_______________________________________________________________________ Part II Department of Education _______________________________________________________________________ 34 CFR Parts 300 and 303 Assistance to States for the Education of Children With Disabilities and the Early Intervention Program for Infants and Toddlers With Disabilities; Final Regulations DEPARTMENT OF EDUCATION 34 CFR Parts 300 and 303 RIN 1820-AB40 Assistance to States for the Education of Children With Disabilities and the Early Intervention Program for Infants and Toddlers With Disabilities AGENCY: Office of Special Education and Rehabilitative Services, Department of Education. ACTION: Final regulations. ----------------------------------------------------------------------- SUMMARY: The Secretary issues final regulations for the Assistance to States for Education of Children with Disabilities program under Part B of the Individuals with Disabilities Education Act (IDEA; Part B) and the Early Intervention Program for Infants and Toddlers with Disabilities under Part C of the Act (Part C). These regulations are needed to implement changes made to Part B by the IDEA Amendments of 1997; make other changes to the part B regulations based on relevant, longstanding policy guidance; and revise the requirements on State complaint procedures under both the Part B and Part C programs. DATES: These regulations take effect on May 11, 1999. However, compliance with these regulations will not be required until the date the State receives FY 1999 funding (expected to be available for obligation to States on July 1, 1999) under the program or October 1, 1999, whichever is earlier. Affected parties do not have to comply with the information collection requirements contained in the regulations listed under the Paperwork Reduction Act of 1995 section of this preamble until the Department publishes in the Federal Register the control number assigned by the Office of Management and Budget (OMB) to these information collection requirements. Publication of the control numbers notifies the public that OMB has approved these information collection requirements under the Paperwork Reduction Act of 1995. FOR FURTHER INFORMATION CONTACT: Thomas Irvin or JoLeta Reynolds (202) 205-5507. Individuals who use a telecommunications device for the deaf (TDD) may call (202) 205-5465. Individuals with disabilities may obtain this document in an alternate format (e.g., Braille, large print, audiotape, or computer diskette) on request to Katie Mincey, Director of the Alternate Formats Center. Telephone: (202) 205-8113. SUPPLEMENTARY INFORMATION: On October 22, 1997, the Secretary published a notice of proposed rulemaking (NPRM) in the Federal Register (62 FR 55026) to amend the regulations governing the Assistance to States for Education of Children with Disabilities program (part 300), the Preschool Grants for Children with Disabilities program (part 301), and the Early Intervention Program for Infants and Toddlers with Disabilities (part 303). A key purpose of the NPRM was to implement changes made by the IDEA Amendments of 1997 (Pub. L. 105-17). Since that time, the Department has published final regulations for both the Preschool Grants program (63 FR 29928, June 1, 1998) and the Early Intervention program for Infants and Toddlers with Disabilities (63 FR 18297, April 14, 1998), to incorporate the requirements added to those programs by Pub. L. 105-17. On April 14, 1998, a document was published in the Federal Register inviting comment on whether the regulations for the Early Intervention program for Infants and Toddlers with Disabilities should be further amended (63 FR 18297). (A subsequent document reopening the comment period was published on August 14, 1998 (63 FR 43866)). The final regulations in this publication are needed to conform the existing regulations under Part B of the Act to the new statutory requirements added by Pub. L. 105-17, including (1) amending requirements under prior law related to areas such as State and local eligibility, evaluation, and individualized education programs (IEPs), and (2) incorporating new requirements in the Act (e.g., those relating to discipline, performance goals and indicators, participation of children with disabilities in State and district-wide assessments, procedural safeguards notice, and mediation). The regulations have also been amended to incorporate relevant longstanding interpretations of the Act that have been addressed in nonregulatory guidance in the past and are needed to ensure a more meaningful implementation of the Act and its regulations for children with disabilities, parents, and public agencies. These interpretations are based on the statutory provisions of the IDEA that were in effect prior to the IDEA Amendments of 1997 and that were not changed by those Amendments. Examples of provisions of the regulations that incorporate prior Department interpretations of the statute include: Section 300.7(c)(9)--recognizing that some children with attention deficit disorder (ADD) may be identified under the category of other health impairment; Section 300.19--recognizing that foster parents may, under certain circumstances and if permitted under State law, qualify as a ``parent'; Section 300.121(c)--recognizing that if a child's third birthday is in the summer, the child's IEP team determines the date when services begin under the child's IEP or IFSP. (The team must develop the IEP or IFSP by the child's third birthday.); Section 300.122(a)(3)--recognizing that graduation with a regular high school diploma ends the child's eligibility under Part B; Section 300.309--recognizing that extended school year services must be provided if necessary for the provision of a free appropriate public education to the child; and Section 300.519--identifying what constitutes a change of placement for disciplinary purposes under these regulations. In addition, changes have been made to the requirements on State complaint procedures in the regulations for Part B (Secs. 300.660- 300.662), and conforming changes have been made in the Part C regulations (Secs. 303.510-303.512). Analysis of Comments and Changes In response to the Secretary's invitation to comment on the NPRM published in the Federal Register on October 22, 1997 (62 FR 55026), about 6,000 individuals, public agencies, and organizations submitted written or oral comments. An analysis of the public comments received, including a description of the changes made in the proposed regulations since publication of the NPRM, is published as Attachment 1 to these final regulations. The perspectives of individuals and groups of parents, teachers, related service providers, State and local officials, individuals with disabilities and members of Congress were very important in helping to identify where changes were necessary in the proposed regulations, and in formulating many of those changes. The detailed, thoughtful comments of so many individuals and organizations clearly demonstrated a high level of commitment to making sure that the IDEA and its regulations make a real difference in the day-to-day education of our children. In light of the comments received, a number of significant changes are reflected in these final regulations. Effective Date of These Regulations These regulations take effect on May 11, 1999. As these regulations were not in effect at the time Federal fiscal year(FY) 1998 funds (funds for use during school year 1998-99) became available for obligation to States, compliance with the requirements of these regulations, that are not statutory requirements or provisions of pre-existing regulations, will not be mandatory for this grant year. When either the FY 1998 funds that are unobligated by States and school districts become carryover funds (October 1, 1999) or, if earlier, the State receives FY 1999 funding (expected to be available for obligation to States July 1, 1999) compliance with these final regulations is required. This will enable all parties to become familiar with the new regulations without requiring changes that could interrupt school or program operations in the middle of a grant year. However, States and school districts may adopt and use these regulations when they are effective, and are encouraged, to the greatest extent possible, to start to implement them as soon as possible during this school year. In any case, the statutory requirements of the Individuals with Disabilities Education Act Amendments of 1997 (IDEA Amendments of 1997) are in effect and must be complied with throughout the 1998-99 school year. In addition, States and school districts must comply with all requirements of the Part 300 regulations that were in effect at the beginning of this school year unless inconsistent with the IDEA Amendments of 1997 or these final regulations. Applications for grants for FY 1999 funds must be consistent with the requirements of these final regulations. Most of the provisions of the IDEA Amendments of 1997 relating to Parts B and C of the Act have been in effect since enactment, June 4, 1997, with a few provisions, such as the new Part B provisions concerning individualized education programs and the comprehensive system of personnel development, taking effect on July 1, 1998. Therefore, States and school districts already are familiar with the statutory provisions of the IDEA Amendments of 1997 to which they must comply. Major Changes in the Regulations The following is a summary of the major substantive changes from the NPRM in these final regulations: 1. General Changes All notes in the NPRM related to the sections or subparts covered in these final regulations have been removed. The substance of any note that should be required for proper implementation of the Act has been added to the text of these final regulations. Information in notes considered to be directly relevant to the ``Notice of Interpretation'' on IEP requirements has been added to the text of that notice in Appendix A to these final regulations. The substance of any note considered to provide clarifying information or useful guidance has been incorporated into the discussion of the applicable comments in the ``Analysis of Comments and Changes'' (see Attachment 1 to these final regulations). All other notes have been deleted. Appendix C in the NPRM (``Notice of Interpretation on IEPs) has been redesignated as ``Appendix A'' in these final regulations; and a new Appendix B--Index to IDEA Part B Regulations has been added. Three attachments have also been added: Attachment 1-- Analysis of Comments and Changes; Attachment 2--Final Regulatory Flexibility Analysis; and Attachment 3--Table showing ``Disposition of NPRM Notes in Final Part 300 and 303 Regulations.'' However, these attachments will not be codified in the Code of Federal Regulations. 2. Changes in Subpart A--General Proposed Sec. 300.2 (Applicability of this part to State, local, and private agencies) has been revised to include ``public charter schools that are not otherwise included as local educational agencies (LEAs) or educational service agencies (ESAs) and are not a school of an LEA or ESA'' and to specify that the rules of Part 300 apply to all public agencies in the State providing special education and related services. Consistent with the general decision to not use notes in these final regulations, proposed Note 1 immediately preceding Sec. 300.4 in the NPRM, (which included a list of terms defined in specific subparts and sections of the regulations) has been deleted and the terms included as part of an index to these regulations (see Appendix B). The proposed definition of ``child with a disability'' (Sec. 300.7(a)) has been revised to clarify that if a child with a disability needs only a related service and not special education, the child is not eligible under this part; but if the related service is considered to be special education under State standards, the child would be eligible. The proposed definition of ``other health impairment'' (``OHI''), at Sec. 300.7(c)(9), has been amended to (1) add ``attention deficit disorder'' (ADD) and ``attention deficit hyperactivity disorder'' (ADHD) to the list of conditions that could render a child eligible under OHI, and (2) clarify that, with respect to children with ADD/ADHD, the phrase ``limited strength, vitality, or alertness'' includes ``a child's heightened alertness to environmental stimuli that results in limited alertness with respect to the educational environment.'' The proposed definition of ``Day'' (Sec. 300.9) has been retitled ``Day; business day; school day,'' and definitions of ``business day'' and ``school day'' have been added. The proposed definition of ``educational service agency'' (Sec. 300.10) has been revised to clarify that the term ``[i]ncludes entities that meet the definition of ``intermediate educational unit'' in section 602(23) of IDEA as in effect prior to June 4, 1997.'' The proposed definition of ``general curriculum'' in Sec. 300.12 of the NPRM and the explanatory note following that section have been deleted. The term is explained where it is used in Sec. 300.347 and in Appendix A regarding IEP requirements. The proposed definition of ``local educational agency'' (Sec. 300.18) has been amended to clarify, consistent with new statutory language concerning public charter schools, that the term includes public charter schools that are established as an LEA under State law. The proposed definition of ``native language'' (Sec. 300.19) has been amended to specify that (1) in all direct contact with a child (including evaluation of the child), the native language is the language normally used by the child in the home or learning environment, and (2) for an individual with deafness or blindness, or with no written language, the mode of communication is that normally used by the individual (such as sign language, braille, or oral communication). The proposed definition of ``parent'' has been amended to (1) add language clarifying that the term means a natural or adoptive parent of a child and a person acting in the place of a parent (such as a grandparent or stepparent with whom the child lives, or a person who is legally responsible for the child's welfare), and (2) permit States in certain circumstances to use foster parents as parents under the Act unless prohibited by State law. The proposed definition of ``public agency'' (Sec. 300.22) has been amended to add to the list of examples of a public agency ``public charter schools that are not otherwise included as LEAs or ESAs and are not a school of an LEA or ESA'', consistent with new statutory language concerning public charter schools. The proposed definition of ``parent counseling and training,'' under the definition of ``related services,'' (Sec. 300.24(b)(7)) has been amended to add that the term also means ``helping parents to acquire the necessary skills that will allow them to support the implementation of their child's IEP or IFSP.'' The proposed definition of ``special education'' (Sec. 300.26) has been amended to add ``travel training'' as a special education service and to include a definition of the term. 3. Changes in Subpart B--State and Local Eligibility State Eligibility Proposed Sec. 300.110 (Condition of assistance) has been amended to more explicitly state what is required for compliance with the State eligibility requirements. Proposed Sec. 300.121 (FAPE) has been amended to specify (1) requirements for providing FAPE for children with disabilities beginning at age 3; (2) that services need not be provided during periods of removal under Sec. 300.520(a)(1) to a child with a disability who has been removed from his or her current placement for 10 school days or less in that school year, if services are not provided to a child without disabiliities who has been similarly removed; (3) the standards that are used to determine appropriate services for children with disabilities who have been removed from their current placement for more than 10 school days in a school year; (4) that LEAs must ensure that FAPE is available to any child with a disability who needs special education and related services, even though the child is advancing from grade to grade; and (5) that the determination that a child who is advancing from grade to grade is eligible under this part must be made on an individual basis by the group within the LEA responsible for making eligibility determinations. Proposed Sec. 300.122 (Exception to FAPE for certain ages) has been amended to (1) specify situations in which the exception to FAPE for students with disabilities in adult prisons does not apply, and (2) make clear that graduation from high school with a regular diploma is a change in placement requiring notice in accordance with Sec. 300.503. (A related change to Sec. 300.534(c) makes clear that a reevaluation is not required for graduation with a regular high school diploma or termination of eligibility for exceeding the age eligibility for FAPE under State law.) Proposed Sec. 300.125 (Child find) has been revised to (1) clarify that the child find requirements apply to highly mobile children (e.g., migrant and homeless children), and to children who are suspected of being a child with a disability under this part, even though they are advancing from grade to grade, and (2) add needed clarifications of requirements relating to child find for children from birth through age 2 when the SEA and lead agency for the Part C program are different. Proposed Sec. 300.136 (Personnel standards) has been amended as follows: (1) The proposed definition of ``profession or discipline'' in Sec. 300.136(a)(3) has been revised to clarify that the term ``specific occupational category'' is not limited to traditional categories. (2) The policies and procedures in proposed Sec. 300.136(b) have been expanded to provide that (A) each State may determine the specific occupational categories required in the State and revise or expand them as needed; (B) nothing in these regulations requires a State to establish a specific training standard (e.g., a masters degree); and (C) a State with only one entry-level academic degree for employment of personnel in a specific profession or discipline may modify that standard, as necessary, to ensure the provision of FAPE to all eligible children. (3) Proposed Sec. 300.136(g) (State policy to address shortage of personnel) has been amended by adding provisions that (A) if a State has reached its established date for a specific profession or discipline, it may still exercise the option in redesignated Sec. 300.136(g)(1); and (B) each State must have a mechanism for serving children with disabilities if instructional needs exceed available (qualified) personnel, including addressing those shortages in its comprehensive system of personnel development if the shortages continue. Proposed Sec. 300.138 (Participation in assessments) has been amended to require appropriate modifications in the administration of the assessments, if necessary. Proposed Sec. 300.142 (Methods of ensuring services) has been amended as follows: (1) Proposed Sec. 300.142(b) (Obligation of noneducational public agencies) has been revised to specify that those agencies may not disqualify an eligible service for Medicaid reimbursement because the service is provided in an educational context. (2) Proposed Sec. 300.142(b)(2) (Reimbursement for services by noneducational public agency) has been revised to require that an LEA must provide services in a timely manner if a public noneducational agency fails to provide or pay for the services. (3) Proposed Sec. 300.142(e) has been added to make clear that a public agency may use a child's public insurance to provide or pay for services required under Part B, with certain limitations. The public agency (A) may not require parents to sign up for public insurance in order for the child to receive FAPE, (B) may not require parents to incur out-of-pocket expenses in order to file the claim for services under Part B, and (C) may not use the child's benefits under a public insurance program if that use would decrease available lifetime coverage or any other insured benefit, result in the family paying for services that would have been covered by the public insurance and are required for the child outside of the time the child is in school, increase premiums or lead to discontinuation of services or risk loss of eligibility for home and community-based waivers due to aggregate health-related expenditures. (4) The proposed provisions on children covered by private insurance have been redesignated as Sec. 300.142(f), and revised to provide that a public agency (A) may access a parent's private insurance proceeds only if the parent provides informed consent, and (B) must obtain consent each time it proposes to access those proceeds, and inform the parents that their refusal to permit such access does not relieve the public agency of its responsibility to provide all required services at no cost to the parents. (5) A new Sec. 300.142(g) has been added to permit the use of part B funds to ensure FAPE for (A) the cost of required services under these regulations if the parents refuse consent to use public or private insurance, and (B) the costs of using the parents' insurance, such as paying deductible or co-pay amounts. (6) Proposed Sec. 300.142(f) (Proceeds from public or private insurance) has been redesignated as paragraph (h), and revised to clarify that (A) the insurance proceeds received by a public agency do not have to be returned to the Department or dedicated to the part B program; and (B) funds expended by a public agency from reimbursements of Federal funds will not be considered State or local funds for purposes of State or local maintenance of effort. (7) A new Sec. 300.142(i) has been added to specify that nothing in Part B should be construed to alter the requirements imposed on a State medicaid agency, or any other agency administering a public insurance program by Federal statute, regulations or policy under Title XIX or Title XXI of the Social Security Act, or any other public insurance program. Proposed Sec. 300.148 (Public participation) has been amended to clarify that a State will be considered to be in compliance with this section if the State has subjected the policy or procedure to a public participation process that is required by the State for other purposes and is comparable to and consistent with the requirements of Secs. 300.280-300.284. Proposed Sec. 300.154 (Maintenance of State financial support) has been amended to clarify that maintenance of State financial support can be demonstrated on either a total or per-capita basis. LEA Eligibility--Specific Conditions Proposed Sec. 300.231 (Maintenance of effort) has been amended to set out the standard for meeting the maintenance of effort requirement. Proposed Sec. 300.232 (Exception to maintenance of effort) has been amended to specify that the exception related to voluntary retirement or resignation of personnel must be in full conformity with existing school board policies, any applicable collective bargaining agreement, and applicable State statutes. Proposed Sec. 300.234 (Schoolwide programs under title I of the ESEA) has been amended to make clear that an LEA that uses Part B funds in schoolwide program schools must ensure that children with disabilities in those schools receive services in accordance with a properly developed IEP and are afforded all applicable rights and services guaranteed under the IDEA. 4. Changes in Subpart C--Services Free Appropriate Public Education Proposed Sec. 300.300 (Provision of FAPE) has been amended to specify that the State must ensure that the child find requirements of Sec. 300.125 are implemented by public agencies throughout the State. Proposed Sec. 300.300 also has been amended to specify that (1) the services provided to the child under this part address all of the child's identified special education and related services needs, and (2) are based on the child's identified needs and not the child's disability category. Proposed Sec. 300.301 (FAPE--methods and payments) has been amended to add a provision requiring that the State must ensure that there is no delay in implementing a child's IEP, including any case in which the payment source for providing or paying for the special education and related services to the child is being determined. Proposed Sec. 300.308 (Assistive technology) has been amended to clarify that, on a case-by-case basis, the use of school- purchased assistive technology devices in a child's home or in other settings is required if the child's IEP team determines that the child needs access to those devices in order to receive FAPE. Proposed Sec. 300.309 (Extended school year (ESY) services) has been amended to specify that (1) ESY services must be provided only if a child's IEP team determines, on an individual basis, that the services are necessary for the provision of FAPE to the child, and (2) an LEA may not limit ESY services to particular categories of disability, or unilaterally limit the type, amount, or duration of those services. A new Sec. 300.312 (Children with disabilities in public charter schools) has been added to (1) specify that these children and their parents retain all rights under these regulations, and that compliance with part B is required regardless of whether a public charter school receives Part B funds; and (2) address the responsibilities of the following: public charter schools that are LEAs; LEAs if the charter school is a school in the LEA; and the SEA if the charter school is not an LEA or a school of an LEA. A new Sec. 300.313 (Children experiencing developmental delays) has been added to (1) clarify the circumstances under which the designation ``developmental delay'' may be used by a State or an LEA in the State; (2) permit a State or LEA that elects to use that term to also use one or more of the disability categories described in Sec. 300.7 for any child aged 3 through 9 who has been determined to have a disability and who, by reason thereof, needs special education; and (3) permit a State to adopt a common definition of developmental delay under Parts B and C of the Act. Individualized Education Programs (IEPs) Proposed Sec. 300.341 (retitled ``Responsibility of SEA and other public agencies for IEPs) has been revised to (1) consistent with provisions regarding parentally-placed children with disabilities in religious or other private schools (see changes to Subpart D), and (2) to clarify that the section also applies to the SEA if it provides direct services to children with disabilities as well as other public agencies that provide special education either directly, by contract, or through other means. Proposed Sec. 300.342(b) has been revised to provide that the child's IEP must be accessible to each of the child's teachers and service providers and that teacher and service provider with responsibility for its implementation be informed of his or her specific responsibilities under the IEP and of the specific accommodations, modifications, and supports that must be provided for the child under that IEP. Proposed Sec. 300.342(d) has been revised to state that all IEPs developed, reviewed, or revised on or after July 1, 1998 must meet the requirements of Secs. 300.340-300.350. Proposed Sec. 300.343 (IEP meetings) has been revised to clarify that special education and related services must be available to the child within a reasonable period of time following receipt of parent consent to an initial evaluation. Proposed Sec. 300.344 (IEP Team) has been amended to (1) clarify that the determination of knowledge or special expertise of ``other individuals'' under Sec. 300.344(a)(6) is made by the party who has invited the individual to be a member of the IEP team; and (2) permit a public agency to designate another public agency member of the IEP team to also serve as the agency representative, if the criteria in Sec. 300.344(a)(4) are satisfied. Proposed Sec. 300.345 (Parent participation) has been revised to clarify that (1) the public agency's notice to parents about the IEP meeting must inform them about the ability of either party to invite individuals with knowledge or special expertise to the meeting, consistent with Sec. 300.344(a)(6) and (c); and (2) the agency must give the parents a copy of their child's IEP. Proposed Sec. 300.346 (Development, review, and revision of IEP) has been revised to clarify that, in developing each child's IEP, the IEP team also must consider ``as appropriate, the results of the child's performance on any general State or district-wide assessment programs. Proposed Sec. 300.347 (Content of IEP) has been amended to (1) clarify that ``general curriculum'' is the same curriculum as for nondisabled children, and (2) delete the requirement that, if the IEP team determines that services are not needed in one or more of the areas specified in the definition of transition services (Sec. 300.29), the IEP must include a statement to that effect and the basis upon which the determination was made. Proposed Sec. 300.350 (Children with disabilities in religiously-affiliated or other private schools) has been deleted. A new Sec. 300.455(c) has been added to specify LEA responsibilities regarding the development of ``services plans'' for private school children. Proposed Sec. 300.351 (IEP--accountability) has been redesignated as Sec. 300.350, and revised to provide that (1) each public agency must make a good faith effort to assist the child to achieve the goals and objectives or benchmarks listed in the IEP; (2) a State or public agency is not prohibited from establishing its own accountability systems regarding teacher, school, or agency performance; and (3) ``[n]othing in this section limits a parent's right to ask for revisions of the child's IEP or to invoke due process procedures if the parent feels that efforts required in paragraph (a) of this section are not being met.'' Direct Services by SEA Proposed Sec. 300.360 (Use of LEA allocation for direct services) has been amended to clarify that (1) if an LEA does not elect to apply for its Part B funds, the SEA must use those funds to ensure that FAPE is available to all eligible children residing in the jurisdiction of the LEA; (2) if the local allotment is not sufficient to ensure FAPE to all eligible children within the LEA, the SEA must ensure that FAPE is available to those children; and (3) the SEA may use whatever funding sources are available in the State to ensure that all eligible children within each LEA receive FAPE (see Sec. 300.301). Proposed Sec. 300.370 (Use of SEA allocations) has been amended to clarify that, of the Part B funds it retains for other than administration, the SEA may use the funds either directly, or distribute them to LEAs on a competitive, targeted, or formula basis. 5. Changes in Subpart D--Children in Private Schools Children With Disabilities in Private Schools Placed or Referred by Public Agencies Proposed Sec. 300.401 (``Responsibility of SEA'') has been revised to provide that a child with a disability placed by a public agency as the means of providing FAPE to the child must receive an education that meets the standards that apply to the SEA and LEA. Children With Disabilities Enrolled by Their Parents in Private Schools When FAPE Is at Issue Proposed Sec. 300.403 (``Placement of children by parent if FAPE is at issue'') has been revised to clarify that (1) the provisions of Secs. 300.450-300.462 apply to children with disabilities placed voluntarily in private schools, even though the public agency made FAPE available to those children; (2) private school placement by the parents must be appropriate (as determined by a court or hearing officer) in order to be eligible for reimbursement, (3) a parental placement does not need to meet State standards that apply to education provided by the SEA and LEAs in order to be appropriate; and (4) the reimbursement provisions of Sec. 300.403 also apply if parents of a child with a disability who previously received special education and related services under the authority of a public agency enroll the child in a private preschool program. Children With Disabilities Enrolled by Their Parents in Private Schools Proposed Sec. 300.451 (``Child find for private school children with disabilities'') has been revised to specify that (1) child find activities for those children must be comparable to child find activities for children with disabilities in public schools, and (2) LEAs must consult with representatives of parentally-placed private school students with disabilities on how to conduct child find activities for that population in a manner that is comparable to those activities for public school children. Proposed Sec. 300.452 (retitled ``Provision of services-- basic requirement'') has been amended to add a new provision related to the SEA's responsibility for ensuring that a services plan is developed for each private school child with a disability who has been designated to receive services under these regulations. Proposed Sec. 300.453 (``Expenditures'') has been revised to specify that (1) each LEA must consult with representatives of private school children with disabilities to decide how to conduct the annual count of the number of those children; (2) the LEA must ensure that the count is conducted by specified dates, and that the data are used to determine the amount of Part B funds to be earmarked for private school children in the next fiscal year; (3) the costs of child find activities for private school children with disabilities may not be considered in determining whether the LEA met the expenditures requirement of this section; and (4) SEAs and LEAs are not prohibited from providing services to private school children with disabilities beyond those required by this part, consistent with State law or local policy. Proposed Sec. 300.454 (Services determined) has been revised to specify that each LEA must (1) consult with private school representatives on where services will be provided; (2) conduct meetings to develop, review, and revise a ``services plan,'' in accordance with Sec. 300.455, for each private school child with a disability who has been designated to receive services under this part; and (3) ensure that a representative of the private school participates in the meetings. Proposed Sec. 300.455 (Services provided) has been revised to specify that (1) each private school child with a disability who has been designated to receive Part B services must have a services plan, and (2) the plan must, to the extent appropriate, meet the requirements of Sec. 300.347 with respect to the services provided, and be developed, reviewed and revised consistent with Secs. 300.342-300.346. Proposed Sec. 300.456 (Location of services) has been revised to make clear that, while transportation might be provided between a child's home or private school and a service site if necessary for the child to benefit from or participate in the services offered, LEAs are not required to provide transportation between the child's home and private school. Proposed Sec. 300.457 (Complaints) has been revised to specify that the due process procedures under this part apply to child find activities for private school children with disabilities, including evaluations. 6. Changes in Subpart E--Procedural Safeguards Due Process Procedures for Parents and Children Proposed Sec. 300.500 (General responsibility of public agencies; definitions) has been amended as follows: (1) The proposed definition of ``consent'' (300.500(b)(1)) has been revised to clarify that a revocation of consent does not have a retroactive effect if the action consented to has already occurred. (2) The proposed definition of ``evaluation'' (Sec. 300.500(b)(2)) has been revised by deleting the last sentence of the definition, to ensure that evaluations may include a review of a child's performance on a test or procedures used for all children in a school, grade, or class. Proposed Sec. 300.501 (Opportunity to examine records; parent participation in meetings) has been amended to (1) delete the word ``all'' from Sec. 300.501(a)(2); (2) delete the definition of ``meetings'' but provide that the term does not include certain conversations or preparation for a meeting and (3) clarify that each public agency must ``make reasonable efforts'' related to parental participation in group discussions relating to the educational placements of their child. Proposed Sec. 300.502 (Independent educational evaluation (IEE)) has been amended to (1) add that, upon request for an IEE, parents must be given information about agency criteria applicable for IEEs; (2) clarify, in Sec. 300.502(e)(1), that the criteria under which an IEE is obtained must be the same as that of the public agency ``to the extent such criteria are consistent with the parent's right to an IEE,'' and (3) explain that an explanation of parent disagreement with an agency evaluation may not be required and the public agency may not delay either providing the IEE at public expense or, alternatively, initiating a due process hearing. Proposed Sec. 300.503 (Prior notice by the public agency; content of notice) has been amended to delete the provision in Sec. 300.503(b)(8) (related to informing parents about the State complaint procedures). (See Sec. 300.504(b).) Proposed Sec. 300.504 (Procedural safeguards notice) has been amended to add State complaint procedures under Secs. 300.660- 300.662 to the items included in the notice. Proposed Sec. 300.505 (Parental consent) has been amended to (1) refer to ``informed parent consent;'' (2) add ``all reevaluations'' to the list of actions requiring consent (see Sec. 300.505(a)(1)(i)); (3) delete paragraph (a)(1)(iii), and add a new paragraph (a)(3) to specify that parental consent is not required before reviewing existing evaluation data as a part of an evaluation or reevaluation or for administering a test used with all children unless consent is required of all parents; and (4) specify, in paragraph (e), that a public agency may not use a parental refusal to consent to one service or benefit under paragraphs (a) and (d) to deny the parent or child another service or benefit. Proposed Sec. 300.506 (Mediation) has been revised to (1) add a new Sec. 300.506(b)(2) to specify that the mediator must be selected from a list of mediators on a random basis (e.g., a rotation), or that both parties are involved in selecting the mediator and agree with the selection of the individual who will mediate; and (2) add a new Sec. 300.506(c)(2) to clarify that payment for mediation services by the State does not make the mediator an employee of the State agency for purposes of impartiality. Proposed Sec. 300.507 (Impartial due process hearing; parent notice) has been amended to clarify that, in the content of the parent notice, the description of the nature of the problem applies to the action ``refused'' as well as that proposed by the public agency. Proposed Sec. 300.509 (Hearing rights) has been revised to clarify that, in paragraph (a)(3), the disclosure is required at least 5 ``business'' days before the hearing. Proposed Sec. 300.510 (Finality of decision; impartiality of review) has been amended to (1) make the reference to written findings and decision in Sec. 300.510(b)(2)(vi) consistent with Sec. 300.509(a)(5), and (2) allow the choice of ``electronic or written findings of fact and decision.'' Proposed Sec. 300.513 (Attorneys' fees) has been amended to include all of the provisions of section 615(i)(3)(C)-(G) of the Act. Proposed Sec. 300.514(c) has been amended to provide that a decision by a State hearing or review officer that is in agreement with the parents constitutes an agreement for purposes of pendency. Proposed Sec. 300.515 (Surrogate parents) has been revised to permit employees of nonpublic agencies that have no role in educating a child to serve as surrogate parents. Discipline Procedures A new Sec. 300.519 (Change of placement for disciplinary removals) has been added regarding change of placement in the context of removals under Secs. 300.520-300.529. Proposed Sec. 300.520 (Authority of school personnel) has been amended as follows: (1) Proposed Sec. 300.520(a)(1) has been revised to specify that to the extent removal would be applied to children without disabilities, school personnel may order the removal of a child with a disability from the child's current placement for not more than 10 consecutive school days and additional removals of not more than 10 consecutive school days in that same school year for separate incidents of misconduct as long as they do not constitute a change in placement under Sec. 300.519, and to make clear that after a child with a disability has been removed from his or her current placement for more than 10 school days in the same school year, during any subsequent days of removal the public agency must provide services to the extent necessary under Sec. 300.121(d). (2) Proposed Sec. 300.520(b) has been revised to replace ``suspension'' with ``removal,'' and to specify that when first removing a child for more than 10 school days in a school year, or commencing a removal that constitutes a change of placement, the LEA must within 10 business days, convene an IEP meeting. If the agency had not already conducted a functional behavioral assessment and implemented a behavioral intervention plan for the child the purpose of the IEP meeting is to develop an assessment plan. As soon as practicable after completion of the plan, the LEA must then convene an IEP meeting to develop appropriate behavioral interventions to address the child's behavior. If a child already has a behavioral intervention plan, the purpose of the IEP meeting is to review the plan and its implementation. (3) Proposed Sec. 300.520(c) has been deleted and replaced with a provision that requires that if a child with a disability who has a behavioral intervention plan and has been removed for more than 10 school days in a school year subsequently is subjected to a removal that is not a change of placement, the child's IEP team members shall review the behavioral intervention plan, and meet to modify it or its implementation if one or more team members think modifications are needed. Proposed Sec. 300.521(d) has been modified to make clear that the hearing officer determines the appropriateness of the interim alternative educational setting proposed by school personnel who have consulted with the child's special education teacher. Proposed Sec. 300.522 (Determination of setting) has been amended to (1) specify that the interim alternative educational setting referred to in Sec. 300.520(a)(2) must be determined by the IEP team; and (2) clarify that the services and modifications to address the child's behavior are designed to prevent the behavior from recurring. Proposed Sec. 300.523 (Manifestation determination review) has been amended as follows: (1) Proposed Sec. 300.523(a) has been revised to (1) specify that the manifestation determination review is done regarding behavior described in Secs. 300.520(a)(2) and 300.521, or if a removal is contemplated that constitutes a change of placement under Sec. 300.519; and (2) require that parents be provided notice of procedural safeguards consistent with Sec. 300.504. (2) Proposed Sec. 300.523(b) (exception to conducting a manifestation determination review) has been removed. (3) Proposed Sec. 300.523(c) has been redesignated as Sec. 300.523(b) and revised to specify that the manifestation determination review is conducted at a meeting. (4) Proposed Sec. 300.523(d) and (e) have been redesignated as Sec. 300.523(c) and (d) and revised by adding ``and other qualified personnel'' after ``IEP team'' each time it is used. (5) Proposed paragraph (f) has been redesignated as paragraph (e) and a new paragraph (f) has been added to clarify that if in the manifestation review deficiencies are identified in the child's IEP or placement or in their implementation, the public agency must act to correct those deficiencies. Proposed Sec. 300.524 (Determination that behavior was not a manifestation of disability) has been amended to (1) replace, in paragraph (a), the reference to ``section 612 of the Act'' with ``Sec. 300.121(c);'' and (2) refer, in paragraph (c), to the placement rules of Sec. 300.526. Proposed Sec. 300.525 (Parent appeal) has been revised to refer to any decision regarding placement under Secs. 300.520-300.528. Proposed Sec. 300.526(c)(3) has been revised to clarify that extensions of 45 day removals by a hearing officer because returning the child to the child's current placement would be dangerous, may be repeated, if necessary. Proposed Sec. 300.527 (Protections for children not yet eligible for special education and related services) has been amended as follows: (1) Proposed Sec. 300.527(b)(1) has been revised to refer to not knowing how to write rather than illiteracy in English. (2) Proposed Sec. 300.527(b)(2) has been revised to clarify that the behavior or performance is in relation to the categories of disability identified in Sec. 300.7. (3) Proposed Sec. 300.527(b)(4) has been revised to refer to other personnel who have responsibilities for child find or special education referrals in the agency. (4) Proposed Sec. 300.527(c) has been redesignated as paragraph (d), and a new paragraph (c) has been added to provide that if an agency acts on one of the bases identified in paragraph (b), determines that the child is not eligible, and provides proper notice to the parents, and there are no additional bases of knowledge under paragraph (b) that were not considered, the agency would not be held to have a basis of knowledge under Sec. 300.527(b). (5) Proposed Sec. 300.527(d)(2)(ii) has been revised to clarify that an educational placement under that provision can include suspension or expulsion without educational services. Proposed Sec. 300.528 (Expedited due process hearings) has been amended as follows: (1) Proposed Sec. 300.528(a)(1) (requiring a decision within 10 business days) has been deleted. (Paragraphs (a)(2) and (a)(3) are redesignated as (a)(1) and (a)(2) and paragraphs (b) and (c) are redesignated as (c) and (d).) (2) A new Sec. 300.528(b) has been added to require that (A) each State establish a timeline for expedited due process hearings that results in a written decision being mailed to the parties within 45 days, with no extensions permitted that result in decisions being issued more than 45 days after the hearing request is received by the public agency; and (B) decisions be issued in the same period of time, whether the hearing is requested by a parent or an agency. (3) Redesignated Sec. 300.528(d) has been revised to specify that expedited due process hearings are appealable consistent with the Sec. 300.510. Proposed Sec. 300.529 (Referral to and action by law enforcement and judicial authorities) has been amended to make clear that copies of a child's special education and disciplinary records may be transmitted only to the extent that such transmission is permitted under FERPA. (Section 300.571 has been amended to note the relationship of this section.) Procedures for Evaluation and Determination of Eligibility Proposed Sec. 300.532 (Evaluation procedures) has been amended to (1) require that assessments of children with limited English proficiency must be selected and administered to ensure that they measure the extent to which a child has a disability and needs special education, and do not, instead, measure the child's English language skills (Sec. 300.532(a)2); (2) provide that the information gathered include information related to enabling the child to be involved and progress in the general curriculum or appropriate activities if the child is a preschool child (Sec. 300.532(b)); (3) provide that if an assessment is not conducted under standard conditions, information about the extent to which the assessment varied from standard conditions, such as the qualifications of the person administering the test or the method of test administration, must be included in the evaluation report (Sec. 300.532(c)(2)); and (4) provide that each public agency ensure that the evaluation of each child with a disability under Secs. 300.531-300.536 is sufficiently comprehensive to identify all of the child's special education and related services needs, whether or not commonly linked to the disability category in which the child has been classified. Proposed Sec. 300.533 (Determination of needed evaluation data) has been revised to clarify that the group reviewing existing data may conduct that review without a meeting (Sec. 300.533(b)). Proposed Sec. 300.534 (Determination of eligibility) has been amended to clarify that (1) children are not eligible if they need specialized instruction because of limited English proficiency or lack of instruction in reading or math, but do not need such instruction because of a disability, as defined in Sec. 300.7; and (2) the evaluation required in Sec. 300.534(c)(1) is not required before termination of a child's eligibility under Part B of the Act due to graduation with a regular high school diploma, or ceasing to meet the age requirement for FAPE under State law. Proposed Sec. 300.535 (Procedures for determining eligibility and placement) has been revised to add ``parent input'' to the variety of sources from which the public agency will draw in interpreting evaluation data for the purpose of determining a child's eligibility under this part. Least Restrictive Environment (LRE) Proposed Sec. 300.550 (General LRE requirements) has been amended to add a cross reference to Sec. 300.311(b) and (c), to clarify that the LRE provisions do not apply to students with disabilities who are convicted as adults under State law and incarcerated in adult prisons. Proposed Sec. 300.552 (Placements) has been amended to (1) include a reference to preschool children with disabilities in the introductory paragraph of this section, and (2) to add a new Sec. 300.552(e) prohibiting the removal of child with a disability from an age-appropriate regular classroom solely because of needed modifications in the general curriculum. Confidentiality of Information Proposed Sec. 300.562 (Access rights) has been revised to make it clear that expedited due process hearing procedures under Secs. 300.521-300.529 are also covered under this section. Proposed Sec. 300.571 (Consent) has been amended to permit disclosures without parental consent to the agencies identified in Sec. 300.529, to the extent permitted under the Family Educational Rights and Privacy Act (FERPA). Proposed Sec. 300.574 (Children's rights) has been revised by incorporating into the regulations the substance of the two notes following the section (relating to transfer of educational records to the student at age 18). Department Procedures Proposed Sec. 300.589 (Waiver of requirement regarding supplementing and not supplanting with Part B funds) has been revised to conform to the statutory provision that the Secretary provides a waiver ``in whole or in part.'' 7. Changes in Subpart F--State Administration Proposed Sec. 300.652 (Advisory panel functions) has been revised to clarify that one of the duties of the advisory panel is advising the State agency that has general responsibility for students who have been convicted as adults and incarcerated in adult prisons. Proposed Sec. 300.653 (Advisory panel procedures) has been amended to specify that all advisory panel meetings and agenda items must be ``announced enough in advance of the meeting to afford interested parties a reasonable opportunity to attend.'' Proposed Sec. 300.660 (Adoption of State complaint procedures) has been revised to clarify that if an SEA, in resolving a complaint, finds a failure to provide appropriate services to a child with a disability, the SEA must address (1) how to remediate the denial of those services, including, as appropriate, the awarding of monetary reimbursement or other corrective action appropriate to the needs of the child; and (2) appropriate future provision of services for all children with disabilities. Proposed Sec. 300.661 (Minimum State complaint procedures) has been revised to clarify that (1) if an issue in a complaint is the subject of a due process hearing, that issue (but not any issue outside of the hearing) would be set aside until the conclusion of the hearing, (2) the decision on an issue in a due process hearing would be binding in a State complaint resolution, and (3) a public agency's failure to implement a due process decision would have to be resolved by the SEA. 8. Changes in Subpart G--Allocation of Funds; Reports Proposed Sec. 300.712 (Allocations to LEAs) has been revised to clarify that, if LEAs are created, combined, or otherwise reconfigured subsequent to the base year (i.e. the year prior to the year in which the appropriation under section 611(j) of the Act exceeds $4,924,672,200), the State is required to provide the LEAs involved with revised base allocations calculated on the basis of the relative numbers of children with disabilities aged 3 through 21, or 6 through 21, depending on whether the State serves all children with disabilities aged 3 through 5 currently provided special education by each of the affected LEAs. The section also has been expanded to state that, for the purpose of making grants under this section, States must apply, on a uniform basis across all LEAs, the best data that are available to them on the numbers of children enrolled in public and private elementary and secondary schools and the numbers of children living in poverty. Proposed Sec. 300.713 (Former Chapter 1 State agencies) has been revised to clarify that the amount each former Chapter 1 State agency must receive is the minimum amount. Proposed Sec. 300.751 (Annual report of children served) has been revised to clarify that the Secretary may permit States to collect certain data through sampling. 9. Changes to Part 303 Proposed Sec. 303.510 (Adopting State complaint procedures) has been revised to clarify that if a lead agency, in resolving a complaint, finds a failure to provide appropriate services, it must address (1) how to remediate the denial of those services, including, as appropriate, the awarding of monetary reimbursement or other corrective action appropriate to the needs of the child and the child's family, as well as (2) appropriate future provision of services for all infants and toddlers with disabilities and their families. Proposed Sec. 303.512 (Minimum State complaint procedures) has been revised to clarify that (1) if an issue in a complaint is the subject of a due process hearing, that issue (but not any issue outside of the hearing) would be set aside until the conclusion of the hearing, (2) the decision on an issue in a due process hearing would be binding in a State complaint resolution, and (3) a public agency's or private service provider's failure to implement a due process decision must be resolved by the lead agency. Role of the Regular Education Teacher on the IEP Team The regulations at Secs. 300.344(a)(2) and 300.346(d) repeat the statutory provisions regarding the role of the regular education teacher in developing, reviewing, and revising IEPs. The extent of the regular education teacher's involvement in the IEP process would be determined on a case by case basis and is addressed in question 24 in Appendix A. Discipline for Children With Disabilities Some Key Changes in the Regulations Regarding Discipline for Children With Disabilities One of the major areas of concern in public comment on the NPRM was the issue of discipline for children with disabilities under the Act. The previous list of major changes briefly describes the major changes from the NPRM that are reflected in these final regulations regarding discipline under Secs. 300.121(d), and 300.519-529. These changes reflect very serious consideration of the concerns of school administrators and teachers regarding preserving school safety and order without unduly burdensome requirements, while helping schools respond appropriately to a child's behavior, promoting the use of appropriate behavioral interventions, and increasing the likelihood of success in school and school completion for some of our most at-risk students. The comments also revealed some confusion about several of the provisions of the Act and the NPRM regarding discipline. Limitations in the statute and regulations about the amount of time that a child can be removed from his or her current placement only come into play when schools are not able to work out an appropriate placement with the parents of a child who has violated a school code of conduct. In many, many cases involving discipline for children with disabilities, schools and parents are able to reach an agreement about how to respond to the child's behavior. In addition, neither the statute or the proposed or final regulations impose absolute limits on the number of days that a child can be removed from his or her current placement in a school year. As was the case in the past, school personnel have the ability to remove a child for short periods of time as long as the removal does not constitute a change of placement. To help make this point, the regulations include a new provision (Sec. 300.519) that reflects the Department's longstanding definition of what constitutes a ``change of placement'' in the disciplinary context. In this regulation, a disciplinary ``change of placement'' occurs when a child is removed for more than 10 consecutive school days or when the child is subjected to a series of removals that constitute a pattern because they cumulate to more than 10 school days in a school year, and because of factors such as the length of the removal, the total amount of time the child is removed, and the proximity of the removals to one another. (Sec. 300.519). Changes also have been made to Sec. 300.520(a)(1) to make clear that multiple short-term removals (i.e., 10 consecutive days or less) for separate incidents of misconduct are permitted, to the extent removals would be applied to children without disabilities as long as those removals do not constitute a change of placement, as defined in Sec. 300.519. Instead of requiring that services begin on the eleventh day in a school year that a child is removed from his or her current educational placement, as was proposed in the NPRM, the regulations take a more flexible approach. If the removal is pursuant to school personnel's authority to remove for not more than 10 consecutive days (Sec. 300.520(a)(1)) or for behavior that is not a manifestation of the child's disability, consistent with Sec. 300.524 services must be provided to the extent necessary to enable the child to continue to appropriately progress in the general curriculum and appropriately advance toward the goals in his or her IEP. (Sec. 300.121(d)). If the removal is by school personnel under their authority to remove for not more than 10 school days at a time (Sec. 300.520(a)(1)), school personnel, in consultation with the child's special education teacher, make the determination regarding the extent to which services are necessary to meet this standard. (Sec. 300.121(d)(3)(i)). On the other hand, if the removal constitutes a change in placement, the child's IEP team must be involved. If the removal is pursuant to the authority to discipline a child with a disability to the same extent as a nondisabled child for behavior that has been determined to not be a manifestation of the child's disability (Sec. 300.524), the child's IEP team makes the determination regarding the extent to which services are necessary to meet this standard. (Sec. 300.121(d)(3)(ii)). If the child is being placed in an interim alternative educational setting for up to 45 days because of certain weapon or drug offenses (Sec. 300.520(a)(2)) or because a hearing officer has determined that there is a substantial likelihood of injury to the child or others if the child remains in his or her current placement (Sec. 300.521), the services to be provided to the child are determined based on Sec. 300.522. In these cases, the interim alternative educational setting must be selected so as to enable the child to continue to progress in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the child's current IEP, that will enable the child to meet the goals set out in that IEP and include services and modifications to address the behavior. (Secs. 300.121(d)(2)(ii) and 300.522). Under these regulations, IEP team meetings regarding functional behavioral assessments and behavioral intervention plans will only be required within 10 business days of (1) when the child is first removed for more than 10 school days in a school year, and (2) whenever the child is subjected to a disciplinary change of placement. (Sec. 300.520(b)(1)). In other subsequent removals in a school year of a child who already has a functional behavioral assessment and behavioral intervention plan, the IEP team members can review the behavioral intervention plan and its implementation in light of the child's behavior, without a meeting, and only meet if one or more of the team members believe that the plan or its implementation need modification. (Sec. 300.520(c)). These final regulations also provide that manifestation determinations, and the IEP team meetings to make these determinations, are only required when a child is subjected to a disciplinary change of placement. (Sec. 300.523(a)). These changes should eliminate the need for unnecessary, repetitive IEP team meetings. The discussion of comments regarding the disciplinary sections of the regulations in Attachment 1 provides a fuller explanation of the regulatory provisions regarding discipline. Answers to Some Commonly Asked Questions About Discipline Under IDEA Prior to the amendments to the Education of the Handicapped Act (EHA) in 1975, (the EHA is today known as IDEA), the special educational needs of children with disabilities were not being met. More than half of the children with disabilities in the United States did not receive appropriate educational services, and a million children with disabilities were excluded entirely from the public school system. All too often, school officials used disciplinary measures to exclude children with disabilities from education simply because they were different or more difficult to educate than nondisabled children. It is against that backdrop that Pub. L. 94-142 was developed, with one of its primary goals being the elimination of any exclusion of children with disabilities from education. In the IDEA reauthorization of 1997, Congress recognized that in certain instances school districts needed increased flexibility to deal with safety issues while maintaining needed due process protections in the IDEA. The following questions and answers address: (1) the proactive requirements of the IDEA designed to ensure that children with disabilities will be able to adhere to school rules; (2) IDEA provisions regarding removal of students from their current placement when their behavior significantly violates school discipline codes; and (3) the requirement of the IDEA for the continuation of services for children with disabilities who are disciplined. 1. Why are there special rules about discipline for children with disabilities? The protections in the IDEA regarding discipline are designed to prevent the type of often speculative and subjective decision making by school officials that led to widespread abuses of the rights of children with disabilities to an appropriate education in the past. For example, in Mills v. Board of Education of the District of Columbia (1972) the court recognized that many children were being excluded entirely from education merely because they had been identified as having a behavior disorder. It is important to keep in mind, however, that these protections do not prevent school officials from maintaining a learning environment that is safe and conducive to learning for all children. Well run schools that have good leadership, well-trained teachers and high standards for all students have fewer discipline problems than schools that do not. It is also extremely important to keep in mind that the provisions of the statute and regulation concerning the amount of time a child with a disability can be removed from his or her regular placement for disciplinary reasons are only called into play if the removal constitutes a change of placement and the parent objects to proposed action by school officials (or objects to a refusal by school officials to take an action) and requests a due process hearing. The discipline rules concerning the amount of time a child can be removed from his or her current placement essentially are exceptions to the generally applicable requirement that a child remains in his or her current placement during the pendency of due process, and subsequent judicial, proceedings. (See, section 615(j) of the Act and Sec. 300.514.) If school officials believe that a child's placement is inappropriate they can work with the child's parent through the IEP and placement processes to come up with an appropriate placement for the child that will meet the needs of the child and result in his or her improved learning and the learning of others and ensure a safe environment. In addition to the other measures discussed in the following questions, the discipline provisions of the IDEA allow responsible and appropriate changes in placement of children with disabilities when their parents do not object. 2. Does IDEA contain provisions that promote proactive up-front measures that will help prevent discipline problems? Yes. Research has shown that if teachers and other school personnel have the knowledge and expertise to provide appropriate behavioral interventions, future behavior problems can be greatly diminished if not totally avoided. Appropriate staff development activities and improved pre-service training programs at the university level with emphasis in the area of early identification of reading and behavior problems and appropriate interventions can help to ensure that regular and special education teachers and other school personnel have the needed knowledge and skills. Changes in the IDEA emphasize the need of State and local educational agencies to work to ensure that superintendents, principals, teachers and other school personnel are equipped with the knowledge and skills that will enable them to appropriately address behavior problems when they occur. In addition, the IDEA includes provisions that focus on individual children. If a child has behavior problems that interfere with his or her learning or the learning of others, the IEP team must consider whether strategies, including positive behavioral interventions, strategies, and supports are needed to address the behavior. If the IEP team determines that such services are needed, they must be added to the IEP and must be provided. The Department has supported a number of activities such as training institutes, conferences, clearinghouses and other technical assistance and research activities on this topic to help school personnel appropriately address behavioral concerns for children with disabilities. 3. Can a child with a disability who is experiencing significant disciplinary problems be removed to another placement? Yes. Even when school personnel are appropriately trained and are proactively addressing children's behavior issues through positive behavioral intervention supports, interventions, and strategies, there may be instances when a child must be removed from his or her current placement. When there is agreement between school personnel and the child's parents regarding a change in placement (as there frequently is), there will be no need to bring into play the discipline provisions of the law. Even if agreement is not possible, in general, school officials can remove any child with a disability from his or her regular school placement for up to 10 school days at a time, even over the parents' objections, whenever discipline is appropriate and is administered consistent with the treatment of nondisabled children. Sec. 300.520(a)(1). However, school officials cannot use this authority to repeatedly remove a child from his or her current placement if that series of removals means the child is removed for more than 10 school days in a school year and factors such as the length of each removal, the total amount of time that the child is removed, and the proximity of the removals to one another lead to the conclusion that there has been a change in placement. Secs. 300.519-300.520(a)(1). There is no specific limit on the number of days in a school year that a child with a disability can be removed from his or her current placement. After a child is removed from his or her current placement for more than 10 cumulative school days in a school year, services must be provided to the extent required under Sec. 300.121(d), which concerns the provision of FAPE for children suspended or expelled from school. If the child's parents do not agree to a change of placement, school authorities can unilaterally remove a child with a disability from the child's regular placement for up to 45 days at a time if the child has brought a weapon to school or to a school function, or knowingly possessed or used illegal drugs or sold or solicited the sale of controlled substances while at school or a school function. Sec. 300.520(a)(2). In addition, if school officials believe that a child with a disability is substantially likely to injure self or others in the child's regular placement, they can ask an impartial hearing officer to order that the child be removed to an interim alternative educational setting for a period of up to 45 days. Sec. 300.521. If at the end of an interim alternative educational placement of up to 45 days, school officials believe that it would be dangerous to return the child to the regular placement because the child would be substantially likely to injure self or others in that placement, they can ask an impartial hearing officer to order that the child remain in an interim alternative educational setting for an additional 45 days. Sec. 300.526(c). If necessary, school officials can also request subsequent extensions of these interim alternative educational settings for up to 45 days at a time if school officials continue to believe that the child would be substantially likely to injure self or others if returned to his or her regular placement. Sec. 300.526(c)(4). Additionally, at any time, school officials may seek to obtain a court order to remove a child with a disability from school or to change a child's current educational placement if they believe that maintaining the child in the current educational placement is substantially likely to result in injury to the child or others. Finally, school officials can report crimes committed by children with disabilities to appropriate law enforcement authorities to the same extent as they do for crimes committed by nondisabled students. Sec. 300.529. 4. Do the IDEA regulations mean that a child with a disability cannot be removed from his or her current placement for more than ten school days in a school year? No. School authorities may unilaterally suspend a child with a disability from the child's regular placement for not more than 10 school days at a time for any violation of school rules if nondisabled children would be subjected to removal for the same offense. They also may implement additional suspensions of up to ten school days at a time in that same school year for separate incidents of misconduct if educational services are provided for the remainder of the removals, to the extent required under Sec. 300.121(d). (See the next question regarding the provision of educational services during periods of removal.) However, school authorities may not remove a child in a series of short-term suspensions (up to 10 school days at a time), if these suspensions constitute a pattern that is a change of placement because the removals cumulate to more than 10 school days in a school year and because of factors such as the length of each removal, the total amount of time the child is removed, and the proximity of the removals to one another. But not all series of removals that cumulate to more than 10 school days in a school year would constitute a pattern under Sec. 300.519(b). Of course, in the case of less serious infractions, schools can address the misconduct through appropriate instructional and/or related services, including conflict management, behavior management strategies, and measures such as study carrels, time-outs, and restrictions in privileges, so long as they are not inconsistent with the child's IEP. If a child's IEP or behavior intervention plan addresses a particular behavior, it generally would be inappropriate to utilize some other response, such as suspension, to that behavior. 5. What must a school district do when removing a child with a disability from his or her current placement for the eleventh cumulative day in a school year? Beginning on the eleventh cumulative day in a school year that a child with a disability is removed from his or her current placement, the school district must provide those services that school personnel (for example, the school administrator or other appropriate school personnel) in consultation with the child's special education teacher determine to be necessary to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the child's IEP. School personnel would determine where those services would be provided. This means that for the remainder of the removal that includes the eleventh day, and for any subsequent removals, services must be provided to the extent determined necessary, while the removal continues. Sec. 300.121(d)(2) and (3). Not later than 10 business days after removing a child with a disability for more than 10 school days in a school year, the school district must convene an IEP team meeting to develop a behavioral assessment plan if the district has not already conducted a functional behavioral assessment and implemented a behavioral intervention plan for the child. If a child with a disability who is being removed for the eleventh cumulative school day in a school year already has a behavioral intervention plan, the school district must convene the IEP team (either before or not later than 10 business days after first removing the child for more than 10 school days in a school year) to review the plan and its implementation, and modify the plan and its implementation as necessary to address the behavior. Sec. 300.520(b). A manifestation determination would not be required unless the removal that includes the eleventh cumulative school day of removal in a school year is a change of placement. Sec. 300.523(a). 6. Does the IDEA or its regulations mean that a child with a disability can never be suspended for more than 10 school days at a time or expelled for behavior that is not a manifestation of his or her disability? No. If the IEP team concludes that the child's behavior was not a manifestation of the child's disability, the child can be disciplined in the same manner as nondisabled children, except that appropriate educational services must be provided. Sec. 300.524(a). This means that if nondisabled children are long-term suspended or expelled for a particular violation of school rules, the child with disabilities may also be long-term suspended or expelled. Educational services must be provided to the extent the child's IEP team determines necessary to enable the child to appropriately progress in the general curriculum and appropriately advance toward the goals set out in the child's IEP. Sec. 300.121(d)(2). 7. Does the statutory language ``carries a weapon to school or to a school function'' cover instances in which the child acquires a weapon at school? Yes. Although the statutory language ``carries a weapon to school or to a school function'' could be viewed as ambiguous on this point, in light of the clear intent of Congress in the Act to expand the authority of school personnel to immediately address school weapons offenses, the Department's opinion is that this language also covers instances in which the child is found to have a weapon that he or she obtained while at school. Goals 2000: Educate America Act The Goals 2000: Educate America Act (Goals 2000) focuses the Nation's education reform efforts on the eight National Education Goals and provides a framework for meeting them. Goals 2000 promotes new partnerships to strengthen schools and expands the Department's capacities for helping communities to exchange ideas and obtain information needed to achieve the goals. These final regulations address the following National Education Goals: All children in America will start school ready to learn. The high school graduation rate will increase to at least 90 percent. All students will leave grades 4, 8, and 12 having demonstrated competency in challenging subject matter, including English, mathematics, science, foreign languages, civics and government, economics, arts, history, and geography; and every school in America will ensure that all students learn to use their minds well, so they may be prepared for responsible citizenship, further learning, and productive employment in our Nation's modern economy. United States students will be first in the world in mathematics and science achievement. Every adult American will be literate and will possess the knowledge and skills necessary to compete in a global economy and exercise the rights and responsibilities of citizenship. Every school in the United States will be free of drugs, violence, and the unauthorized presence of firearms and alcohol and will offer a disciplined environment conducive to learning. The Nation's teaching force will have access to programs for the continued improvement of their professional skills and the opportunity to acquire the knowledge and skills needed to instruct and prepare all American students for the next century. Every school will promote partnerships that will increase parental involvement and participation in promoting the social, emotional, and academic growth of children. Executive Order 12866 This is a significant regulatory action under section 3(f)(1) of Executive Order 12866 and, therefore, these final regulations have been reviewed by the Office of Management and Budget in accordance with that order. Because it has been determined that these regulations are economically significant under the order, the Department has conducted an economic analysis, which is provided in Attachment 2. This regulation has also been determined to be a major rule under the Small Business Regulatory Enforcement Fairness Act of 1996. These final regulations implement changes made to the Individuals with Disabilities Education Act by the IDEA Amendments of 1997 and make other changes determined by the Secretary as necessary for administering this program effectively and efficiently. The IDEA Amendments of 1997 made a number of significant changes to the law. While retaining the basic rights and protections that have been in the law since 1975, the amendments strengthened the focus of the law on improving results for children with disabilities. The amendments accomplished this through changes that promote the early identification of, and provision of services to, children with disabilities, the development of individualized education programs that enhance the participation of children with disabilities in the general curriculum, the education of children with disabilities with nondisabled children, higher expectations for children with disabilities and accountability for their educational results, the involvement of parents in their children's education, and reducing unnecessary paperwork and other burdens to better direct resources to improved teaching and learning. All of these objectives are reflected in these final regulations, which largely reflect the changes to the statute made by IDEA Amendments of 1997. In assessing the potential costs and benefits--both quantitative and qualitative--of these final regulations, the Secretary has determined that the benefits of these final regulations justify the costs. The Secretary has also determined that this regulatory action does not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions. Paperwork Reduction Act of 1995 Sections 300.110, 300.121, 300.123-300.130, 300.133, 300.135- 300.137, 300.141-300.145, 300.155-300.156, 300.180, 300.192, 300.220- 300.221, 300.240, 300.280-300.281, 300.284, 300.341, 300.343, 300.345, 300.347, 300.380-300.382, 300.402, 300.482-300.483, 300.503-300.504, 300.506, 300.508, 300.510-300.511, 300.532, 300.535, 300.543, 300.561- 300.563, 300.565, 300.569, 300.571-300.572, 300.574-300.575, 300.589, 300.600, 300.653, 300.660-300.662, 300.750-300.751, 300.754, 303.403, 303.510-303.512, and 303.520 contain information collection requirements. As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the Department of Education has submitted a copy of these sections to the Office of Management and Budget (OMB) for its review. Collection of Information: Assistance for Education of All Children with Disabilities: Complaint Procedures, Secs. 300.600-300.662 and 303.510-303.512. Each SEA is required to adopt written procedures for resolving any complaint that meets the requirements in these proposed regulations. Annual reporting and recordkeeping burden for this collection of information is estimated to average 10 hours to issue a written decision to a complaint. There is an estimated average annual total of 1079 complaints submitted for processing. Thus, the total annual reporting and recordkeeping burden for this collection is estimated to be 10,790 hours. Collection of Information: Assistance for Education of All Children with Disabilities: State Eligibility, Secs. 300.110, 300.121, 300.123- 300.130, 300.133, 300.135-300.137, 300.141-300.145, 300.155-300.156, 300.280-300.281, 300.284, 300.380-300.382, 300.402, 300.482-300.483, 300.510-300.511, 300.589, 300.600, 300.653, 303.403, and 303.520. Each State must have on file with the Secretary policies and procedures to demonstrate to the satisfaction of the Secretary that the State meets the specified conditions for assistance under this part. In the past, States were required to submit State plans every three years with one- third of the entities submitting plans to the Secretary each year. With the new statute, States will no longer be required to submit State plans. Rather, the policies and procedures currently approved by, and on file with, the Secretary that are not inconsistent with the IDEA Amendments of 1997 will remain in effect unless amended. Annual reporting and recordkeeping burden for this collection of information is estimated to average 30 hours for each response for 58 respondents, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Thus, the total annual reporting and recordkeeping burden for this collection is estimated to be 1740 hours. Collection of Information: Assistance for Education of All Children with Disabilities: LEA Eligibility, Secs. 300.180, 300.192, 300.220- 300.221, 300.240, 300.341, 300.343, 300.345, 300.347, 500.503-300.504, 300.532, 300.535, 300.543, 300.561-300.563, 300.565, 300.569, 300.571- 300.572, and 300.574-300.575. Each local educational agency (LEA) and each State agency must have on file with the State educational agency (SEA) information to demonstrate that the agency meets the specified requirements for assistance under this part. In the past, each LEA was required to submit a periodic application to the SEA in order to establish its eligibility for assistance under this part. Under the new statutory changes, LEAs are no longer required to submit such applications. Rather, the policies and procedures currently approved by, and on file with, the SEA that are not inconsistent with the IDEA Amendments of 1997 will remain in effect unless amended. Annual reporting and recordkeeping burden for this collection of information is estimated to average 2 hours for each response for 15,376 respondents, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Thus, the total annual reporting and recordkeeping burden for this collection is estimated to be 30,752 hours. The Secretary invites comment on the estimated time it will take for LEAs to meet this reporting and recordkeeping requirement. Collection of Information: Assistance for Education of All Children with Disabilities: List of Hearing Officers and Mediators, Secs. 300.506 and 300.508. Each State must maintain a list of individuals who are qualified mediators and knowledgeable in laws and regulations relating to the provision of special education and related services. Each public agency must, also, keep a list of the persons who serve as hearing officers. Annual reporting and recordkeeping burden for this collection of information is estimated to average 25 hours for each response for 58 respondents, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Thus, the total annual reporting and recordkeeping burden for this collection is estimated to be 3050 hours. Collection of Information: Assistance for Education of All Children with Disabilities: Report of Children and Youth with Disabilities Receiving Special Education, Secs. 300.750-300.751, and 300.754. Each SEA must submit an annual report of children served. Annual reporting and recordkeeping burden for this collection of information is estimated to average 262 hours for each response for 58 respondents, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Thus, the total annual reporting and recordkeeping burden for this collection is estimated to be 15,196 hours. Organizations and individuals desiring to submit comments on the information collection requirements should direct them to the Office of Information and Regulatory Affairs, OMB, room 10235, New Executive Office Building, Washington, DC 20503; Attention: Desk Officer for U.S. Department of Education. The Department considers comments by the public on these proposed collections of information in-- Evaluating whether the proposed collections of information are necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; Evaluating the accuracy of the Department's estimate of the burden of the proposed collections of information, including the validity of the methodology and assumptions used; Enhancing the quality, usefulness, and clarity of the information to be collected; and Minimizing the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses. OMB is required to make a decision concerning the collections of information contained in these proposed regulations between 30 and 60 days after publication of this document in the Federal Register. Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication. This does not affect the deadline for the public to comment to the Department on the proposed regulations. Regulatory Flexibility Act Certification The Secretary certifies that these final regulations will not have a significant economic impact on a substantial number of small entities. The small entities that would be affected by these regulations are small local educational agencies receiving Federal funds under this program. These regulations would not have a significant economic impact on the small LEAs affected because these regulations impose minimal requirements beyond those that would otherwise be required by the statute. In addition, increased costs imposed by these regulations on LEAs are expected to be offset by savings to be realized by LEAs. Intergovernmental Review This program is subject to the requirements of Executive Order 12372 and the regulations in 34 CFR part 79. The objective of the Executive order is to foster an intergovernmental partnership and a strengthened federalism by relying on processes developed by State and local governments for coordination and review of proposed Federal financial assistance. In accordance with the order, this document is intended to provide early notification of the Department's specific plans and actions for this program. Assessment of Educational Impact In the NPRM published on October 22, 1997, the Secretary requested comments on whether the proposed regulations would require transmission of information that is being gathered by or is available from any other agency or authority of the United States. Based on the response to the NPRM and on its own review, the Department has determined that the regulations in this document do not require transmission of information that is being gathered by or is available from any other agency or authority of the United States. Electronic Access to This Document Anyone may also view this document, as well as all other Department of Education documents published in the Federal Register, in text or portable document format (pdf) on the World Wide Web at either of the following sites: http://gcs.ed.gov/fedreg.htm http://www.ed.gov/news.html To use the pdf you must have the Adobe Acrobat Reader Program with Search, which is available free at either of the previous sites. If you have questions about using the pdf, call the U.S. Government Printing Office toll free at 1-888-293-6498. Anyone may also view these documents in text copy only on an electronic bulletin board of the Department. Telephone: (202) 219-1511 or, toll free, 1-800-222-4922. The documents are located under Option G--Files/Announcements, Bulletins and Press Releases. Note: The official version of this document is the document published in the Federal Register. List of Subjects 34 CFR Part 300 Administrative practice and procedure, Education of individuals with disabilities, Elementary and secondary education, Equal educational opportunity, Grant programs-- education, Privacy, Private schools, Reporting and recordkeeping requirements. 34 CFR Part 303 Education of individuals with disabilities, Grant programs-- education, Infants and children, Reporting and recordkeeping requirements. Dated: March 4, 1999. Richard W. Riley, Secretary of Education. (Catalog of Federal Domestic Assistance Number: 84.027 Assistance to States for the Education of Children with Disabilities, and 84.181 Early Intervention Program for Infants and Toddlers with Disabilities) The Secretary amends Title 34 of the Code of Federal Regulations by revising part 300 and amending part 303 as follows: 1. Part 300 is revised to read as follows: PART 300--ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH DISABILITIES Subpart A--General Purposes, Applicability, and Regulations That Apply to This Program Sec. 300.1 Purposes. 300.2 Applicability of this part to State, local, and private agencies. Definitions Used in This Part 300.3 Regulations that apply. 300.4 Act. 300.5 Assistive technology device. 300.6 Assistive technology service. 300.7 Child with a disability. 300.8 Consent. 300.9 Day; business day; school day. 300.10 Educational service agency. 300.11 Equipment. 300.12 Evaluation. 300.13 Free appropriate public education. 300.14 Include. 300.15 Individualized education program. 300.16 Individualized education program team. 300.17 Individualized family service plan. 300.18 Local educational agency. 300.19 Native language. 300.20 Parent. 300.21 Personally identifiable. 300.22 Public agency. 300.23 Qualified personnel. 300.24 Related services. 300.25 Secondary school. 300.26 Special education. 300.27 State. 300.28 Supplementary aids and services. 300.29 Transition services. 300.30 Definitions in EDGAR. Subpart B--State and Local Eligibility State Eligibility--General 300.110 Condition of assistance. 300.111 Exception for prior State policies and procedures on file with the Secretary. 300.112 Amendments to State policies and procedures. 300.113 Approval by the Secretary. 300.114--300.120 [Reserved] State Eligibility--Specific Conditions 300.121 Free appropriate public education (FAPE). 300.122 Exception to FAPE for certain ages. 300.123 Full educational opportunity goal (FEOG). 300.124 FEOG--timetable. 300.125 Child find. 300.126 Procedures for evaluation and determination of eligibility. 300.127 Confidentiality of personally identifiable information. 300.128 Individualized education programs. 300.129 Procedural safeguards. 300.130 Least restrictive environment. 300.131 [Reserved] 300.132 Transition of children from Part C to preschool programs. 300.133 Children in private schools. 300.134 [Reserved] 300.135 Comprehensive system of personnel development. 300.136 Personnel standards. 300.137 Performance goals and indicators. 300.138 Participation in assessments. 300.139 Reports relating to assessments. 300.140 [Reserved] 300.141 SEA responsibility for general supervision. 300.142 Methods of ensuring services. 300.143 SEA implementation of procedural safeguards. 300.144 Hearings relating to LEA eligibility. 300.145 Recovery of funds for misclassified children. 300.146 Suspension and expulsion rates. 300.147 Additional information if SEA provides direct services. 300.148 Public participation. 300.149 [Reserved] 300.150 State advisory panel. 300.151 [Reserved] 300.152 Prohibition against commingling. 300.153 State-level nonsupplanting. 300.154 Maintenance of State financial support. 300.155 Policies and procedures for use of Part B funds. 300.156 Annual description of use of Part B funds. LEA and State Agency Eligibility--General 300.180 Condition of assistance. 300.181 Exception for prior LEA or State agency policies and procedures on file with the SEA. 300.182 Amendments to LEA policies and procedures. 300.183 [Reserved] 300.184 Excess cost requirement. 300.185 Meeting the excess cost requirement. 300.186--300.189 [Reserved] 300.190 Joint establishment of eligibility. 300.191 [Reserved] 300.192 Requirements for establishing eligibility. 300.193 [Reserved] 300.194 State agency eligibility. 300.195 [Reserved] 300.196 Notification of LEA or State agency in case of ineligibility. 300.197 LEA and State agency compliance. LEA and State Agency Eligibility--Specific Conditions 300.220 Consistency with State policies. 300.221 Implementation of CSPD. 300.222--300.229 [Reserved] 300.230 Use of amounts. 300.231 Maintenance of effort. 300.232 Exception to maintenance of effort. 300.233 Treatment of federal funds in certain fiscal years. 300.234 Schoolwide programs under title I of the ESEA. 300.235 Permissive use of funds. 300.236--300.239 [Reserved] 300.240 Information for SEA. 300.241 Treatment of charter schools and their students. 300.242 Public information. 300.243 [Reserved] 300.244 Coordinated services system. School-Based Improvement Plan 300.245 School-based improvement plan. 300.246 Plan requirements. 300.247 Responsibilities of the LEA. 300.248 Limitation. 300.249 Additional requirements. 300.250 Extension of plan. Secretary of the Interior--Eligibility 300.260 Submission of information. 300.261 Public participation. 300.262 Use of Part B funds. 300.263 Plan for coordination of services. 300.264 Definitions. 300.265 Establishment of advisory board. 300.266 Annual report by advisory board. 300.267 Applicable regulations. Public Participation 300.280 Public hearings before adopting State policies and procedures. 300.281 Notice. 300.282 Opportunity to participate; comment period. 300.283 Review of public comments before adopting policies and procedures. 300.284 Publication and availability of approved policies and procedures. Subpart C--Services Free Appropriate Public Education 300.300 Provision of FAPE. 300.301 FAPE--methods and payments. 300.302 Residential placement. 300.303 Proper functioning of hearing aids. 300.304 Full educational opportunity goal. 300.305 Program options. 300.306 Nonacademic services. 300.307 Physical education. 300.308 Assistive technology. 300.309 Extended school year services. 300.310 [Reserved] 300.311 FAPE requirements for students with disabilities in adult prisons. 300.312 Children with disabilities in public charter schools. 300.313 Children experiencing developmental delays. Evaluations and Reevaluations 300.320 Initial evaluations. 300.321 Reevaluations. 300.322--300.324 [Reserved] Individualized Education Programs 300.340 Definitions related to IEPs. 300.341 Responsibility of SEA and other public agencies for IEPs. 300.342 When IEPs must be in effect. 300.343 IEP Meetings. 300.344 IEP team. 300.345 Parent participation. 300.346 Development, review, and revision of IEP. 300.347 Content of IEP. 300.348 Agency responsibilities for transition services. 300.349 Private school placements by public agencies. 300.350 IEPs--accountability. Direct Services by the Sea 300.360 Use of LEA allocation for direct services. 300.361 Nature and location of services. 300.362--300.369 [Reserved] 300.370 Use of SEA allocations. 300.371 [Reserved] 300.372 Nonapplicability of requirements that prohibit commingling and supplanting of funds. Comprehensive System of Personnel Development (CSPD) 300.380 General CSPD requirements. 300.381 Adequate supply of qualified personnel. 300.382 Improvement strategies. 300.383--300.387 [Reserved] Subpart D--Children in Private Schools Children With Disabilities in Private Schools Placed or Referred by Public Agencies 300.400 Applicability of Secs. 300.400-300.402. 300.401 Responsibility of State educational agency. 300.402 Implementation by State educational agency. Children With Disabilities Enrolled by Their Parents in Private Schools When FAPE is at Issue 300.403 Placement of children by parents if FAPE is at issue. Children With Disabilities Enrolled by Their Parents in Private Schools 300.450 Definition of ``private school children with disabilities.'' 300.451 Child find for private school children with disabilities. 300.452 Provision of services--basic requirement. 300.453 Expenditures. 300.454 Services determined. 300.455 Services provided. 300.456 Location of services; transportation. 300.457 Complaints. 300.458 Separate classes prohibited. 300.459 Requirement that funds not benefit a private school. 300.460 Use of public school personnel. 300.461 Use of private school personnel. 300.462 Requirements concerning property, equipment, and supplies for the benefit of private school children with disabilities. Procedures for By-Pass 300.480 By-pass--general. 300.481 Provisions for services under a by-pass. 300.482 Notice of intent to implement a by-pass. 300.483 Request to show cause. 300.484 Show cause hearing. 300.485 Decision. 300.486 Filing requirements. 300.487 Judicial review. Subpart E--Procedural Safeguards Due Process Procedures for Parents and Children 300.500 General responsibility of public agencies; definitions. 300.501 Opportunity to examine records; parent participation in meetings. 300.502 Independent educational evaluation. 300.503 Prior notice by the public agency; content of notice. 300.504 Procedural safeguards notice. 300.505 Parental consent. 300.506 Mediation. 300.507 Impartial due process hearing; parent notice. 300.508 Impartial hearing officer. 300.509 Hearing rights. 300.510 Finality of decision; appeal; impartial review. 300.511 Timelines and convenience of hearings and reviews. 300.512 Civil action. 300.513 Attorneys' fees. 300.514 Child's status during proceedings. 300.515 Surrogate parents. 300.516 [Reserved] 300.517 Transfer of parental rights at age of majority. Discipline Procedures 300.519 Change of placement for disciplinary removals. 300.520 Authority of school personnel. 300.521 Authority of hearing officer. 300.522 Determination of setting. 300.523 Manifestation determination review. 300.524 Determination that behavior was not manifestation of disability. 300.525 Parent appeal. 300.526 Placement during appeals. 300.527 Protections for children not yet eligible for special education and related services. 300.528 Expedited due process hearings. 300.529 Referral to and action by law enforcement and judicial authorities. Procedures for Evaluation and Determination of Eligibility 300.530 General. 300.531 Initial evaluation. 300.532 Evaluation procedures. 300.533 Determination of needed evaluation data. 300.534 Determination of eligibility. 300.535 Procedures for determining eligibility and placement. 300.536 Reevaluation. Additional Procedures for Evaluating Children With Specific Learning Disabilities 300.540 Additional team members. 300.541 Criteria for determining the existence of a specific learning disability. 300.542 Observation. 300.543 Written report. Least Restrictive Environment (LRE) 300.550 General LRE requirements. 300.551 Continuum of alternative placements. 300.552 Placements. 300.553 Nonacademic settings. 300.554 Children in public or private institutions. 300.555 Technical assistance and training activities. 300.556 Monitoring activities. Confidentiality of Information 300.560 Definitions. 300.561 Notice to parents. 300.562 Access rights. 300.563 Record of access. 300.564 Records on more than one child. 300.565 List of types and locations of information. 300.566 Fees. 300.567 Amendment of records at parent's request. 300.568 Opportunity for a hearing. 300.569 Result of hearing. 300.570 Hearing procedures. 300.571 Consent. 300.572 Safeguards. 300.573 Destruction of information. 300.574 Children's rights. 300.575 Enforcement. 300.576 Disciplinary information. 300.577 Department use of personally identifiable information. Department Procedures 300.580 Determination by the Secretary that a State is eligible. 300.581 Notice and hearing before determining that a State is not eligible. 300.582 Hearing official or panel. 300.583 Hearing procedures. 300.584 Initial decision; final decision. 300.585 Filing requirements. 300.586 Judicial review. 300.587 Enforcement. 300.588 [Reserved] 300.589 Waiver of requirement regarding supplementing and not supplanting with Part B funds. Subpart F--State Administration General 300.600 Responsibility for all educational programs. 300.601 Relation of Part B to other Federal programs. 300.602 State-level activities. Use of Funds 300.620 Use of funds for State administration. 300.621 Allowable costs. 300.622 Subgrants to LEAs for capacity-building and improvement. 300.623 Amount required for subgrants to LEAs. 300.624 State discretion in awarding subgrants. State Advisory Panel 300.650 Establishment of advisory panels. 300.651 Membership. 300.652 Advisory panel functions. 300.653 Advisory panel procedures. State Complaint Procedures 300.660 Adoption of State complaint procedures. 300.661 Minimum State complaint procedures. 300.662 Filing a complaint. Subpart G--Allocation of Funds; Reports Allocations 300.700 Special definition of the term ``State.'' 300.701 Grants to States. 300.702 Definition. 300.703 Allocations to States. 300.704-300.705 [Reserved] 300.706 Permanent formula. 300.707 Increase in funds. 300.708 Limitation. 300.709 Decrease in funds. 300.710 Allocation for State in which by-pass is implemented for private school children with disabilities. 300.711 Subgrants to LEAs. 300.712 Allocations to LEAs. 300.713 Former Chapter 1 State agencies. 300.714 Reallocation of LEA funds. 300.715 Payments to the Secretary of the Interior for the education of Indian children. 300.716 Payments for education and services for Indian children with disabilities aged 3 through 5. 300.717 Outlying areas and freely associated States. 300.718 Outlying area--definition. 300.719 Limitation for freely associated States. 300.720 Special rule. 300.721 [Reserved] 300.722 Definition. Reports 300.750 Annual report of children served--report requirement. 300.751 Annual report of children served--information required in the report. 300.752 Annual report of children served--certification. 300.753 Annual report of children served--criteria for counting children. 300.754 Annual report of children served--other responsibilities of the SEA. 300.755 Disproportionality. 300.756 Acquisition of equipment; construction or alteration of facilities. Appendix A to Part 300--Notice of Interpretation Appendix B to Part 300--Index for IDEA--Part B Regulations Authority: 20 U.S.C. 1411-1420, unless otherwise noted. Subpart A--General Purposes, Applicability, and Regulations That Apply to This Program Sec. 300.1 Purposes. The purposes of this part are-- (a) To ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living; (b) To ensure that the rights of children with disabilities and their parents are protected; (c) To assist States, localities, educational service agencies, and Federal agencies to provide for the education of all children with disabilities; and (d) To assess and ensure the effectiveness of efforts to educate children with disabilities. (Authority: 20 U.S.C. 1400 note) Sec. 300.2 Applicability of this part to State, local, and private agencies. (a) States. This part applies to each State that receives payments under Part B of the Act. (b) Public agencies within the State. The provisions of this part-- (1) Apply to all political subdivisions of the State that are involved in the education of children with disabilities, including-- (i) The State educational agency (SEA); (ii) Local educational agencies (LEAs), educational service agencies (ESAs), and public charter schools that are not otherwise included as LEAs or ESAs and are not a school of an LEA or ESA; (iii) Other State agencies and schools (such as Departments of Mental Health and Welfare and State schools for children with deafness or children with blindness); and (iv) State and local juvenile and adult correctional facilities; and (2) Are binding on each public agency in the State that provides special education and related services to children with disabilities, regardless of whether that agency is receiving funds under Part B. (c) Private schools and facilities. Each public agency in the State is responsible for ensuring that the rights and protections under Part B of the Act are given to children with disabilities-- (1) Referred to or placed in private schools and facilities by that public agency; or (2) Placed in private schools by their parents under the provisions of Sec. 300.403(c). (Authority: 20 U.S.C. 1412) Sec. 300.3 Regulations that apply. The following regulations apply to this program: (a) 34 CFR part 76 (State-Administered Programs) except for Secs. 76.125-76.137 and 76.650-76.662. (b) 34 CFR part 77 (Definitions). (c) 34 CFR part 79 (Intergovernmental Review of Department of Education Programs and Activities). (d) 34 CFR part 80 (Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments). (e) 34 CFR part 81 (General Education Provisions Act--Enforcement). (f) 34 CFR part 82 (New Restrictions on Lobbying). (g) 34 CFR part 85 (Government-wide Debarment and Suspension (Nonprocurement) and Government-wide Requirements for Drug-Free Workplace (Grants)). (h) The regulations in this part--34 CFR part 300 (Assistance for Education of Children with Disabilities). (Authority: 20 U.S.C. 1221e-3(a)(1)) Definitions Used in This Part Sec. 300.4 Act. As used in this part, Act means the Individuals with Disabilities Education Act (IDEA), as amended. (Authority: 20 U.S.C. 1400(a)) Sec. 300.5 Assistive technology device. As used in this part, Assistive technology device means any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of a child with a disability. (Authority: 20 U.S.C. 1401(1)) Sec. 300.6 Assistive technology service. As used in this part, Assistive technology service means any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device. The term includes-- (a) The evaluation of the needs of a child with a disability, including a functional evaluation of the child in the child's customary environment; (b) Purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by children with disabilities; (c) Selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices; (d) Coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs; (e) Training or technical assistance for a child with a disability or, if appropriate, that child's family; and (f) Training or technical assistance for professionals (including individuals providing education or rehabilitation services), employers, or other individuals who provide services to, employ, or are otherwise substantially involved in the major life functions of that child. (Authority: 20 U.S.C. 1401(2)) Sec. 300.7 Child with a disability. (a) General. (1) As used in this part, the term child with a disability means a child evaluated in accordance with Secs. 300.530- 300.536 as having mental retardation, a hearing impairment including deafness, a speech or language impairment, a visual impairment including blindness, serious emotional disturbance (hereafter referred to as emotional disturbance), an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities, and who, by reason thereof, needs special education and related services. (2)(i) Subject to paragraph (a)(2)(ii) of this section, if it is determined, through an appropriate evaluation under Secs. 300.530- 300.536, that a child has one of the disabilities identified in paragraph (a)(1) of this section, but only needs a related service and not special education, the child is not a child with a disability under this part. (ii) If, consistent with Sec. 300.26(a)(2), the related service required by the child is considered special education rather than a related service under State standards, the child would be determined to be a child with a disability under paragraph (a)(1) of this section. (b) Children aged 3 through 9 experiencing developmental delays. The term child with a disability for children aged 3 through 9 may, at the discretion of the State and LEA and in accordance with Sec. 300.313, include a child-- (1) Who is experiencing developmental delays, as defined by the State and as measured by appropriate diagnostic instruments and procedures, in one or more of the following areas: physical development, cognitive development, communication development, social or emotional development, or adaptive development; and (2) Who, by reason thereof, needs special education and related services. (c) Definitions of disability terms. The terms used in this definition are defined as follows: (1)(i) Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a child's educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a child's educational performance is adversely affected primarily because the child has an emotional disturbance, as defined in paragraph (b)(4) of this section. (ii) A child who manifests the characteristics of ``autism'' after age 3 could be diagnosed as having ``autism'' if the criteria in paragraph (c)(1)(i) of this section are satisfied. (2) Deaf-blindness means concomitant hearing and visual impairments, the combination of which causes such severe communication and other developmental and educational needs that they cannot be accommodated in special education programs solely for children with deafness or children with blindness. (3) Deafness means a hearing impairment that is so severe that the child is impaired in processing linguistic information through hearing, with or without amplification, that adversely affects a child's educational performance. (4) Emotional disturbance is defined as follows: (i) The term means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child's educational performance: (A) An inability to learn that cannot be explained by intellectual, sensory, or health factors. (B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers. (C) Inappropriate types of behavior or feelings under normal circumstances. (D) A general pervasive mood of unhappiness or depression. (E) A tendency to develop physical symptoms or fears associated with personal or school problems. (ii) The term includes schizophrenia. The term does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance. (5) Hearing impairment means an impairment in hearing, whether permanent or fluctuating, that adversely affects a child's educational performance but that is not included under the definition of deafness in this section. (6) Mental retardation means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a child's educational performance. (7) Multiple disabilities means concomitant impairments (such as mental retardation-blindness, mental retardation-orthopedic impairment, etc.), the combination of which causes such severe educational needs that they cannot be accommodated in special education programs solely for one of the impairments. The term does not include deaf-blindness. (8) Orthopedic impairment means a severe orthopedic impairment that adversely affects a child's educational performance. The term includes impairments caused by congenital anomaly (e.g., clubfoot, absence of some member, etc.), impairments caused by disease (e.g., poliomyelitis, bone tuberculosis, etc.), and impairments from other causes (e.g., cerebral palsy, amputations, and fractures or burns that cause contractures). (9) Other health impairment means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that-- (i) Is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, and sickle cell anemia; and (ii) Adversely affects a child's educational performance. (10) Specific learning disability is defined as follows: (i) General. The term means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. (ii) Disorders not included. The term does not include learning problems that are primarily the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage. (11) Speech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment, or a voice impairment, that adversely affects a child's educational performance. (12) Traumatic brain injury means an acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability or psychosocial impairment, or both, that adversely affects a child's educational performance. The term applies to open or closed head injuries resulting in impairments in one or more areas, such as cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem-solving; sensory, perceptual, and motor abilities; psychosocial behavior; physical functions; information processing; and speech. The term does not apply to brain injuries that are congenital or degenerative, or to brain injuries induced by birth trauma. (13) Visual impairment including blindness means an impairment in vision that, even with correction, adversely affects a child's educational performance. The term includes both partial sight and blindness. (Authority: 20 U.S.C. 1401(3)(A) and (B); 1401(26)) Sec. 300.8 Consent. As used in this part, the term consent has the meaning given that term in Sec. 300.500(b)(1). (Authority: 20 U.S.C. 1415(a)) Sec. 300.9 Day; business day; school day. As used in this part, the term-- (a) Day means calendar day unless otherwise indicated as business day or school day; (b) Business day means Monday through Friday, except for Federal and State holidays (unless holidays are specifically included in the designation of business day, as in Sec. 300.403(d)(1)(ii)); and (c)(1) School day means any day, including a partial day, that children are in attendance at school for instructional purposes. (2) The term school day has the same meaning for all children in school, including children with and without disabilities. (Authority: 20 U.S.C. 1221e-3) Sec. 300.10 Educational service agency. As used in this part, the term educational service agency-- (a) Means a regional public multiservice agency-- (1) Authorized by State law to develop, manage, and provide services or programs to LEAs; and (2) Recognized as an administrative agency for purposes of the provision of special education and related services provided within public elementary and secondary schools of the State; (b) Includes any other public institution or agency having administrative control and direction over a public elementary or secondary school; and (c) Includes entities that meet the definition of intermediate educational unit in section 602(23) of IDEA as in effect prior to June 4, 1997. (Authority: 20 U.S.C. 1401(4)) Sec. 300.11 Equipment. As used in this part, the term equipment means-- (a) Machinery, utilities, and built-in equipment and any necessary enclosures or structures to house the machinery, utilities, or equipment; and (b) All other items necessary for the functioning of a particular facility as a facility for the provision of educational services, including items such as instructional equipment and necessary furniture; printed, published and audio-visual instructional materials; telecommunications, sensory, and other technological aids and devices; and books, periodicals, documents, and other related materials. (Authority: 20 U.S.C. 1401(6)) Sec. 300.12 Evaluation. As used in this part, the term evaluation has the meaning given that term in Sec. 300.500(b)(2). (Authority: 20 U.S.C. 1415(a)) Sec. 300.13 Free appropriate public education. As used in this part, the term free appropriate public education or FAPE means special education and related services that-- (a) Are provided at public expense, under public supervision and direction, and without charge; (b) Meet the standards of the SEA, including the requirements of this part; (c) Include preschool, elementary school, or secondary school education in the State; and (d) Are provided in conformity with an individualized education program (IEP) that meets the requirements of Secs. 300.340-300.350. (Authority: 20 U.S.C. 1401(8)) Sec. 300.14 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. 1221e-3) Sec. 300.15 Individualized education program. As used in this part, the term individualized education program or IEP has the meaning given the term in Sec. 300.340(a). (Authority: 20 U.S.C. 1401(11)) Sec. 300.16 Individualized education program team. As used in this part, the term individualized education program team or IEP team means a group of individuals described in Sec. 300.344 that is responsible for developing, reviewing, or revising an IEP for a child with a disability. (Authority: 20 U.S.C. 1221e-3) Sec. 300.17 Individualized family service plan. As used in this part, the term individualized family service plan or IFSP has the meaning given the term in 34 CFR 303.340(b). (Authority: 20 U.S.C. 1401(12)) Sec. 300.18 Local educational agency. (a) As used in this part, the term local educational agency means a public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary or secondary schools in a city, county, township, school district, or other political subdivision of a State, or for a combination of school districts or counties as are recognized in a State as an administrative agency for its public elementary or secondary schools. (b) The term includes-- (1) An educational service agency, as defined in Sec. 300.10; (2) Any other public institution or agency having administrative control and direction of a public elementary or secondary school, including a public charter school that is established as an LEA under State law; and (3) An elementary or secondary school funded by the Bureau of Indian Affairs, and not subject to the jurisdiction of any SEA other than the Bureau of Indian Affairs, but only to the extent that the inclusion makes the school eligible for programs for which specific eligibility is not provided to the school in another provision of law and the school does not have a student population that is smaller than the student population of the LEA receiving assistance under this Act with the smallest student population. (Authority: 20 U.S.C. 1401(15)) Sec. 300.19 Native language. (a) As used in this part, the term native language, if used with reference to an individual of limited English proficiency, means the following: (1) The language normally used by that individual, or, in the case of a child, the language normally used by the parents of the child, except as provided in paragraph (a)(2) of this section. (2) In all direct contact with a child (including evaluation of the child), the language normally used by the child in the home or learning environment. (b) For an individual with deafness or blindness, or for an individual with no written language, the mode of communication is that normally used by the individual (such as sign language, braille, or oral communication). (Authority: 20 U.S.C. 1401(16)) Sec. 300.20 Parent. (a) General. As used in this part, the term parent means-- (1) A natural or adoptive parent of a child; (2) A guardian but not the State if the child is a ward of the State; (3) A person acting in the place of a parent (such as a grandparent or stepparent with whom the child lives, or a person who is legally responsible for the child's welfare); or (4) A surrogate parent who has been appointed in accordance with Sec. 300.515. (b) Foster parent. Unless State law prohibits a foster parent from acting as a parent, a State may allow a foster parent to act as a parent under Part B of the Act if-- (1) The natural parents' authority to make educational decisions on the child's behalf has been extinguished under State law; and (2) The foster parent-- (i) Has an ongoing, long-term parental relationship with the child; (ii) Is willing to make the educational decisions required of parents under the Act; and (iii) Has no interest that would conflict with the interests of the child. (Authority: 20 U.S.C. 1401(19)) Sec. 300.21 Personally identifiable As used in this part, the term personally identifiable has the meaning given that term in Sec. 300.500(b)(3). (Authority: 20 U.S.C. 1415(a)) Sec. 300.22 Public agency. As used in this part, the term public agency includes the SEA, LEAs, ESAs, public charter schools that are not otherwise included as LEAs or ESAs and are not a school of an LEA or ESA, and any other political subdivisions of the State that are responsible for providing education to children with disabilities. (Authority: 20 U.S.C. 1412(a)(1)(A), (a)(11)) Sec. 300.23 Qualified personnel. As used in this part, the term qualified personnel means personnel who have met SEA-approved or SEA-recognized certification, licensing, registration, or other comparable requirements that apply to the area in which the individuals are providing special education or related services. (Authority: 20 U.S.C. 1221e-3) Sec. 300.24 Related services. (a) General. As used in this part, the term related services means transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education, and includes speech- language pathology and audiology services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, early identification and assessment of disabilities in children, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services for diagnostic or evaluation purposes. The term also includes school health services, social work services in schools, and parent counseling and training. (b) Individual terms defined. The terms used in this definition are defined as follows: (1) Audiology includes-- (i) Identification of children with hearing loss; (ii) Determination of the range, nature, and degree of hearing loss, including referral for medical or other professional attention for the habilitation of hearing; (iii) P