IEP meetings be tape-recorded?

The use of tape recorders at IEP meetings is not addressed
by either the Act or the regulations. Although taping is clearly
not required, it is permissible at the option of either the
parents or the agency. However, if the recording is maintained
by the agency, it 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 (34 CFR Sec. 300.560-300.575). Insert
illus. 01770


13. Who can serve as the representative of the public
agency at an IEP meeting?

The representative of the public agency could be any member
of the school staff, other than the child's teacher, who is
qualified to provide, or supervise the provision of, specially
designed instruction to meet the unique needs of children with
disabilities. (Section 602(a)(20) of the Act.) Thus, the agency
representative could be

(1) a qualified special education
administrator, supervisor, or teacher (including a
speech-language pathologist), or

(2) a school principal or other
administrator -- if the person is qualified to provide, or
supervise the provision of, special education.
Each State or local agency may determine which specific
staff member will serve as the agency representative. However,
the representative should be able to ensure that whatever
services are set out in the IEP will actually be provided and
that the IEP will not be vetoed at a higher administrative level
within the agency. Thus, the person selected should have the
authority to commit agency resources (i.e., to make decisions
about the specific special education and related services that
the agency will provide to a particular child).
For a child with a disability who requires only a limited
amount of special education, the agency representative able to
commit appropriate resources could be a special education
teacher, or a speech-language pathologist, other than the child's
teacher. For a child who requires extensive special education
and related services, the agency representative might need to be
a key administrator in the agency.
Note: IEP meetings for continuing placements could be more
routine than those for initial placements, and, thus, might not
require the participation of a key administrator.


14. Who is the representative of the public agency if a
child with a disability is served by a public agency other than
the SEA or LEA?

The answer depends on which agency is responsible, under
State law, policy, or practice, for any one or all of the
following:

(1) The child's education, (2) placing the child, and (3)
providing (or paying for the provision of) special education and
related services to the child.
In general, the agency representative at the IEP meeting
would be a member of the agency or institution that is
responsible for the child's education. For example, if a State
agency

(1) places a child in an institution,

(2) is responsible
under State law for the child's education, and

(3) has a
qualified special education staff at the institution, then a
member of the institution's staff would be the agency
representative at the IEP meetings.
Sometimes there is no special education staff at the
institution, and the children are served by special education
personnel from the LEA where the institution is located. In this
situation, a member of the LEA staff would usually serve as the
agency representative.

Note: In situations where the LEA places a child in an
institution, paragraph ``b'' of the response to Question 1,
above, would apply.


15. For a child with a disability being considered for
initial placement in special education, which teacher should
attend the IEP meeting?

The teacher could be either

(1) a teacher qualified to
provide special education in the child's area of suspected
disability, or

(2) the child's regular teacher. At the option of
the agency, both teachers could attend. In any event, there
should be at least one member of the school staff at the meeting
(e.g., the agency representative or the teacher) who is qualified
in the child's area of suspected disability.

Note: Sometimes more than one meeting is necessary in order
to finalize a child's IEP. If, in this process, the special
education teacher who will be working with the child is
identified, it would be useful to have that teacher participate
in the meeting with the parents and other members of the IEP team
in finalizing the IEP. When this is not possible, the agency
should ensure that the teacher is given a copy of the child's IEP
as soon as possible after the IEP is finalized and before the
teacher begins working with the child.


16. If a child with a disability is enrolled in both
regular and special education classes, which teacher should
attend the IEP meeting?

In general, the teacher at the IEP meeting should be the
child's special education teacher. At the option of the agency
or the parent, the child's regular teacher also might attend. If
the regular teacher does not attend, the agency should either
provide the regular teacher with a copy of the IEP or inform the
regular teacher of its contents. Moreover, the agency should
ensure that the special education teacher, or other appropriate
support person, is able, as necessary, to consult with and be a
resource to the child's regular teacher.

17. If a child with a disability in high school attends
several regular classes, must all of the child's regular teachers
attend the IEP meeting?

No. Only one teacher must attend. However, at the option
of the LEA, additional teachers of the child may attend. The
following points should be considered in making this decision:

a. Generally, the number of participants at IEP meetings
should be small. Small meetings have several advantages over
large ones. For example, they

(1) allow for more open, active
parent involvement,

(2) are less costly,

(3) are easier to
arrange and conduct, and

(4) are usually more productive.

b. While large meetings are generally inappropriate, there
may be specific circumstances where the participation of
additional staff would be beneficial. When the participation of
the regular teachers is considered by the agency or the parents
to be beneficial to the child's success in school (e.g., in terms
of the child's participation in the regular education program),
it would be appropriate for them to attend the meeting.

c. Although the child's regular teachers would not
routinely attend IEP meetings, they should either

(1) be informed
about the child's IEP by the special education teacher or agency
representative, and/or

(2) receive a copy of the IEP itself.


18. If a child's primary disability is a speech impairment,
must the child's regular teacher attend the IEP meeting?

No. A speech-language pathologist would usually serve as
the child's teacher for purposes of the IEP meeting. The regular
teacher could also attend at the option of the school.


19. If a child is enrolled in a special education class
because of a primary disability, and also receives
speech-language pathology services, must both specialists attend
the IEP meeting?

No. It is not required that both attend. The special
education teacher would attend the meeting as the child's
teacher. The speech-language pathologist could either

(1)
participate in the meeting itself, or

(2) provide a written
recommendation concerning the nature, frequency, and amount of
services to be provided to the child.


20. When may representatives of teacher organizations
attend IEP meetings?

Under the Family Educational Rights and Privacy Act '
(``FERPA''; 20 U.S.C. 1232g) and implementing regulations (34 CFR
Part 99) and the confidentiality requirements of Part B,
officials of teacher organizations may not attend IEP meetings if
personally identifiable information from the student's education
records is discussed -- except with the prior written consent of
the parents. (See 34 CFR Sec. 99.30(a)(1) and 300.571(a)(1).)
In addition, Part B does not provide for the participation
of representatives of teacher organizations at IEP meetings. The
legislative history of the Act makes it clear that attendance at
IEP meetings should be limited to those who have an intense
interest in the child. (121 Cong. Rec. S10974 (June 18, 1975)
(remarks of Sen. Randolph).) Since a representative of a teacher
organization would be concerned with the interests of the teacher
rather than the interests of the child, it would be inappropriate
for such an official to attend an IEP meeting.


21. When may a child with a disability attend an IEP
meeting?

Generally, a child with a disability should attend the IEP
meeting whenever the parent decides that it is appropriate for
the child to do so. Whenever 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 will be

(1) helpful in
developing the IEP and/or

(2) directly beneficial to the child.
The agency should inform the parents before each IEP meeting --
as part of the notice of meeting required under Sec. 300.345(b)
--
that they may invite their child to participate.
Note: The parents and agency should encourage older
children with disabilities (particularly those at the secondary
school level) to participate in their IEP meetings.

22. Do the parents of a student with a disability retain
the right to attend the IEP meeting when the student reaches the
age of majority?

The Act is silent concerning any modification of the rights
of the parents of a student with a disability when the student
reaches the age of majority.


23. Must related services personnel attend IEP meetings?

No. It is not required that they attend. However, 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. For example, when the child's evaluation
indicates the need for a specific related service (e.g., physical
therapy, occupational therapy, 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.

Note: This written recommendation could be a part of the
evaluation report.


24. Are agencies required to use a case manager in the
development of the IEP of a child with a disability?

No. However, some agencies have found it helpful to have a
special educator or some other school staff member (e.g., a
social worker, counselor, or psychologist) serve as coordinator
or case manager of the IEP process for an individual child or for
all children with disabilities served by the agency. Examples of
the kinds of activities that case managers might carry out are

(1) coordinating the multidisciplinary evaluation;

(2) collecting
and synthesizing the evaluation reports and other relevant
information about a child that might be needed at the IEP
meeting;

(3) communicating with the parents; and

(4) participating in, or conducting, the IEP meeting itself.


25. For a child with a suspected speech impairment, who
must represent the evaluation team at the IEP meeting?

No specific person must represent the evaluation team.
However, a speech-language pathologist would normally be the most
appropriate representative. For many children whose primary
disability is a speech impairment, there may be no other
evaluation personnel involved. The note following Sec. 300.532
(Evaluation procedures) states:
Children who have a speech impairment as their primary
disability may not need a complete battery of assessments (e.g.,
psychological, physical, or adaptive behavior). However, a
qualified speech-language pathologist would

(1) evaluate each
child with a speech impairment using procedures that are
appropriate for the diagnosis and appraisal of speech and
language impairments, and

(2) if necessary, make referrals for
additional assessments needed to make an appropriate placement
decision. Insert illus. 01775


26. What is the role of the parents at an IEP meeting? The

parents of a child with a disability are expected to be equal
participants along with school personnel, in developing,
reviewing, and revising the child's IEP. This is an active role
in which the parents

(1) participate in the discussion about the
child's need for special education and related services, and

(2)
join with the other participants in deciding what services the
agency will provide to the child.

Note: In some instances, parents might elect to bring
another participant to the meeting, e.g., a friend or neighbor,
someone outside of the agency who is familiar with applicable
laws and with the child's needs, or a specialist who conducted an
independent evaluation of the child.)


27. What is the role of a surrogate parent at an IEP
meeting?

A surrogate parent is a person appointed to represent the
interests of a child with a disability in the educational
decision-making process when that child has no other parent
representation. The surrogate has all of the rights and
responsibilities of a parent under Part B. Thus, the surrogate
parent is entitled to

(1) participate in the child's IEP meeting,

(2) see the child's education records, and

(3) receive notice,
grant consent, and invoke due process to resolve differences.
(See Sec. 300.514, Surrogate parents.)


28. Must the public agency let the parents know 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.`` (Sec. 300.345(b), emphasis
added.)
If possible, the agency should give the name and position of each
person who will attend. In addition, the agency should inform
the parents of their right to bring other participants to the
meeting. (See Question 21, above, regarding participation of the
child.) It is also appropriate for the agency to ask whether the
parents intend to bring a participant to the meeting.


29. Are parents required to sign IEPs?

Parent signatures are not required by either the Act or
regulations. However, having such signatures is considered by
parents, advocates, and public agency personnel to be useful.
The following are some of the ways that IEPs signed by
parents and/or agency personnel might be used:

a. A signed IEP is one way to document who attended the
meeting.

Note: This is useful for monitoring and compliance
purposes.
If signatures are not used, the agency must document
attendance in some other way.

b. An IEP signed by the parents is one way to indicate that
the parents approved the child's special education program.

Note: If, after signing, the parents feel that a change is
needed in the IEP, it would be appropriate for them to request
another meeting. See Question 11, above.

c. An IEP signed by an agency representative provides the
parents a signed record of the services that the agency has
agreed to provide.

Note: Even if the school personnel do not sign, the agency
still must provide, or ensure the provision of, the services
called for in the IEP.

30. If the parent signs the IEP, does the signature
indicate consent for initial placement?

The parent's signature on the IEP would satisfy the consent
requirement concerning initial placement of the child
(Sec. 300.504(b)(1)(ii)) only if the IEP includes a statement on
initial placement that meets the definition of consent in
Sec. 300.500:
Consent means that:

(a) the parent has been fully informed
of all information relevant to the activity for which consent is
sought ***

(b) 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

(c) The parent understands that the granting of consent is
voluntary *** and may be revoked at any time.


31. 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, on request, a copy of the IEP. In order that
parents may know about this provision, it is recommended that
they be informed about it at the IEP meeting and/or receive a
copy of the IEP itself within a reasonable time following the
meeting.


32. Must parents be informed at the IEP meeting of their
right to appeal?
If the agency has already informed the parents of their
right to appeal, as it is required to do under the prior notice
provisions of the regulations (Sec. 300.504-300.505), it would
not
be necessary for the agency to do so again at the IEP meeting.
Section 300.504(a) of the regulations states that ``written
notice that meets the requirements under Sec. 300.505 must be
given
to parents a reasonable time'' before the public agency proposes
or refuses ``to initiate or change the identification,
evaluation, or educational placement of the child or the
provision of FAPE to the child.''
Section 300.505(a) states that the notice must include

``(1) A full explanation of all of the procedural safeguards
available
to the parents under Sec. 300.500, Sec. 300.502-300.515, and Sec.
300.562 -
300.569."
The IEP meeting serves as a communication vehicle between
parents and school personnel, and enables them, as equal
participants, to jointly decide upon what the child's needs are,
what will be provided, and what the anticipated outcomes may be.
If, during the IEP meeting, parents and school staff are unable
to reach agreement, the agency should remind the parents that
they may seek to resolve their differences through the due
process procedures under the Act.

Note: Section 300.506(a) states that ``a parent or public
educational agency may initiate a hearing on any matters
described in Sec. 300.504(a)(1) and

(2).''  Every effort should be made to resolve differences
between
parents and school staff without resort to a due process hearing
(i.e., through voluntary mediation or some other informal step).
However, mediation or other informal procedures may not be used
to deny or delay a parent's right to a due process hearing. (See
Sec. 300.506. Impartial due process hearing.)


33. Does the IEP include ways for parents to check the
progress of their children?

In general, the answer is yes. The IEP document is a
written record of decisions jointly made by parents and school
personnel at the IEP meeting regarding the special education
program of a child with a disability. That record includes
agreed upon items, such as goals and objectives, and the specific
special education and related services to be provided to the
child.
The goals and objectives in the IEP should be helpful to
both parents and school personnel, in a general way, in checking
on a child's progress in the special education program. (See
Questions 37-43, below, regarding goals and objectives in the
IEP.) However, since the IEP is not intended to include the
specifics about a child's total educational program that are
found in daily, weekly, or monthly instructional plans, parents
will often need to obtain more specific, on-going information
about the child's progress -- through parent-teacher conferences,
report cards and other reporting procedures ordinarily used by
the agency.

34. Must IEPs include specific checkpoint intervals for
parents to confer with teachers and to revise or update their
children's IEPs?

No. The IEP of a child with a disability is not required to
include specific ``checkpoint intervals'' (i.e., meeting dates)
for reviewing the child's progress. However, in individual
situations, specific meeting dates could be designated in the
IEP, if the parents and school personnel believe that it would be
helpful to do so.
Although meeting dates are not required to be set out in the
IEP itself, there are specific provisions in the regulations and
in this document regarding agency responsibilities in initiating
IEP meetings, including the following:

(1) Public agencies must hold meetings periodically, but
not less than annually, to review, and if appropriate, revise,
each child's IEP (Sec. 300.343(d));

(2) there should be as many
meetings a year as the child needs (see Question 10, above); and

(3) agencies should grant any reasonable parental request for an
IEP meeting (see Question 11, above).
In addition to the above provisions, it is expected that,
through an agency's general reporting procedures for all children
in school, there will be specific designated times for parents to
review their children's progress (e.g., through periodic
parent-teacher conferences, and/or the use of report cards,
letters, or other reporting devices).


35. If the parents and agency are unable to reach agreement
at an IEP meeting, what steps should be followed until agreement
is reached?

As a general rule, the agency and parents would agree to an
interim course of action for serving the child (i.e., in terms of
placement and/or services) to be followed until the area of
disagreement over the IEP is resolved. The manner in which this
interim measure is developed and agreed to by both parties is
left to the discretion of the individual State or local agency.
However, if the parents and agency cannot agree on an interim
measure, the child's last agreed upon IEP would remain in effect
in the areas of disagreement until the disagreement is resolved.
The following may be helpful to agencies if there are
disagreements:

a. There may be instances where the parents and agency are
in agreement about the basic IEP services (e.g., the child's
placement and/or the special education services), but disagree
about the provision of a particular related service (i.e.,
whether the service is needed and/or the amount to be provided).
In such cases, it is recommended

(1) that the IEP be implemented
in all areas where there is agreement,

(2) that the document
indicate the points of disagreement, and

(3) that procedures be
initiated to resolve the disagreement.

b. Sometimes the disagreement is with the placement or kind
of special education to be provided (e.g., one party proposes a
self-contained placement, and the other proposes resource room
services). In such cases, the agency might, for example, carry
out any one or all of the following steps:

(1) Remind the parents that they may resolve their
differences through the due process procedures under Part B;

(2) work with the parents to develop an interim course of action
(in
terms of placement and/or services) that both parties can agree
to until resolution is reached; and

(3) recommend the use of
mediation, or some other informal procedure for resolving the
differences without going to a due process hearing. (See
Question 32, above, regarding the right to appeal.)

c. If, because of the disagreement over the IEP, a hearing
is initiated by either the parents or agency, the agency may not
change the child's placement unless the parents and agency agree
otherwise. (See Sec. 300.513, Child's status during proceedings.)
The following two examples are related to this requirement:

(1) A child in the regular fourth grade has been evaluated
and found to be eligible for special education. The agency and
parents agree that the child has a specific learning disability.
However, one party proposes placement in a self-contained
program, and the other proposes placement in a resource room.
Agreement cannot be reached, and a due process hearing is
initiated. Unless the parents and agency agree otherwise, the
child would remain in the regular fourth grade until the issue is
resolved.
On the other hand, since the child's need for special
education is not in question, both parties might agree -- as an
interim measure --

(1) to temporarily place the child in either
one of the programs proposed at the meeting (self-contained
program or resource room), or

(2) to serve the child through some
other temporary arrangement.

(2) A child with a disability is currently receiving
special education under an existing IEP. A due process hearing
has been initiated regarding an alternative special education
placement for the child. Unless the parents and agency agree
otherwise, the child would remain in the current placement. In
this situation, the child's IEP could be revised, as necessary,
and implemented in all of the areas agreed to by the parents and
agency, while the area of disagreement (i.e., the child's
placement) is being settled through due process.

Note: If the due process hearing concerns whether or not a
particular service should continue to be provided under the IEP
(e.g., physical therapy), that service would continue to be
provided to the child under the IEP that was in effect at the
time the hearing was initiated,

(1) unless the parents and agency
agree to a change in the services, or

(2) until the issue is
resolved. Insert illus. 01780


36. What should be included in the statement of the child's
present levels of educational performance?

The statement of present levels of educational performance
will be different for each child with a disability. Thus,
determinations about the content of the statement for an
individual child are matters that are left to the discretion of
participants in the IEP meetings. However, the following are
some points that should be taken into account in writing this
part of the IEP:

a. The statement should accurately describe the effect of
the child's disability on the child's performance in any area of
education that is affected, including

(1) academic areas
(reading, math, communication, etc.), and

(2) non-academic areas
(daily life activities, mobility, etc.).

Note: Labels such as mental retardation or deafness may not
be used as a substitute for the description of present levels of
educational performance.

b. The statement should be written in objective measurable
terms, to the extent possible. Data from the child's evaluation
would be a good source of such information. Test scores that are
pertinent to the child's diagnosis might be included, if
appropriate. However, the scores should be

(1) self-explanatory
(i.e., they can be interpreted by all participants without the
use of test manuals or other aids), or

(2) an explanation should
be included. Whatever test results are used should reflect the
impact of the disability on the child's performance. Thus, raw
scores would not usually be sufficient.

c. There should be a direct relationship between the
present levels of educational performance and the other
components of the IEP. Thus, if the statement describes a
problem with the child's reading level and points to a deficiency
in a specific reading skill, this problem should be addressed
under both

(1) goals and objectives, and

(2) specific special
education and related services to be provided to the child.


37. Why are goals and objectives required in the IEP?

The statutory requirements for including annual goals and
short term instructional objectives (Section 602(a)(20)(B)), and
for having at least an annual review of the IEP of a child with a
disability (Section 614(a)(5)) provide a mechanism for
determining

(1) whether the anticipated outcomes for the child
are being met (i.e., whether the child is progressing in the
special education program) and

(2) whether the placement and
services are appropriate to the child's special learning needs.
In effect, these requirements provide a way for the child's
teacher(s) and parents to be able to track the child's progress
in special education. However, the goals and objectives in the
IEP are not intended to be as specific as the goals and
objectives that are normally found in daily, weekly, or monthly
instructional plans.


38. What are annual goals in an IEP?

The annual goals in the IEP are statements that describe
what a child with a disability can reasonably be expected to
accomplish within a twelve month period in the child's special
education program. As indicated under Question 36, above, there
should be a direct relationship between the annual goals and the
present levels of educational performance.


39. What are short term instructional objectives in an IEP?

Short term instructional objectives (also called IEP
objectives) are measurable, intermediate steps between the
present levels of educational performance of a child with a
disability and the annual goals that are established for the
child. The objectives are developed based on a logical breakdown
of the major components of the annual goals, and can serve as
milestones for measuring progress toward meeting the goals.
In some respects, IEP objectives are similar to objectives
used in daily classroom instructional plans. For example, both
kinds of objectives are used

(1) to describe what a given child
is expected to accomplish in a particular area within some
specified time period, and

(2) to determine the extent that the
child is progressing toward those accomplishments.
In other respects, objectives in IEPs are different from
those used in instructional plans, primarily in the amount of
detail they provide. IEP objectives provide general benchmarks
for determining progress toward meeting the annual goals. These
objectives should be projected to be accomplished over an
extended period of time (e.g., an entire school quarter or
semester). On the other hand, the objectives in classroom
instructional plans deal with more specific outcomes that are to
be accomplished on a daily, weekly, or monthly basis. Classroom
instructional plans generally include details not required in an
IEP, such as the specific methods, activities, and materials
(e.g., use of flash cards) that will be used in accomplishing the
objectives.


40. Should the IEP goals and objectives focus only on
special education and related services, or should they relate to
the total education of the child?

IEP goals and objectives are concerned primarily with
meeting the needs of a child with a disability for special
education and related services, and are not required to cover
other areas of the child's education. Stated another way, the
goals and objectives in the IEP should focus on offsetting or
reducing the problems resulting from the child's disability that
interfere with learning and educational performance in school.
For example, if a child with a learning disability is functioning
several grades below the child's indicated ability in reading and
has a specific problem with word recognition, the IEP goals and
objectives would be directed toward

(1) closing the gap between
the child's indicated ability and current level of functioning,
and

(2) helping the child increase the ability to use word attack
skills effectively (or to find some other approach to increase
independence in reading).
For a child with a mild speech impairment, the IEP
objectives would focus on improving the child's communication
skills, by either

(1) correcting the impairment, or

(2) minimizing its effect on the child's ability to communicate.
On
the other hand, the goals and objectives for a child with severe
mental retardation would be more comprehensive and cover more of
the child's school program than if the child has only a mild
disability.


41. Should there be a relationship between the goals and
objectives in the IEP and those that are in instructional plans
of special education personnel?

Yes. There should be a direct relationship between the IEP
goals and objectives for a given child with a disability and the
goals and objectives that are in the special education
instructional plans for the child. However, the IEP is not
intended to be detailed enough to be used as an instructional
plan. The IEP, through its goals and objectives,

(1) sets the
general direction to be taken by those who will implement the
IEP, and

(2) serves as the basis for developing a detailed
instructional plan for the child.

Note: See Question 56, below, regarding the length of IEPs.


42. When must IEP objectives be written -- before placement
or after placement?

IEP objectives must be written before placement. Once a
child with a disability is placed in a special education program,
the teacher might develop lesson plans or more detailed
objectives based on the IEP; however, such plans and objectives
are not required to be a part of the IEP itself.


43. Can short term instructional objectives be changed
without initiating another IEP meeting?

No. Section 300.343(a) provides that the agency ``is
responsible for initiating and conducting meetings for the
purpose of developing, reviewing, and revising the IEP of a child
with a disability'' (emphasis added). Since a change in short
term instructional objectives constitutes a revision of the
child's IEP, the agency must

(1) notify the parents of the
proposed change (see Sec. 300.504(a)(1)), and

(2) initiate an IEP
meeting. Note, however, that if the parents are unable or
unwilling to attend such a meeting, their participation in the
revision of the IEP objectives can be obtained through other
means, including individual or conference telephone calls (see
Sec. 300.345(c)).


44. Must the IEP include all special education and related
services needed by the child or only those available from the
public agency?

Each public agency must provide FAPE to all children with
disabilities under its jurisdiction. Therefore, the IEP for a
child with a disability must include all of the specific special
education and related services needed by the child -- as
determined by the child's current evaluation. This means that
the services must be listed in the IEP even if they are not
directly available from the local agency, and must be provided by
the agency through contract or other arrangements.


45. Is the IEP a commitment to provide services -- i.e.,
must a public agency provide all of the services listed in the
IEP?

Yes. The IEP of each child with a disability must include
all services necessary to meet the child's identified special
education and related services needs; and all services in the IEP
must be provided in order for the agency to be in compliance with
the Act.


46. Must the public agency itself directly provide the
services set out in the IEP?

The public agency responsible for the education of a child
with a disability could provide IEP services to the child

(1) directly, through the agency's own staff resources, or

(2)
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
Sec. 300.301(a)). However, the services must be at no cost to the
parents, and responsibility for ensuring that the IEP services
are provided remains with the public agency.


47. Does the IEP include only special education and related
services or does it describe the total education of the child?

The IEP is required to include only those matters concerning
the provision of special education and related services and the
extent that the child can participate in regular education
programs. (Note: The regulations define special education as
specially designed instruction to meet the unique needs of a
child with a disability, and related services as those services
that are necessary to assist the child to benefit from special
education.) (See Sec. 300.17 and 300.16, respectively.)
For some children with disabilities, the IEP will only
address a very limited part of their education (e.g., for a child
with a speech impairment, the IEP would generally be limited to
the child's speech impairment). For other children (e.g., those
with profound mental retardation), the IEP might cover their
total education. An IEP for a child with a physical disability
with no mental or emotional disability might consist only of
specially designed physical education. However, if the child
also has a mental or emotional disability, the IEP might cover
most of the child's education.

Note: The IEP is not intended to be detailed enough to be
used as an instructional plan. See Question 41, above.


48. If modifications are necessary for a child with a
disability to participate in a regular education program, must
they be included in the IEP?

Yes. If modifications (supplementary aids and services) to
the regular education program are necessary to ensure the child's
participation in that program, those modifications must be
described in the child's IEP (e.g., for a child with a hearing
impairment, special seating arrangements or the provision of
assignments in writing). This applies to any regular education
program in which the student may participate, including physical
education, art, music, and vocational education.


49. When must physical education (PE) be described or
referred to in the IEP?

Section 300.307(a) provides that physical education
services, specially designed if necessary, must be made available
to every child with a disability receiving FAPE. The following
paragraphs

(1) set out some of the different PE program
arrangements for students with disabilities, and

(2) indicate
whether, and to what extent, PE must be described or referred to
in an IEP:

a. Regular PE with nondisabled students. If a student with
a disability can participate fully in the regular PE program
without any special modifications to compensate for the student's
disability, it would not be necessary to describe or refer to PE
in the IEP. On the other hand, if some modifications to the
regular PE program are necessary for the student to be able to
participate in that program, those modifications must be
described in the IEP.

b. Specially designed PE. If a student with a disability
needs a specially designed PE program, that program must be
addressed in all applicable areas of the IEP (e.g., present
levels of educational performance, goals and objectives, and
services to be provided). However, these statements would not
have to be presented in any more detail than the other special
education services included in the student's IEP.

c. PE in separate facilities. If a student with a
disability is educated in a separate facility, the PE program for
that student must be described or referred to in the IEP.
However, the kind and amount of information to be included in the
IEP would depend on the physical-motor needs of the student and
the type of PE program that is to be provided.
Thus, if a student is in a separate facility that has a
standard PE program (e.g., a residential school for students with
deafness), and if it is determined -- on the basis of the
student's most recent evaluation -- that the student is able to
participate in that program without any modifications, then the
IEP need only note such participation. On the other hand, if
special modifications to the PE program are needed for the
student to participate, those modifications must be described in
the IEP. Moreover, if the student needs an individually designed
PE program, that program must be addressed under all applicable
parts of the IEP. (See paragraph ``b'', above.)


50. If a student with a disability is to receive vocational
education, must it be described or referred to in the student's
IEP?

The answer depends on the kind of vocational education
program to be provided. If a student with a disability is able
to participate in the regular vocational education program
without any modifications to compensate for the student's
disability, it would not be necessary to include vocational
education in the student's IEP. On the other hand, if
modifications to the regular vocational education program are
necessary in order for the student to participate in that
program, those modifications must be included in the IEP.
Moreover, if the student needs a specially designed vocational
education program, then vocational education must be described in
all applicable areas of the student's IEP (e.g., present levels
of educational performance, goals and objectives, and specific
services to be provided). However, these statements would not
have to be presented in any more detail than the other special
education services included in the IEP.

51. 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. The amount
of time to be committed to each of the various services to be
provided must be

(1) appropriate to that 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.
Changes in the amount of services listed in the IEP cannot
be made without holding another IEP meeting. However, as long as
there is no change in the overall amount, some adjustments in
scheduling the services should be possible (based on the
professional judgment of the service provider) without holding
another IEP meeting.

Note: The parents should be notified whenever this occurs.


52. Must the IEP of a child with a disability indicate the
extent that the child will be educated in the regular educational
program?

Yes. Section 300.346(c) provides that the IEP for each
child with a disability must include a ``statement of * * * the
extent that the child will be able to participate in regular
educational programs.'' One way of meeting this requirement is
to indicate the percent of time the child will be spending in the
regular education program with nondisabled students. Another way
is to list the specific regular education classes the child will
be attending.

Note: If a child with a severe disability, for example, is
expected to be in a special classroom setting most of the time,
it is recommended that, in meeting the above requirement, the IEP
include any non-curricular activities in which the child will be
participating with nondisabled students (e.g., lunch, assembly
periods, club activities, and other special events).


53. Can the anticipated duration of services be for more
than twelve months?

In general, the anticipated duration of services would be up
to twelve months. There is a direct relationship between the
anticipated duration of services and the other parts of the IEP
(e.g., annual goals and short term instructional objectives), and
each part of the IEP would be addressed whenever there is a
review of the child's program. If it is anticipated that the
child will need a particular service for more than one year, the
duration of that service could be projected beyond that time in
the IEP. However, the duration of each service must be
reconsidered whenever the IEP is reviewed.


54. Must the evaluation procedures and schedules be
included as a separate item in the IEP?

No. The evaluation procedures and schedules need not be
included as a separate item in the IEP, but they must be
presented in a recognizable form and be clearly linked to the
short term instructional objectives.

Note: In many instances, these components are incorporated
directly into the objectives.
Other Questions About the Content of an IEP


55. Is it permissible for an agency to have the IEP
completed when the IEP meeting begins?

No. It is not permissible for an agency to present a
completed IEP to parents for their approval before there has been
a full discussion with the parents of

(1) the child's need for
special education and related services, and

(2) what services the
agency will provide to the child. Section 602(a)(20) of the Act
defines the IEP as a written statement developed in any meeting
with the agency representative, the teacher, the parent, and, if
appropriate, the child.
It would be appropriate for agency staff to come prepared
with evaluation findings, statements of present levels of
educational performance, and a recommendation regarding annual
goals, short term instructional objectives, and the kind of
special education and related services to be provided. However,
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. The
legislative history of Pub. L. 94-142 makes it clear that parents
must be given the opportunity to be active participants in all
major decisions affecting the education of their children with
disabilities. (See, e.g., S. Rep. No. 168, 94th Cong. 1st Sess.
13 (1975); S. Rep. No. 455 (Conference Report), 94th Cong. 1st
Sess. 47-50 (1975).)


56. Is there a prescribed format or length for an IEP?

No. The format and length of an IEP are matters left to the
discretion of State and local agencies. The IEP should be as
long as necessary to adequately describe a child's program.
However, as indicated in Question 41, above, the IEP is not
intended to be a detailed instructional plan. The Federal IEP
requirements can usually be met in a one to three page form.


57. Is it permissible to consolidate the IEP with an
individualized service plan developed under another Federal
program?

Yes. In instances where a child with a disability must have
both an IEP and an individualized service plan under another
Federal program, it may be possible to develop a single,
consolidated document only if:

(1) it contains all of the
information required in an IEP, and

(2) all of the necessary
parties participate in its development.
Examples of individualized service plans that might be
consolidated with the IEP are:

(1) The Individualized Care Plan
(Title XIX of the Social Security Act (Medicaid)),

(2) the Individualized Program Plan (Title XX of the Social
Security Act
(Social Services)),

(3) the Individualized Service Plan (Title
XVI of the Social Security Act (Supplemental Security Income)),
and

(4) the Individualized Written Rehabilitation Plan
(Rehabilitation Act of 1973).


58. What provisions on confidentiality of information apply
to IEPs?

IEPs are subject to the confidentiality provisions of both

(1) Part B (Section 617(c) of the Act; Sec. 300.560-300.576 of
the
regulations), and

(2) the Family Educational Rights and Privacy
Act (``FERPA'', 20 U.S.C. 1232g) and implementing regulations in
34 CFR Part 99. An IEP is an education record as that term is
used in the FERPA and implementing regulations (34 CFR Sec. 99.3)
and
is, therefore, subject to the same protections as other education
records relating to the student.
Note: Under Section 99.31(a) of the FERPA regulations, an
educational agency may disclose personally identifiable
information from the education records of a student without the
written consent of the parents ``if the disclosure is --

(1) To other school officials, including teachers, within the
educational institution or LEA who have been determined by the
agency or institution to have legitimate educational interests *
**'' in that information. Insert illus. 01788


59. If placement decisions are made at the time the IEP is
developed, how can a private school representative attend the
meeting?

Generally, a child who requires placement in either a public
or private residential school has already been receiving special
education, and the parents and school personnel have often
jointly been involved over a prolonged period of time in
attempting to find the most appropriate placement for the child.
At some point in this process (e.g., at a meeting where the
child's current IEP is being reviewed), the possibility of
residential school placement might be proposed -- by either the
parents or school personnel. If both agree, then the matter
would be explored with the residential school. A subsequent
meeting would then be conducted to finalize the IEP. At this
meeting, the public agency must ensure that a representative of
the residential school either

(1) attends the meeting, or

(2) participates through individual or conference telephone
calls, or
by other means. Insert illus. 01789A Insert illus. 01789B


60. Is the IEP a performance contract?

No. Section 300.350 makes it clear that the IEP is not a
performance contract that imposes liability on a teacher or
public agency if a child with a disability does not meet the IEP
objectives. While the agency must provide special education and
related services in accordance with the IEP of each child with a
disability, the Act does not require that the agency, the
teacher, or other persons be held accountable if the child does
not achieve the growth projected in the written statement.


PART 301 - PRESCHOOL GRANTS FOR CHILDREN WITH DISABILITIES

2. The authority citation for Part 301 continues to read as
follows:

AUTHORITY: 20 U.S.C. 1419, unless otherwise noted.
3. Section 301.1 is amended by revising paragraph (a) to read as
follows:
Sec. 301.1 What is the Preschool Grants for Children with
Disabilities program?

(a) Providing special education and related services to children
with disabilities aged three through five years, and, at a
State's discretion, providing a free appropriate public education
to two-year-old children with disabilities who will reach age
three during the school year;

4. The heading for Sec. 301.2 in the table of contents is revised
to read "Who is eligible for an award?".

5. Section 301.3 is amended by revising paragraphs (a) and (c)
to read as follows:

301.3 What kinds of activities may be assisted?

(a) Provide subgrants to LEAs and IEUs to assist them in
providing special education and related services to children with
disabilities aged three through five years, and, if consistent
with State policy, provide a free appropriate public education to
two-year-old children with disabilities who will reach age three
during the school year, whether or not those children are
receiving, or have received, services under Part H of the Act.

(c) Provide direct and support services from the SEA to children
with disabilities aged three through five years, and, at the
State's discretion, provide a free appropriate public education,
in accordance with the Act, to two-year-old children with
disabilities who will reach age three during the school year,
whether or not those children are receiving, or have received,
services under Part H.
(Authority: 20 U.S.C. 1419)

6. A new Sec. 301.6 is added to Subpart A to read as follows:

301.6 Does Part H of the Act apply to two-year-old children
with disabilities?

Part H of the Act does not apply to any child with disabilities
receiving a free appropriate public education, in accordance with
Part B of the Act, with funds received under the Preschool Grants
program.
(Authority: 20 U.S.C. 1419(g))

7. Section 301.10 is amended by revising paragraph (b)(2) to
read as follows:

301.10 How does a State become eligible to receive a grant?

(b) ***

(2) The State has policies and procedures in its State plan
under 34 CFR Part 300 that assure the provision of a free
appropriate public education --

(i) For all children with disabilities aged three through five
years in accordance with the requirements in 34 CFR Part 300; and

(ii) For any two-year-old children, provided services by the
State under þ301.30(b)(3) or by a LEA or IEU under þ301.30(a)(2);
and

8. Section 301.30 is amended by revising paragraphs (a), (b)(2),
and (d), and adding a new paragraph (b)(3) to read as follows:
þ301.30 How does a State distribute the grant money?

(a) A state shall distribute at least 75 percent of its grant to
LEAs and IEUs to be used to provide:

(1) Special education and related services to children with
disabilities aged three through five years; and

(2) If consistent with State policy, a free appropriate public
education, in accordance with Part B, to two-year-old children
with disabilities who will reach age three during the school
year, whether or not those children are receiving or have
received, services under Part H of the Act.

(b) ***

(2) The provision of direct and support services for children
with disabilities aged three through five years; and

(3) At the State's discretion, the provision of a free
appropriate public education to two-year-old children with
disabilities who will reach age three during the school year,
whether or not those children are receiving, or have received,
services under Part H of the Act.

(d) If a State provides services to preschool children with
disabilities because some or all LEAs and IEUs are unable or
unwilling to provide appropriate programs, the SEA may use
payments that would have been available to those LEAs or IEUs to
provide special education and related services to children with
disabilities aged three through five years, and to two-year-old
children with disabilities in accordance with paragraph (b)(3) of
this section, residing in the area served by those LEAs and IEUs.
(Authority: 20 U.S.C. 1414 (d), 1419(c)(2), 1419(f))


APPENDIX
Analysis of Comments and Changes

(NOTE: This appendix will not be codified in the Code of Federal
Regulations.)
The following is an analysis of the comments and of the changes
in the regulations since publication of the NPRM on August 19,
1991 (56 FR 41266). Substantive issues are discussed under the
section of the regulations to which they pertain. Minor changes
made to the language published in the NPRM -- and suggested
changes the Secretary is not legally authorized to make under
applicable statutory authority -- are not addressed. References
to section numbers in this appendix are to the final regulations.


Assistive technology device; Assistive technology service
(Sec. 300.5 and 300.6)

Comment: One commenter requested that the proposed definitions
of "assistive technology device" and "assistive technology
service" be modified to make them as educationally relevant as
possible. Another commenter stated that, in the definition of
"assistive technology service" (Sec. 300.6(f)), the term
"children"
should be used in lieu of "individuals." Another commenter
suggested that each State be required to include in the State
plan its system for providing information and technological
assistance for LEAs regarding assistive technology acquisition.

A commenter requested that procedures for determining when a
child needs assistive technology be added to the final
regulations. Another commenter requested that evaluations be
done by personnel qualified to assess the technological needs of
children with disabilities. Another commenter was concerned that
school personnel would not have the training and knowledge to
provide required services.

Discussion: The definitions of "assistive technology device" and
assistive technology service" are taken from sections 602(a)(25)
and 602(a)(26) of the Act, and there is no authority to change
the substance of those definitions. However, the requirement in
Sec. 300.308 limits the provision of assistive technology to
educational relevancy -- i.e., an assistive technology device or
service is only required if it is determined, through the IEP
process, to be

(1) special education, as defined in Sec. 300.17,

(2) a related service, as defined in Sec. 300.16, or

(3) supplementary aids and services required to enable a child to
be educated in the least restrictive environment. The Secretary
believes that the effect of Sec. 300.308 is to limit the
provision of
assistive technology devices and services to those situations in
which they are required in order for a child to receive FAPE.

The Note following "assistive technology service" in the NPRM
explained that, except for replacing "child" for "individual,"
the definition is taken directly from section 602(a)(25)-(26) of
the Act. The term "individuals" was inadvertently included in
paragraph (f) of that definition. Therefore, that term is being
changed to "children" in these final regulations.

The Secretary believes that while an SEA, at its discretion,
might choose to provide technical assistance to LEAs about
assistive technology or other provisions required in this part,
it would be inappropriate and burdensome to require that a State
include a description of a technical assistance system on
assistive technology in the State plan.

It is not necessary to add procedures for determining the need
for assistive technology services because this determination is
made as part of the individual evaluation of each child required
in Sec. 300.530-300.534. These evaluations must be done by
qualified individuals, as specified in Sec. 300.532(a)(3).

In instances where LEA personnel do not have the knowledge to
provide assistive technology services, funds under this part may
be used to obtain the necessary expertise, and, if appropriate,
to train existing school personnel. The Secretary does not
believe that further guidance is needed on the matters raised by
these commenters.

Changes: In Sec. 300.6(f), the clause "or are otherwise
substantially involved in the major life functions of individuals
with disabilities" has been revised to substitute the term
"children" for "individuals."


Autism (Sec. 300.7(b)(1))

Comment: Some commenters proposed that the phrase "generally
evident before the age of three" be eliminated because it may
result in excluding children who exhibit those characteristics
after age three. One commenter requested that the regulations
clarify that autism is a medical diagnosis, while another
commenter asked if a medical diagnosis would be required for this
disability.

Discussion: The reference to age three is not an age limitation,
but merely indicates that children identified as having autism
generally exhibit characteristics of this disability before age
three. The Secretary does not agree that a medical diagnosis is
required to determine whether a child falls within the disability
category of "autism." The definition of "children with
disabilities" in Sec. 300.7(a)(1) states that the term means
"those
children evaluated in accordance with Sec. 300.530-300.534...."
The
required procedures in those sections are broad enough to ensure
that diagnostic and placement decisions are based on
comprehensive information about the child, including medical
information that may be needed to determine whether the child has
a disability and is in need of special education and related
services.

Changes: None.

Comment: Several commenters raised issues regarding the
characteristics listed in the definition of "autism." For
example, some commenters stated that the proposed definition
implies that a child must exhibit all of the characteristics
listed to be considered to have autism. In addition, a commenter
asked that impairments in the development of social relationships
be added to the list of characteristics. Commenters raised two
concerns about the term "stereotyped movements" -- that the term
is too vague and that, in some instances, older children may not
exhibit stereotyped movements.

One commenter proposed that the phrase "that markedly restricts
activities and interests" be included after "generally evident
before age three" to be consistent with the definition of
"Pervasive Developmental Disorder" in the Diagnostic and
Statistical Manual of Mental Disorders (DSM-III-R). Several
commenters requested that the term "Pervasive Developmental
Disorder" be included to ensure that the definition is not
restrictive. One commenter requested that a statement be added
noting that the term "autistic" does not include children with
"autistic-like tendencies."

Discussion: The definition in the NPRM was not intended to
require the presence of all of the characteristics listed, nor to
be an exhaustive list of characteristics. Children with autism
must have impairments in both communication and social
interaction. In addition, there are other characteristics that
are often, but not always, associated with autism. The term
"stereotyped movements" is used by most special educators and
medical and health professionals to describe behaviors of many
children with autism. The phrase "that markedly restricts
activities and interests" does not need to be added because it is
implicit in the definition. Children with "autistic-like
tendencies" are included if they meet the definition of "autism."
Inclusion of the definition of "Pervasive Developmental Disorder"
is not needed because the definition of "autism" is sufficiently
broad to encompass children who exhibit a range of
characteristics of autism.

Changes: The definition has been revised to

(1) include, in the
first sentence, characteristics generally common to children with
autism, and

(2) list, in the second sentence, "Other
characteristics often associated with autism...."

Comment: Several commenters requested that the last sentence in
the definition of "autism" regarding the exclusion of children
with characteristics of the disability "serious emotional
disturbance" be eliminated. They indicated that some
characteristics of autism are similar to some characteristics of
serious emotional disturbance. A few commenters stated that, in
the past, autism was classified under the definition of "serious
emotional disturbance."

Discussion: A clarifying change has been made in the definition.
However, the Secretary believes that it is important that the
regulations distinguish between serious emotional disturbance and
autism because children may exhibit characteristics of both
disabilities. While the commenters are correct that, in the
past, autism was included in the category of "serious emotional
disturbance," the current regulations include "autism" in the
category of "other health impaired." The legislative history of
Pub. L. 101-476 indicates that autism has suffered from an
inaccurate identification with mental illness, and that the
designation of autism as a disability category is meant to
clarify it as a developmental disability and not as a form of
mental illness. (See House Report No. 101-544, 5 (1990).)

Changes: The last sentence of the definition of "autism" has
been modified to clarify that the term does not apply if a
child's educational performance is adversely affected primarily
because the child has a serious emotional disturbance.


Traumatic brain injury (Sec. 300.7(b)(12))

Comment: A commenter suggested that the first sentence of the
proposed definition of "traumatic brain injury" be amended by
adding "acquired" before "injury," and substituting "impairment"
for "maladjustment". The commenter also pointed out that
"functional disability" and "psychosocial impairment" resulting
from an injury to the brain are not always mutually exclusive,
and recommended that the definition be amended to allow for both.
One commenter requested the inclusion of adverse effects on
social-emotional development, not just academic performance.

Discussion: The Secretary agrees that the definition of
"traumatic brain injury" should clarify that the injury

(1) occurs after birth, and

(2) results in total or partial
functional disability, or psychosocial impairment, or both, to
provide a more accurate and comprehensive description of children
in this disability category. It is not necessary to include a
statement of adverse effects on social-emotional development in
the definition because social-emotional developmental
consequences may be reflected in adverse effects on educational
performance.
Changes: The definition has been revised to incorporate the
commenter's suggestions, to the extent indicated in the above
discussion.

Comment: Some commenters requested clarification as to whether
medical verification or physician documentation would be
required. In addition, a few commenters requested that specific
assessment procedures be developed and required. One commenter
stated that LEAs do not have individuals skilled in assessing
children with traumatic brain injury and expressed concern about
assessment costs.

Discussion: The definition of "children with disabilities" in
Sec. 300.7(a)(1) states that the term means "those children
evaluated
in accordance with Sec. 300.530-300.534...." The required
procedures in those sections are broad enough to ensure that
diagnostic and placement decisions are based on comprehensive
information about the child, including medical information if it
is needed to determine whether the child has a disability and is
in need of special education and related services. There should
not be a significant increase in the cost of assessing children
with traumatic brain injury, since these children are being
currently assessed and are receiving special education, although
they are identified as having other disabling conditions. The
establishment of a separate category should facilitate the
development of improved assessment and program planning efforts.
These efforts, together with improved personnel training, should
help to ensure that required personnel in LEAs are appropriately
skilled in the identification, evaluation, and placement of
children with traumatic brain injury. (See House Report No. 101-
544, 5 (1990).)

Changes: None.

Comment: Several commenters requested clarification as to
whether there is any overlap between the definitions of
"traumatic brain injury" and "other health impaired." The
commenters asked if an injury resulting from infection, tumor,
fever, exposure to a toxic substance, or near-drowning would be
considered a traumatic brain injury. A commenter also requested
that the definition not exclude other acquired brain injuries
when the resulting functional areas of disability are similar to
the disabilities resulting from traumatic brain injury.

Discussion: The term "traumatic brain injury," as used in
professional practice, applies only to children with acquired
brain injuries caused by an external physical force. It does not
apply to injuries caused by internal occurrences, such as
infections, tumors, fever, and exposure to toxic substances.
Children whose educational performance is affected as a result of
acquired injuries to the brain caused by internal occurrences may
meet the criteria of one of the other disability categories, such
as "other health impaired," "specific learning disabilities," or
"multiple disabilities." The definition of "traumatic brain
injury" does include an acquired injury to the brain caused by
the external physical force of near-drowning.

Changes: The phrase "or by an internal occurrence such as a
stroke or aneurysm" has been deleted from the first sentence of
the definition.

Comment: A commenter suggested that the word "mild" be deleted
from the second sentence of the definition of "traumatic brain
injury." Another commenter asked that descriptions of the degree
of a child's impairment be eliminated from the definition.

Discussion: The Secretary believes that the degree of impairment
is not a factor in determining whether a child has a "traumatic
brain injury." Therefore, the terms "mild," "moderate," and
severe" should be deleted from this definition. The factors for
determining whether a child is eligible under this disability
category for services under Part B are

(1) an acquired injury to
the brain caused by an external physical force resulting in total
or partial functional disability or psychosocial impairment that
adversely affects educational performance, and

(2) a need for
special education and related services because of that disability
or impairment. The particular services provided to the child are
determined on an individual basis. Thus, as long as the factors
described above are met, children are eligible whether or not
they have mild, moderate, or severe impairments.

Changes: The descriptions of degree of impairment (mild,
moderate, and severe) have been deleted from the definition.


Rehabilitation counseling services (Sec. 300.16(b)(10))

Comment: Some commenters indicated that rehabilitation
counseling services should be provided by State vocational
rehabilitation agencies under Title I of the Rehabilitation Act
of 1973, and not be a requirement under this part. Commenters
also expressed concern regarding the potential responsibility and
the financial burden to LEAs to provide services that were
previously the responsibility of other agencies, as well as the
inability of LEAs to commit the resources of other agencies. Two
commenters requested that the definition of "rehabilitation
counseling services" be broadened to mention additional services.
A commenter requested clarification about the intent of the new
requirement, especially with respect to services provided under
the Rehabilitation Act of 1973.

Discussion: Public Law 101-476 added "rehabilitation counseling"
as a type of "counseling service" in the list of related services
in Part B. The Report of the House Committee on Education and
Labor on Pub. L. 101-476 describes rehabilitation counseling as
an important related service in special education, as well as an
important transition service in preparing students with
disabilities for employment or postsecondary education. In
addition, the report states, "It is the intent of the Committee
that rehabilitation counseling... be provided to all students
with disabilities for whom this service is necessary for the
achievement of the individualized education program." (See House
Report No. 101-544, 7-8 (1990).)
"Rehabilitation counseling services," as defined in
Sec. 300.16(b)(10), includes a variety of services, such as
career
development, employment counseling, and employment preparation.
The term also includes vocational rehabilitation services
provided to students with disabilities under the Rehabilitation
Act of 1973. The Secretary believes that the definition is broad
enough not to require the listing of additional services.

Because "rehabilitation counseling services" is a type of related
service under "counseling services" in Part B, public agencies
must provide that service to any student with a disability, if
the IEP team determines that the service is required to assist
the student to benefit from special education. As indicated in
the discussion to the comment that follows, rehabilitation
counseling may be provided by existing LEA staff, if they are
qualified under Sec. 300.15 to provide those services in areas
appropriate to their disciplines.

The Secretary recognizes that LEAs do not have the authority to
commit the resources of another agency. However, the SEA is
responsible -- through the use of interagency agreements required
under Sec. 300.151, or other means -- to ensure that services
that
would have been provided by other agencies will continue to be
provided, either by those agencies, or by the LEA responsible for
providing FAPE to the child. In accordance with Sec. 300.150,
States
may not permit LEAs to use funds under this part to provide or
pay for services that would have been paid for by a health or
other agency pursuant to policy or practice but for the fact that
these services are now included in a student's IEP.

Changes: None.

Comment: Many commenters requested that the term "qualified
counseling professional" be deleted from the definition of
"rehabilitation counseling services." They were concerned that
it would add a new personnel category that would require States
to adopt new certification or licensure standards, and preclude
the continued provision of services by existing school staff, who
are otherwise qualified. A few commenters suggested that
"certified" be used in lieu of "qualified."

Discussion: The Secretary believes that existing school staff
(e.g., prevocational counselors, work-study coordinators, or
special education teachers), who are qualified under Sec. 300.15,
should be permitted to provide rehabilitation counseling services
appropriate to their disciplines. The qualifications of
personnel providing those services, like the qualifications of
personnel providing other services, is a matter to be determined
by each State. The method used to specify the qualifications of
personnel (e.g., certification, licensure, or registration) is
also a matter that is left to State discretion.

Changes: The term "a qualified counseling professional" has been
changed to "qualified personnel."

Social work services in schools (300.16(b)(12))

Comment: A large number of commenters did not support the
proposed deletion of "in schools" from the definition of "social
work services," and requested that the current term "social work
services in schools" be retained in the final regulations. These
commenters stated, among other reasons, that the existing term
helps to ensure that the services provided will be educationally
relevant and directly linked to the IEP. Some commenters
requested that the term be changed to "school social work
services."

A few commenters supported the deletion of "in schools" from the
defined term, asserting that the change would enable broader
services to be provided. One commenter stated that the proposed
change would allow schools and other public and private agencies
to work together in providing appropriate mental health services
to children with serious emotional disturbance.

Another commenter requested the following changes:

(1) substituting developmental "history" for developmental
"assessment,"

(2) adding the phrase "making home visits," to be
consistent with the definition in 34 CFR 303.12(d)(11), and


(3) changing "mobilizing" to "identifying and coordinating." A
few commenters requested that the qualifications of social
workers be clarified. Commenters also urged that services be
provided by credentialed school social workers.

Discussion: The phrase "in schools" was proposed to be omitted
from the defined term because the Secretary believed that public
agencies understood that phrase to limit the setting in which
social work could be provided as a related service. The comments
received make clear that this is not the case. The substance of
the definition, which was not proposed to be amended, permits
these services to be provided in any environment, including a
child's home, if they are required to assist the child to benefit
from special education.

Because the term "social work services in schools" has been used
in this part since 1977 and is commonly accepted by LEAs and
other public agencies throughout the Nation, the Secretary does
not believe that it is necessary to change the term to "school
social work services" or to make other changes to the substance
of the definition.

Social work services in schools must be provided by personnel who
are qualified under Sec. 300.15. The qualifications of personnel
providing those services is a matter to be determined by each
State. The method used to specify the qualifications of
personnel (e.g., certification, licensure, or registration) is
also a matter that is left to State discretion.

Changes: The phrase "in schools" has been retained in the
defined term.

Comment: Several commenters requested that, in
Sec. 300.16(b)(12)(iv), the goal of receiving "maximum benefit"
be
deleted. These commenters asserted that "maximum benefit"
exceeds the legally required standard for providing FAPE. Some
of the commenters stated that the phrase "to receive maximum
benefit from his or her educational program" is inconsistent with
the decision of the United States Supreme Court in Board of
Education v. Rowley, 458 U.S. 176 (1982) -- that Part B does not
entitle children to maximization of their educational potential,
but only to educational benefit.

Discussion: The definition of "social work services in schools,"
included at Sec. 300.12(b)(12) of the current regulations has
remained unchanged since 1977. The phrase "to receive maximum
benefit," as used in that definition, was intended only to
provide that one activity carried out by personnel qualified to
provide social work services in schools is to mobilize resources
so that a child can learn as effectively as possible in his or
her educational program. This provision did not set a legal
standard for that program or entitle the child to a particular
educational benefit. However, because of the commenters'
concerns that the phrase "to receive maximum benefit" appears to
be inconsistent with the Rowley decision, the Secretary believes
that the phrase should be revised.

Changes: Section 300.16(b)(12)(iv) has been revised to read:
"Mobilizing school and community resources to enable the child to
learn as effectively as possible in his or her educational
program."


Transition services (Sec. 300.18)

Comment: A large number of comments were received on the
proposed Note following the definition of transition services.
The majority of commenters requested that the last sentence of
the Note be revised to delete the statement that the listed
activities in the definition are only examples of different types
of post-school activities, and, instead, to specify that the
listed activities are the minimum that must be provided. Other
commenters requested that the listed activities be permissive and
not mandatory. One commenter requested that the final
regulations define the limits of transition services. (See other
comments on transition services relating to Sec. 300.344-300.347
in
this Appendix.)

Discussion: The Secretary agrees with commenters that the
statement in the Note -- that the listed activities are only
examples -- must be deleted. The statute defines both
"transition services" and "individualized education program."
20 U.S.C. 1401(a)(19) and 1401(a)(20). Paragraph (D) of the
definition of IEP provides that an IEP must include a statement
of the needed transition services for students with disabilities
who are 16 years of age or older, and for certain students below
age 16. The Secretary interprets these provisions to require
that, at a minimum, the IEP team for each student must address
each of the areas listed in Sec. 300.18(b)(2)(i) through
Sec. 300.18(b)(2)(iii) (as incorporated from section 602(a)(19)
of
the Act), and determine what services are needed by the student
in each area. If the IEP team determines that no services within
a particular area are needed by the student, the IEP must include
a statement to this effect, and the basis upon which that
determination was made. See Sec. 300.346(b).

Although the definition of transition services in Sec. 300.18
includes a specific list of activities, that list is not intended
to be exhaustive. The Secretary does not believe that further
guidance is needed regarding the limits of transition services.

Changes: The last sentence of the Note following Sec. 300.18 has
been revised to delete the statement that the listed activities
are only examples of different types of post-school activities.

Comment: One commenter requested clarification of what is meant
by the term "outcomes," as used in "outcome-oriented process."
Some commenters requested clarification of the term
"coordinated," as used in "a coordinated set of activities."
A few commenters requested that recreation and leisure, and
orientation and mobility, be added to the coordinated set of
activities.

A few commenters requested that the term "if appropriate" be
deleted as a modifier of the phrases "acquisition of daily living
skills" and "functional evaluation," stating that these
activities are needed by all students. Another commenter
requested deletion of "if appropriate," stating that the IEP is
already individualized.

One commenter requested an emphasis on the responsibility of
schools to prepare students with severe disabilities to work and
live in the community. Another commenter requested that the
definition emphasize the importance of involving the student,
parents, other family members, employers, and other community
representatives earlier in the student's educational process.
One commenter requested a definition of "functional vocational
evaluation."

Discussion: The term "outcome," as used in the phrase "outcome-
oriented process," refers to the results, or intended effect, of
the activities on a student. The Secretary interprets the term
"coordinated" to mean both

(1) the linkage between each of the
component activities that comprise transition services, and

(2) the interrelationship between the various agencies that are
involved in the provision of transition services to a student.
With respect to the comment on "outcomes and the request to
clarify the term "coordinated," the Secretary does not believe
that further guidance is needed in these regulations. It also is
not necessary to specify recreation and leisure, and orientation
activities because they could be included under other post-school
adult living objectives. As used in Sec. 300.18, the term "if
appropriate" is incorporated from the statutory definition of
transition services.

It is not necessary to emphasize the responsibility of schools
in preparing students with severe disabilities for post-school
activities, since transition services are to be provided to each
student who is eligible for those services.

The Secretary agrees with the commenter that it is important to
involve students, their parents, and appropriate community
representatives as early as possible in the educational process
-- to facilitate a smooth transition from school to employment.
However, it is not appropriate to add this as a requirement in
the definition under Sec. 300.18. It also is not necessary to add
a
definition of "functional vocational evaluation." The term is
intended to be sufficiently broad to enable States and LEAs to
include whatever services or activities are determined
appropriate for individual students.

Changes: None.


Full educational opportunity goal -- data requirement (Sec.
300.124)

Comment: Two commenters requested clarification regarding
whether the effect of the removal of this section was simply to
require data to be submitted separately from the State plan or
whether the data requirements would be less specific or otherwise
substantively different.

Discussion: When the original regulations in this part were
published in 1977, States were required to submit State plans on
an annual basis. State plans are now submitted on a triennial
basis; but the data for the Part B program are required to be
submitted each year as part of the Department's Annual Data
Report under section 618 of the Act. This change does not affect
the substance of the data requirements.

Changes: None.

Child identification (Sec. 300.128, Note 2)

Comment: One commenter felt that the issue of coordination
between the Part B and Part H programs was so important that it
should be addressed in the regulation rather than a note. The
commenter requested clarification regarding the responsibility of
the Part H lead agency when it is not the SEA. Another commenter
suggested that the two agencies be required to coordinate child
find activities with other agencies. Other commenters requested
clarification of the components of these activities and
applicable procedural safeguards. One commenter questioned
whether Part B requires child find activities for children from
birth to two years of age.

Discussion: A specific provision requiring the lead agency for
Part H to coordinate its child find system with all other child
find efforts in the State, including those under Part B, is
contained in 34 CFR 303.321(c). Therefore, a Note following
Sec. 300.128 is sufficient to address the importance of effective
coordination between the two programs.

The Secretary believes that, in States where the SEA and the lead
agency for Part H are different, effective coordination between
the two agencies is essential to the implementation of the child
find activities. The nature and extent of that participation
must be included in the State plan. With the agreement of the
SEA, the Part H lead agency may undertake the actual
implementation of child find efforts for infants and toddlers
with disabilities. However, the SEA remains responsible in all
events for ensuring compliance with all child find requirements,
including those relating to the evaluation of children.

With respect to the scope of the child find requirements under
this part, the Secretary interprets those requirements to apply
to all children from birth through twenty-one.

Changes: Note 2 has been revised to reflect the above
discussion.

Assistive technology (Sec. 300.308)

Comment: A few commenters questioned the Department's authority
to require assistive technology devices and services under
Sec. 300.308, stating that the only new statutory provisions
affecting Part B are the definitions of these terms in 20 U.S.C.
1401(a)(25) and (a)(26).

Several commenters requested that the provisions on assistive
technology devices and services be amended to clarify that the
cost of personal or medical devices should be borne by parents or
other public agencies and not educational agencies. A few
commenters requested that the final regulations clarify that an
assistive technology device can be taken home by a child if it is
needed to complete a homework assignment; other commenters stated
that devices should be used only at school. One commenter
suggested that, with respect to a child's need for assistive
technology devices and services, the phrase "following evaluation
of such needs" be added to proposed Sec. 300.308(a).

Discussion: The Secretary believes that the requirements for
assistive technology in this part are fully authorized by law.
The report of the House Committee on Education and Labor on
Pub. L. 101-476 states:
...The Committee is aware that since the passage of the Education
of the Handicapped Act, advances in the development and use of
assistive technology have provided new opportunities for children
with many disabilities to participate in educational programs.
For many children and youth with disabilities, the provision of
assistive
technology devices and services will redefine "an appropriate
placement in the least restrictive environment" and allow greater
independence and productivity....

The Committee bill incorporates definitions for assistive
technology service and assistive technology device in order
...(2) to increase the awareness of assistive technology as an
important component of meeting the special education and related
service needs of many students with disabilities, and thus enable
them to participate in, and benefit from, educational
programs.... (House Report No. 101-544, 8-9 (1990).)

The Secretary believes that assistive technology devices and
services may be essential to the provision of FAPE to certain
children with disabilities. Section 300.308 provides only that
these devices and services must be made available if they are
required under current provisions of the regulations relating to
special education, related services, and supplementary aids and
services.

A determination as to whether an assistive technology device or
service is required in order for a child to receive FAPE must be
made on an individual basis using the evaluation procedures, the
procedures for developing IEPs, and the procedures for placement
described in these regulations. Similarly, a decision as to
whether a child may use a device or service in settings other
than the child's school (e.g., the child's home or other parts of
the community) also must be made on an individual basis.

Under Sec. 300.301, a public agency may use whatever State,
local,
Federal, and private sources of support are available to provide
or pay for services, including assistive technology services or
devices. These services and devices must be provided at no cost
to the child or parent under Sec. 300.8 and 300.300.

The Secretary does not believe that it is necessary to add the
phrase "following evaluation of such needs" because the concept
of determining needs based on evaluation is central to these
regulations.

Changes: None.

Comment: Several commenters objected to proposed Sec. 300.308(b),
regarding the provision of supplementary aids and services for
children who are educated in regular classes, because the
proposed language implied that assistive technology devices and
services under this part must be provided to children who do not
receive special education and related services.

Discussion: Under Sec. 300.550(b)(2), "supplementary aids and
services" must be provided to children with disabilities who have
been determined to be eligible under Part B and are able to be
educated in regular classes with the use of those aids and
services. Assistive technology can be a form of "supplementary
aids and services."

Changes: Section 300.308 has been revised to make it clear that
assistive technology devices and services must be provided only
if they are required under current regulations as part of a
child's special education (Sec. 300.17), related services (Sec.
300.16),
or supplementary aids and services (Sec. 300.550(b)(2)).


Priorities (Sec. 300.321(c))

Comment: A few commenters requested that the prohibition against
the use of Part B funds for preservice training in Sec.
300.321(c) of
the current regulations be retained. These commenters expressed
concern about duplication of effort, noting that preservice
training is currently the responsibility of institutions of
higher education. Another commenter expressed concern that
public agencies would be required to use Part B funds for
preservice education, thus diverting funds away from the
provision of direct services. One commenter expressed support
for deleting the provision if the change would provide LEAs more
flexibility in using Federal funds for preservice training, but
not if it would mean that universities would have increased
availability of Part B funds for preservice training previously
funded from other sources.

Discussion: The Secretary believes that the prohibition against
using funds under this part for preservice training should be
deleted, as proposed in the NPRM. Deleting the prohibition will
give States and LEAs the flexibility to use funds under this part
for preservice training if they choose to do so.

Changes: None.


Participants in meetings; Parent participation (Sec. 300.344(c)
and
300.345(b)(2))

Comment: Several commenters requested that the term "if
appropriate" be deleted from the Note following Sec. 300.344(c),
and
that inclusion of students in their IEP meetings be required.
Other commenters requested that the Note reflect a preference for
student inclusion and clarify who makes the determination of the
appropriateness. These commenters stressed the importance of
students having direct involvement in determining their own
programs and services.

Discussion: The Secretary agrees with commenters that "if
appropriate" should be deleted, and that students should be
afforded the opportunity to participate and have a voice in their
own transition planning. Providing for the inclusion of older
students in their IEP meetings is consistent with the current
provisions of this part. Section 300.344(a)(4) states that each
public agency "shall ensure that the meeting includes...the
child, where appropriate." The Note following question 21 of
Appendix C of these regulations states that "[t]he parents and
the agency should encourage older children with disabilities
(particularly those at the secondary level) to participate in
their IEP meetings." The Secretary believes that, if a purpose
of the IEP meeting is the consideration of transition services
for a student, the public agency has a responsibility to

(1) invite the student to attend the meeting, and

(2) consistent with Executive Order 12606, entitled "The Family,"
inform the
parents, in the notice required at Sec. 300.345(a)(1), that the
student will be invited. Also, if the student does not attend,
the public agency must use other methods to ensure that the
student's preferences and interests are taken into account at the
meeting.

The Secretary believes that it is important to add a Note to
clarify when the public agency is required to invite students to
attend their IEP meetings. All students who are 16 years of age,
or older, must be invited, since one of the purposes of the
annual IEP meeting will always be the planning of transition
services. Also, any student younger than age 16 must be invited
before a decision about transition services for the student is
made.
Changes: The following changes have been made:

(1) the title of
Sec. 300.344(c) has been changed to "Transition services
participants";

(2) that paragraph has been revised to specify
that if a purpose of the meeting is the consideration of
transition services for a student, the public agency must invite
the student, and, if the student does not attend, take steps to
ensure that the student's preferences and interests are
considered;

(3) proposed Note 2 following Sec. 300.344 in the NPRM
has been revised to clarify when public agencies must invite
students to their IEP meetings; and

(4) Sec. 300.345 (Parent
participation) has been revised at paragraph (b)(2) to provide
that, if a purpose of the IEP meeting is the consideration of
transition services, the notice of the meeting must indicate this
purpose, and indicate that the student will be invited.

Comment: Several commenters expressed concern about the
requirement in Sec. 300.344(c)(2) of the NPRM that public
agencies
must ensure that IEP meetings include, "if appropriate, a
representative of each other participating agency providing the
transition services...." The commenters stated that public
agencies do not have the authority to require the attendance of
personnel from other agencies, and requested that the requirement
be deleted, or modified to provide guidance on alternatives for
the public agency to follow if other agencies fail to participate
(e.g., to require documentation of efforts to involve agencies,
or to use other methods to ensure participation).

A commenter requested clarification of the term "a representative
of the public agency," as used in Sec. 300.344(a)(1) of the
current
regulations and proposed Sec. 300.344(c)(1) of the NPRM, noting
that
the terms appear to be duplicative. Another commenter requested
the inclusion of agency representatives who are needed to assist
in planning (e.g., case managers or advocates), but whose
agencies are not necessarily providing or paying for transition
services. One commenter requested that the regulation address
the need for providing information on accommodations in
postsecondary education and employment that are required under
section 504 of the Rehabilitation Act and the Americans with
Disabilities Act.

Discussion: The Secretary believes that LEAs need the
involvement of, and commitment from, the various agencies that
will participate in the provision of transition services to
students with disabilities, but agrees with the commenters that
LEAs cannot compel the attendance of representatives of
transition agencies at IEP meetings. Therefore, the Secretary
believes that LEAs need to adopt other methods to ensure the
involvement of those agencies (e.g., through individual or
conference telephone calls, or correspondence).

The Secretary agrees with the commenter that the provision at
proposed Sec. 300.344(c)(1) of the NPRM that requires each IEP
meeting to include "a representative of the public agency
responsible for providing or supervising the provision of
transition services" duplicates the statutory requirement in the
current regulations at Sec. 300.344(a)(1) (i.e., "a
representative of
the public agency...who is qualified to provide or supervise the
provision of special education").

Under Sec. 300.344(a)(5), participants at IEP meetings are not
limited to representatives of agencies that provide or pay for
the provision of transition services, but may include, at the
discretion of the agency or parents, other individuals who can be
helpful in planning transition services. Because Sec.
300.344(a)(5)
already provides for the kind of participation requested by the
commenter, no further clarification is needed in these
regulations. Considering an individual student's need for
reasonable accommodation in post-school environments is an
inherent part of transition planning, and is implicit in these
regulations. Therefore, it is not necessary to add a requirement
on this point.

Changes: Section 300.344(c)(1) of the NPRM has been deleted.
The requirement at Sec. 300.344(c)(2) of the NPRM (designated as
Sec. 300.344(c)(1)(ii) in these final regulations) has been
modified
to specify that the public agency must invite "a representative
of any other agency that is likely to be responsible for
providing or paying for transition services." A provision has
been added to specify that if a transition agency fails to send a
representative to the IEP meeting, the public agency must take
other steps to obtain the participation of that agency.


Content of IEP (Sec. 300.346)

Comment: A few commenters requested that a note be added to
clarify that the statement of needed transition services must be
based on current academic, vocational, and functional assessment
and evaluation information. Some commenters requested that the
regulations specify that the "statement of needed transition
services" include

(a) goals and objectives, including short-term
transitional objectives, and

(b) the specific special education
services to be provided to the student.

A few commenters requested that the regulations refer to a "plan"
rather than a "statement" because this would provide a fully
developed schemata for implementation of services. One commenter
requested that an exit planning meeting be held prior to
graduation to determine if transition goals have been met and if
appropriate services are being provided.

Several commenters expressed concern that other agencies would
abandon their commitment to provide transition services, and
suggested that the regulations require that participating
agencies must provide the transition services agreed to in the
IEP. Many of these commenters, citing the legislative history of
the 1990 Amendments, requested that the Note following Sec.
300.346
be amended to clarify that the statement of agency
responsibilities is intended to address shared financial and
programmatic responsibility. One commenter suggested deleting
the language regarding participating agencies' responsibilities,
since that concept is already covered in other areas of the
Part B regulations.

Discussion: The Secretary agrees with commenters that it is
important to base transition services on current evaluation and
assessment information about a student that is derived from a
current evaluation that meets the requirements of Sec. 300.532
and
300.533.

Nothing in Part B excludes goals and objectives for transition
services. However, given that the IEP content requirements in
Sec. 300.346(a) do not appear to be appropriate for all types of
transition services, the Secretary has determined not to regulate
further on this point at this time.

With respect to the request to use the term "plan" in lieu of
"statement," the regulation uses the terminology of section
602(a)(20) of the Act. The Secretary believes that it is not
necessary to require that an exit planning meeting be held
because exit planning should be discussed as a matter of course
in IEP meetings on transition services.

The Secretary believes that it is important to ensure that other
agencies continue to provide or pay for those transition services
for which they are financially and legally responsible. This
position is stated in Sec. 300.347(b) of these final regulations
(Sec. 300.347(c) in the NPRM). The Secretary agrees with
commenters
that the Note following Sec. 300.346 should reflect the
legislative
history of the Act regarding shared financial responsibilities
for transition services.
Changes: A new heading for paragraph (a) ("General") has been
added, and the five components of the IEP, as contained in
Sec. 300.346 of the current regulations, have been included under
that heading. A new paragraph (b) ("Transition services") has
been added. The transition services requirements under paragraph
(b)
have been revised to specify that the IEP for a student must
include the three areas listed in Sec. 300.18(b)(2)(i) through
Sec. 300.18(b)(2)(iii), unless

(1) the IEP team determines that
services are not needed in one of those areas, and

(2) the IEP
includes information to that effect, including the basis for the
determination. (The comments and discussion related to these
changes are included under Sec. 300.18.)

The Note following Sec. 300.346 in the NPRM (designated as
Note 1 in these final regulations) has been revised consistent
with the above discussion. A new Note 2 has been added to
clarify the requirement in paragraph (b) related to including in
a student's IEP the three transition services areas specified in
Sec. 300.18(b)(2)(i) through Sec. 300.18(b)(2)(iii).

Comment: Some commenters recommended decreasing the age criterion
to "no
later than age 14," and requiring a statement of explanation for
any 14 or 15-year old student not receiving such services.
Another commenter recommended that the required age for providing
transition services be lowered to age 15.

Discussion: Section 602(a)(20) of the Act provides that IEPs
must include a statement of needed transition services for
students beginning no later than age 16, but adds qualifying
language related to students below 16 (i.e., "...and, when
determined appropriate for the individual, beginning at age 14 or
younger."). The Secretary believes that it would be inconsistent
with the Act to mandate services for all students beginning at
age 14 or 15, or to require public agencies to include a
statement in a student's IEP explaining why the IEP team
determined that transition services were not appropriate.

Although there is no statutory base to mandate transition
services for all students beginning at age 14 or younger, the
Secretary believes that the provision of these services could
have a significantly positive effect on the employment and
independent living outcomes of these students in the future,
especially for students who are likely to drop out before age 16.
As indicated in the Report of the House Committee on Education
and Labor on Pub. L. 101-476:

Although this language leaves the final determination of when to
initiate transition services for students under age 16 to the IEP
process, it nevertheless makes clear that Congress expects
consideration to be given to the need for transition services for
some students by age 14 or younger. The Committee encourages
that approach because of their concern that age 16 may be too
late for many students, particularly those at risk of dropping
out of school and those with the most severe disabilities. Even
for those students who stay in school until age 18, many will
need more than two years of transitional services. Students with
disabilities are now dropping out of school before age 16,
feeling that the education system has little to offer them.
Initiating services at a younger age will be critical. (House
Report No. 101-544, 10 (1990).)
Therefore, the Secretary encourages public agencies to provide
transition services to students below age 16 when there is a need
for those services.

Changes: A new Note 3 has been added to reflect the above
discussion.


Agency responsibilities for transition services (Sec. 300.347)

Comment: Several commenters expressed concerns about the costs
of transition services to educational agencies and requested
clarification about the financial responsibilities of other
agencies for these services. Two commenters suggested that the
regulations require interagency agreements concerning transition
services. One commenter suggested that the requirement to
reconvene the IEP team in proposed Sec. 300.347(a) be deleted.
One
commenter requested that the regulations include a time limit for
reconvening the IEP team when a participating agency fails to
provide agreed upon services. Another commenter requested that
the requirement to reconvene be revised to specify that only the
agencies necessary to the particular issue attend the meeting.
One commenter requested that the phrase "to be implemented" be
deleted from the description of the "alternative strategies" that
the reconvened team would identify.

Discussion: Comments regarding the costs of providing transition
services are discussed under Sec. 300.346. It is not necessary to
add a provision requiring interagency agreements on transition
services because the requirements of Sec. 300.152 ("Interagency
agreements") apply to transition services.

The Secretary agrees that, in order to ensure that there will not
be any undue delay in providing needed transition services to a
student, the regulation should include some time-limited standard
for reconvening a meeting to identify alternative strategies.
The Secretary also agrees that the phrase "to be implemented" is
unnecessary. However, the Secretary believes that the statute,
which requires that the IEP team be reconvened, requires the
public agency to reconvene all members of the team.

When an IEP team is reconvened, an alternative strategy may be
able to be identified without changing the student's IEP. In
other cases, the IEP team may find it necessary to revise the IEP
to include alternative ways to meet the goals that were
identified.
Changes: Section 300.347(a) has been revised by

(1) requiring
that the meeting of the IEP team be initiated "as soon as
possible," after a participating agency fails to provide agreed-
upon services,

(2) deleting the phrase "to be implemented," and


(3) adding at the end of the paragraph "and, if necessary,
revising the student's IEP."

In addition to changes made based on the comments received, the
following other changes have been made:

(1) the definition of
IEP in Sec. 300.340 of the current regulations is now designated
Sec. 300.340(a);

(2) the definition of "participating agency" in
proposed Sec. 300.347(b) has been moved from Sec. 300.347 and
added as a
definition under new Sec. 300.340(b); and

(3) proposed Sec. 300.347(c) in
the NPRM has been redesignated as Sec. 300.347(b).

Comment: Several commenters requested that the regulations
clarify that transition services can continue to be provided to
students after graduation. One commenter asked for clarification
of the responsibility to reconvene the IEP team after graduation.

Discussion: Part B of the Act neither requires nor prohibits the
provision of services to a student after the student has
completed the State's graduation requirements. Thus, if a
student is still within the eligible age range for FAPE within
the State, the State, at its discretion, could continue to
provide needed transition services to the student and use funds
under this part to pay for the transition services, or contribute
to the cost of those services through a shared cost arrangement
with another agency -- provided that all applicable requirements
of this part are met.

Changes: None.


General (Sec. 300.380)

Comment: A few commenters requested that the proposal to require
the highest requirements in the State applicable to a specific
profession or discipline be eliminated. Another commenter
requested that the "highest standards" be defined, and one
commenter asked if these standards applied to related services
and support personnel.

Discussion: The Secretary believes that a State's CSPD should be
consistent with the personnel standards requirements in Sec.
300.153.
Those standards apply to all personnel who provide special
education or related services to children with disabilities.
"Highest requirements in the State applicable to a specific
profession or discipline" is defined in Sec. 300.153 to be State-
specific.

Changes: No change has been made in response to the comments.
However, a technical change has been made by Pub. L. 102-119 to
require that States ensure that the CSPD under Part B is
consistent with the purposes of the IDEA and the CSPD for the
Part H program.

Adequate supply of qualified personnel (Sec. 300.381)

Comments: Several commenters requested that proposed Sec.
300.381(c)
be deleted or clarified to indicate that it is not mandatory for
all teacher aides to acquire credentials for teaching special
education from institutions of higher education. One commenter
requested that the requirement in the current Sec. 300.381(a)
that
other agencies have the opportunity to participate in the
development, review, and annual update of the CSPD be retained.

Another commenter requested the addition of consumer and parent
involvement in the plan development. One commenter requested
reorganization of the section for consistency with the statute.
A few commenters requested clarification of the term "leadership
personnel." Some commenters requested clarification concerning
whether the provisions of this section apply to personnel who are
seeking advanced degrees or degrees in new areas of
specialization. One commenter requested that proposed Sec.
300.381
include a specific reference to Sec. 300.153(a).

Discussion: The Secretary agrees that Sec. 300.381(c) should be
deleted from the regulations. While States may choose to take
steps to enable teacher aides and other paraprofessionals to
acquire the necessary credentials for teaching special education
as one method to ensure an adequate supply of qualified
personnel, it is not appropriate to require that all States use
this option.

Section 300.383(b)(3) specifies the kinds of personnel that are
included under "leadership personnel." With respect to whether
the provisions of this section apply to personnel who are seeking
advanced degrees or degrees in new areas of specialization, a
State is not prohibited from using funds under this part for
those purposes so long as this use is not inconsistent with the
priorities in Sec. 300.320-300.324.

The Secretary believes that it is not necessary to add a
requirement related to the participation of parents and consumers
on a State's CSPD because States are required to obtain their
involvement through the State advisory panel required under
Sec. 300.650. This panel has among its functions, responsibility
for
advising the SEA of unmet needs within the State and commenting
publicly on the State's Part B plan and regulations (see
Sec. 300.652). The membership of this panel must include "persons
involved in or concerned with the education of children with
disabilities," such as parents as well as representatives from a
wide variety of groups. State educational agencies also have the
discretion to expand the membership of this panel as needed (see
Sec. 300.651). In addition, there is nothing in the Act or this
part
that would preclude States from consulting with parents and
consumers on their CSPDs.

The Secretary does not believe that further changes to the
proposed regulations in this section are necessary. The
regulations proposed in the NPRM reflect the Secretary's
intention to increase States' flexibility in ensuring
comprehensive personnel development.
Changes: Section 300.381(c) has been deleted.


Personnel preparation and continuing education (Sec. 300.382)

Comments: Commenters requested the deletion of proposed
Sec. 300.382(b) because it defined regular education personnel
too
narrowly and conflicted with the LRE requirements at Sec.
300.550.
Two commenters requested that Sec. 300.382 of the current

regulations, which addresses inservice training, be retained; one
of the commenters also requested that the section be revised to
provide for the training of hearing officers, administrative law
judges, and parents. Another commenter suggested that the
procedures and activities required by proposed Sec. 300.382(a)
should
be explicitly tied to a specific needs assessment process.

Discussion: The Secretary agrees with commenters that proposed
Sec. 300.382(b) should be deleted from the final regulations
because
it implies that public agencies must provide such preparation
only to certain categories of regular education personnel.
Section 300.550 of the regulation requires that, to the maximum
extent appropriate, children with disabilities are to be educated
with children without disabilities. Through the implementation
of this requirement, all regular education personnel, including
administrators, teachers, counseling staff, and
paraprofessionals, are potentially involved in the provision of
education or services to children with disabilities.

With respect to the training of hearing officers, administrative
law judges, and parents, Sec. 300.370(b)(2) already permits a
State
to use funds under this part for that purpose.

The Secretary does not agree that the other requested changes
should be made. The requirements proposed in the NPRM reflect
the Secretary's intention to increase States' flexibility in this
area. The Secretary believes that sufficient guidance is
provided.
Changes: Section 300.382(b) has been deleted. A statement has
been added to clarify that a purpose of the system of continuing
education is to enable regular and special education and related
services personnel to meet the needs of children with
disabilities under Part B.

Data system on personnel and personnel development (Sec. 300.383)

Comment: Some commenters requested the inclusion of data on
vision specialists, and several commenters requested the
inclusion of data on personnel providing assistive technology.
One commenter requested clarification of what types of special
education personnel, in addition to the list of related service
personnel provided in the NPRM, are covered by Sec.
300.383(b)(2).
Clarification on data collection regarding contract providers as
opposed to personnel who are employees was requested.

One commenter suggested use of the phrase "profession and
discipline" instead of "area of specialization" in Sec.
300.383(c).
Another commenter requested the deletion of the data requirements
in Sec. 300.383(b)(1)(ii) concerning personnel who do not hold
appropriate State certification, licensure or other credentials
comparable to certification or licensure for that profession or
discipline. This commenter proposed the addition of data
requirements in two categories: personnel who meet and those who
do not meet the highest requirements in the State. Other
commenters stated that the data collection requirements
constituted an unreasonable burden on the States and that the
data were not relevant to providing special education and related
services. Another commenter stated that the States do not have
the necessary authority to collect the data regarding higher
education.

Several commenters objected to the deletion of Sec.
300.384-300.387.
One commenter requested that the regulations require inclusion of
the data specified in Sec. 300.383 in the State plan.

Discussion: Section 300.383(b)(2) of the NPRM requires the
collection of data regarding all personnel who provide or are
needed to provide special education and related services,
including vision specialists and personnel providing assistive
technology. The Secretary believes that sufficient guidance is
provided in this section and that no other clarification is
needed. In response to requests for changes in the language in
the section, as well as questions regarding the authority to
require data, the language referred to and the authority to
require data were added by Pub. L. 101-476, and the Secretary
regards those provisions as sufficient. Finally, the CSPD
provisions in the NPRM simplify and distill the fundamental
requirements contained in Sec. 300.384-300.387 of the current
regulations and fully implement requirements added by Pub. L.
101-476. The new provisions give States greater flexibility in
implementing the CSPD requirements than was possible under the
current regulations. Therefore, the Secretary believes that the
language in the NPRM should be retained in the final regulations.

Changes: None.

Prior notice; parent consent (Sec. 300.504(d))

Comment: The proposed Sec. 300.504(d) provides that States
establishing additional State consent requirements must ensure
that public agencies have informal and formal procedures for
dealing with parental withholding of consent to those
requirements. Some commenters suggested deleting all or part of
Sec. 300.504(d), stating that current procedures are adequate to
ensure the provision of services to children; one of those
commenters recommended that no requirements be added unless they
are expressly found in the statute.

Some commenters indicated that in order to increase the States'
flexibility when a parent withholds consent under additional
State consent requirements, informal procedures for resolving
disagreements between the parent and the public agency should be
encouraged but not required. One commenter requested standards
for informal procedures. Commenters also expressed concern about
the potential for confusion if States are permitted to adopt
additional consent requirements. A commenter indicated that
proposed Note 3 should be revised to make it permissive to use
formal procedures if informal procedures fail. One commenter
requested modification of Sec. 300.504(d) to provide for an
expedited
resolution in the form of an intermediate ruling so that a change
in placement could occur before final resolution of an
administrative proceeding.

Discussion: The Secretary believes that States should have the
discretion to adopt additional parental consent requirements.
Nothing in the Part B statute prohibits a State from implementing
additional consent requirements that give parents additional
procedural protections and do not otherwise conflict with the
procedural protections guaranteed under Part B. The provisions
that have been added to Sec. 300.504 are for the purpose of
ensuring
that additional State consent requirements will be implemented in
a manner that is consistent with the procedural protections
guaranteed under Part B.

The Secretary agrees that proposed paragraph (d)(2), which
requires informal and formal procedures for overriding parental
withholding of consent, and proposed paragraph (d)(3), which
permits States to designate the due process procedures in
Sec. 300.506-300.513 as the formal procedures for overriding
parental withholding of consent, should be deleted to avoid
imposing an additional and unnecessary burden on States, and to
give States flexibility in implementing consent override
procedures. However, with regard to additional State consent
requirements, consent override procedures must be implemented, if
necessary, to ensure that children with disabilities continue to
receive FAPE. In addition, the Secretary believes that it is
important for the prohibition of the current Sec. 300.504(b)(2)
that
"[e]xcept for preplacement evaluation and initial placement,
consent may not be required as a condition of any benefit to the
parent or child" to apply to any other areas in which the State
requires consent.

Changes: Sections 300.504(d)(2) and 300.504(d)(3) of the NPRM
have been deleted. The consent requirements in the current
regulations have been reorganized and revised

(1) to provide that
if a State requires additional consent requirements, the State
must ensure that each public agency in the State establishes and
implements effective procedures to ensure that individual
children continue to receive FAPE, and

(2) to ensure that a
public agency does not require parental consent as a condition of
any benefit except for services or activities covered by the
Federal consent requirements and the additional State consent
requirements. Note 3 has been revised to indicate that if
parental consent is refused, and the public agency determines
that the service or activity in dispute is necessary to provide
FAPE to the child, the agency must implement its procedures to
override the refusal.

Hearing rights (Sec. 300.508(a)(5))

Comment: Commenters wondered whether the Secretary had the
authority under the statute to require that hearing decisions be
made public and expressed concern about the cost of implementing
this requirement without the addition of new funds. One
commenter requested the addition of "within a reasonable time" as
a time frame for availability of the decisions. Commenters also
requested clarification concerning which hearing decisions are
covered and what format is required for dissemination of
decisions. One commenter requested that administrative complaint
decisions also be included within this requirement. One
commenter suggested that summaries be permitted.

Discussion: The Secretary believes that no change is necessary
for this section. The requirement that the public agency make
hearing findings and decisions available to the State advisory
panel and the general public after deleting any personally
identifiable information is set forth at 20 U.S.C. 1415(d)(4).
It is not necessary to add language requiring that the decisions
be made available "within a reasonable period of time" because
that concept is implicit.

The types of hearing decisions that must be made available to
the public and transmitted to the State advisory council include
due process hearing decisions under Sec. 300.506(a) and review
decisions under Sec. 300.510 (see comment and discussion under
Sec. 300.510, following). The provisions of 20 U.S.C. 1415(d) do
not
apply to administrative complaint decisions under Sec. 300.660-

300.662. However, those decisions may be made available to the
public at the discretion of the SEA. The format for
disseminating decisions is also an individual SEA decision.

Changes: None.

Administrative appeal; impartial review (Sec. 300.510(c),(d), and
Note 1)

Comments: The NPRM proposed to add a new paragraph (c) to
Sec. 300.510, and to revise Note 1 following the section, to
clarify
which officials may not conduct State-level reviews under this
program. A number of commenters requested that the proposed
paragraph and note be deleted from the final regulations. The
comments included objections that the regulation goes beyond the
scope of IDEA, and that it is contrary to some judicial opinion.
One commenter stated that the regulation does not recognize that
there is a distinction between the statutory requirements
applicable to hearings and to State-level reviews. Another
commenter stated that the proposed regulation conflicts with the
SEA's obligation to conduct a review. One commenter felt that
the need for the individual conducting the review to have special
knowledge and training virtually required that the person be
employed by the SEA. A commenter requested that the regulation
be revised to permit the SEA to hire individuals whose primary
role would be to conduct reviews, with some conditions
established to ensure impartiality. Other commenters requested

(1) further definition of "employee" of the SEA or any other
public agency that may not conduct a review,

(2) that language be
added to indicate that the review may not be conducted by a
person having a personal or professional interest that would
conflict with the person's objectivity, and

(3) that the
regulation require knowledge of special education by the
reviewing official.

A commenter requested that the requirement at proposed
Sec. 300.508(a)(5) concerning transmitting written findings of
fact
and decisions to the State advisory panel be applied to State-
level review decisions.

Discussion: Based on the lack of consensus about the proposed
change on State-level review officials and the wide variety of
alternative suggestions offered, the Secretary has determined
that the current regulation remains the best guidance at this
time.

The Secretary interprets the requirement set forth at 20 U.S.C.
1415(d)(4) to require that both hearing and review decisions must
be available to the public and transmitted to the State advisory
panel.

Changes: Proposed Sec. 300.510(c) and the change in Note 1 have
been
deleted. Paragraph (c) of the current regulations (regarding the
finality of decisions) has been redesignated as paragraph (d),
and a new paragraph (c) has been added to require that review
findings and decisions be made available to the State advisory
panel and to the public, after deleting any personally
identifiable information.


Adoption of State complaint procedures (Sec. 300.660)

Comment: One commenter requested that the requirements on State
complaint procedures in proposed Sec. 300.660 through 300.662 be
deleted because they exceed statutory authority. Two commenters
requested that the requirement to review an appeal from a
decision of a public agency with respect to a complaint be
deleted or revised. Another commenter requested that the
complaint procedures be retained in 34 CFR 76.780-76.783 until
the proposed Sec. 300.660-300.662 have been in effect for a
period
of time.
Commenters also requested clarification about whether the
complainant can by-pass filing a complaint with an LEA and file
the complaint directly with the SEA.

Discussion: The Secretary believes that proposed Sec. 300.660-
300.662, with certain modifications, should be retained and that
they are generally consistent with the requirements previously in
the EDGAR regulations at 34 CFR 76.780-76.782. The Secretary
agrees that clarification is needed regarding the circumstances
under which a complainant can file a complaint with an LEA and
those when a complainant can file directly with the SEA.
Proposed Sec. 300.662 provides for complaints to be filed with
the
State. However, a revision is needed to allow an SEA, at its
discretion, to have procedures that allow complainants to elect
to file a complaint with an LEA or other public agency and to
request the SEA to review that agency's decision on the
complaint. The SEA must review the public agency's decision to
ensure that the complaint was resolved.

Changes: Proposed Sec. 300.660(a) and (b) (redesignated as
Sec. 300.660(a)(1) and (a)(2) in these final regulations) have
been
revised to specify that the SEA's procedures must provide for
filing a complaint directly with the SEA, and may, at the SEA's
discretion, permit the filing of a complaint with the public
agency, including the right to have the SEA review the public
agency's decision on the complaint. The provision in proposed
paragraph (c), regarding the SEA's procedures for conducting an
independent on-site investigation of a complaint, has been
deleted, because it is already required in the section on
"Minimum State complaint procedures" (Sec. 300.661). Proposed
Sec. 300.660(d) has been redesignated as Sec. 300.660(b).

Comment: One commenter requested the deletion of the proposed
requirement that parents be informed about complaint procedures
because it is too burdensome for public agencies. Another
commenter suggested that the requirement to adopt procedures for
informing parents about the State complaint procedures be changed
to informing complainants.

One commenter requested that the proposed regulation be revised
to clarify the scope of complaints that States must investigate
and to provide that States are not required to investigate
matters that are the subject of a due process hearing under
Sec. 300.506. Another commenter requested that mediation be
required
as a step prior to filing a complaint.

Several commenters requested guidelines and clarification for
determining the responsibility of the State to conduct an
independent review. Another commenter requested that the
regulation be revised to provide that the SEA need not resolve a
complaint if it has been resolved voluntarily.

One commenter requested that States be required to make
complaint decisions available to the public. One commenter
requested that the States be required to submit complaint
management procedures as part of the State plan.

A commenter requested that a note be added to indicate that a
State may use these procedures to resolve a complaint that an
agency is violating the requirements of Section 504 of the
Rehabilitation Act of 1973.

Discussion: The Secretary believes that it is essential for
parents and other interested individuals to be informed about
their right to file a complaint and that this requirement is not
unreasonably burdensome. Public agencies may choose to provide
this information as part of the explanation of procedural
safeguards in the notice requirements under Sec. 300.504(a) and
Sec. 300.505(a)(1) or Sec. 300.505(a)(2), or may use other means.

The Secretary believes that no further guidance is needed
regarding the parent's right to file a complaint and request a
due process hearing regarding the same issues. A parent has the
right to file a complaint under proposed Sec. 300.660-300.662 and
to
initiate a hearing under Sec. 300.506 regarding the same issue.
However, in order to avoid the possibility of inconsistent
decisions on the same subject matter and waste of government
resources, a State may delay resolution of identical issues
raised in a complaint while those same issues are pending in a
due process hearing. This does not relieve the SEA of its
responsibility to resolve other issues in the complaint that are
not identical to those raised under Sec. 300.506.

It is not necessary to include a provision regarding mediation in
the regulations. A State may include procedures that permit, but
do not require, complainants to participate in mediation prior to
filing a complaint. However, those procedures may not be used to
deny or delay the right of an individual or organization to file
a complaint or use the due process procedures in Sec. 300.506.

The Secretary believes that no further guidance is needed related
to conducting an independent review by the SEA, or regarding a
State's responsibility to resolve a complaint that has been
voluntarily resolved. It is implicit in proposed Sec. 300.660 and
300.661 that a State need not resolve a complaint that has been
otherwise resolved to the satisfaction of the complainant.

The Secretary believes that it would be unnecessarily burdensome
to require SEAs to make complaint decisions available to the
public or to include their complaint resolution procedures in
their Part B State plan.

Changes: None.


Minimum State complaint procedures (Sec. 300.661)

Comment: Several commenters requested that proposed
Sec. 300.661(a)(2), regarding the opportunity for the complainant
to
submit additional information, be deleted or revised. One
commenter suggested that the regulations specify that the
respondent should be given the opportunity to submit additional
information in response to the allegations of the complainant.

Several commenters stated that the required complaint procedures
are too specific. Another commenter requested that proposed
Sec. 300.661 be revised to permit a State to determine its own
procedures. Other commenters stated that the requirement that
written decisions include findings of fact and conclusions and
the reasons for the SEA's final decision is burdensome, too
formal, and makes the complaint less amenable to resolution.

Discussion: The Secretary believes that proposed Sec.
300.661(a)(2)
should be retained. As noted in the preamble to the NPRM, "many
complainants have not been consulted in connection with complaint
resolutions under this program in instances in which their input
could have been helpful in facilitating the complaint resolution.
Thus, proposed Sec. 300.661(a)(2) requires each SEA to have
procedures for soliciting input from the complainant as part of
its minimum complaint procedures." The Secretary believes that
as a matter of course the SEA would consider additional
information submitted by the public agency that is the subject of
a complaint.

The Secretary believes that the provisions in proposed
Sec. 300.661(a)(4)(i) and Sec. 300.661(a)(4)(ii), regarding the
content
of the SEA's written decision to the complainant, should be
retained. These provisions do not prescribe the format or level
of formality in which this information must be provided.
Moreover, the Secretary believes that the information required is
the minimum necessary to enable the Secretary to review the final
decision of the State where such review has been requested.

Changes: None.

Comment: One commenter requested that the regulations be revised
to clarify that either party to a complaint may request review by
the Secretary. Another commenter requested that language be
added to encourage local resolution of complaints. Another
commenter requested a revision to indicate that the 60-day time
limit for issuing a written decision does not begin until after
all documents have been received by the SEA.

Discussion: The Secretary agrees that proposed Sec. 300.661(d)
should be revised to clarify that the public agency that is the
subject of the complaint also has the right to request
secretarial review.

The proposed regulations neither preclude nor discourage the use
of informal or local complaint procedures as an alternative to
the formal complaint procedures set forth in these regulations.
Some States have pointed to the success of informal conflict
resolution procedures as an alternative to the formal procedures
set forth in Sec. 300.660-300.662. Public agencies may wish to
suggest that parents and other complainants use these alternative
procedures. However, these alternative procedures may not be
used to deny or delay the right of an individual or organization
to file a complaint with the State.

The Secretary believes that the 60 day time limit begins on the
date that the complaint is received by the SEA. This requirement
is consistent with Sec. 300.671(a) (previously, 34 CFR 76.781(a))
and
long-standing Department policy.

Changes: The requirement in proposed Sec. 300.661(a)(1)
(regarding
the SEA's procedures to carry out an on-site investigation) has
been revised to add the statement "if the SEA determines that
such an investigation is necessary." (This statement was included
in proposed Sec. 300.660(c).) Section 300.661(d) now indicates
that
a public agency has the right to request secretarial review.


Filing a complaint (Sec. 300.662)

Comment: Several commenters requested that the regulations be
revised to require greater specificity in the content of
complaints that are filed under this part. In particular, one
commenter suggested that the name and address of the complainant
and involved student and the specific requirements of Part B that
have been violated be required. Commenters further suggested
that a note be added to indicate that this requirement may be met
by a "factual statement." One commenter requested that
submission of anonymous complaints be permitted, and another
requested that oral complaints be permitted.

Discussion: The Secretary does not believe that proposed
Sec. 300.662 should be revised to set forth additional content
requirements for filing complaints under this part. Sufficient
guidance is provided in these regulations, and some of the
requested changes would be unduly burdensome upon parents and
other complainants. The Secretary also does not believe that
proposed Sec. 300.662 should be revised to require that States
resolve anonymous and non-written complaints. The Secretary
believes that it is reasonable for States to require that
complaints be written and signed as a part of an orderly
complaint resolution process, and that States, at their option,
may include these requirements. These provisions are not
intended to preclude a State from also accepting and resolving
oral complaints if the State chooses to do so.

Changes: Non