[Federal Register: March 12, 1999 (Volume 64, Number 48)]
[Rules and Regulations]
[Page 12455-12504]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12mr99-13]

[[pp. 12455-12504]] Assistance to States for the Education of Children With
Disabilities and the Early Intervention Program for Infants and
Toddlers With Disabilities

[[Continued from page 12454]]

[[Page 12455]]

    (b) Current placement. If a child is placed in an interim
alternative educational setting pursuant to Sec. 300.520(a)(2) or
300.521 and school personnel propose to change the child's placement
after expiration of the interim alternative placement, during the
pendency of any proceeding to challenge the proposed change in
placement the child must remain in the current placement (the child's
placement prior to the interim alternative educational setting), except
as provided in paragraph (c) of this section.
    (c) Expedited hearing. (1) If school personnel maintain that it is
dangerous for the child to be in the current placement (placement prior
to removal to the interim alternative education setting) during the
pendency of the due process proceedings, the LEA may request an
expedited due process hearing.
    (2) In determining whether the child may be placed in the
alternative educational setting or in another appropriate placement
ordered by the hearing officer, the hearing officer shall apply the
standards in Sec. 300.521.
    (3) A placement ordered pursuant to paragraph (c)(2) of this
section may not be longer than 45 days.
    (4) The procedure in paragraph (c) of this section may be repeated,
as necessary.

(Authority: 20 U.S.C. 1415(k)(7))

Sec. 300.527  Protections for children not yet eligible for special
education and related services.

    (a) General. A child who has not been determined to be eligible for
special education and related services under this part and who has
engaged in behavior that violated any rule or code of conduct of the
local educational agency, including any behavior described in
Secs. 300.520 or 300.521, may assert any of the protections provided
for in this part if the LEA had knowledge (as determined in accordance
with paragraph (b) of this section) that the child was a child with a
disability before the behavior that precipitated the disciplinary
action occurred.
    (b) Basis of knowledge. An LEA must be deemed to have knowledge
that a child is a child with a disability if--
    (1) The parent of the child has expressed concern in writing (or
orally if the parent does not know how to write or has a disability
that prevents a written statement) to personnel of the appropriate
educational agency that the child is in need of special education and
related services;
    (2) The behavior or performance of the child demonstrates the need
for these services, in accordance with Sec. 300.7;
    (3) The parent of the child has requested an evaluation of the
child pursuant to Secs. 300.530-300.536; or
    (4) The teacher of the child, or other personnel of the local
educational agency, has expressed concern about the behavior or
performance of the child to the director of special education of the
agency or to other personnel in accordance with the agency's
established child find or special education referral system.
    (c) Exception. A public agency would not be deemed to have
knowledge under paragraph (b) of this section if, as a result of
receiving the information specified in that paragraph, the agency--
    (1) Either--
    (i) Conducted an evaluation under Secs. 300.530-300.536, and
determined that the child was not a child with a disability under this
part; or
    (ii) Determined that an evaluation was not necessary; and
    (2) Provided notice to the child's parents of its determination
under paragraph (c)(1) of this section, consistent with Sec. 300.503.
    (d) Conditions that apply if no basis of knowledge. (1) General. If
an LEA does not have knowledge that a child is a child with a
disability (in accordance with paragraphs (b) and (c) of this section)
prior to taking disciplinary measures against the child, the child may
be subjected to the same disciplinary measures as measures applied to
children without disabilities who engaged in comparable behaviors
consistent with paragraph (d)(2) of this section.
    (2) Limitations. (i) If a request is made for an evaluation of a
child during the time period in which the child is subjected to
disciplinary measures under Sec. 300.520 or 300.521, the evaluation
must be conducted in an expedited manner.
    (ii) Until the evaluation is completed, the child remains in the
educational placement determined by school authorities, which can
include suspension or expulsion without educational services.
    (iii) If the child is determined to be a child with a disability,
taking into consideration information from the evaluation conducted by
the agency and information provided by the parents, the agency shall
provide special education and related services in accordance with the
provisions of this part, including the requirements of Secs. 300.520-
300.529 and section 612(a)(1)(A) of the Act.

(Authority: 20 U.S.C. 1415(k)(8))

Sec. 300.528  Expedited due process hearings.

    (a) Expedited due process hearings under Secs. 300.521-300.526
must--
    (1) Meet the requirements of Sec. 300.509, except that a State may
provide that the time periods identified in Secs. 300.509(a)(3) and
Sec. 300.509(b) for purposes of expedited due process hearings under
Secs. 300.521-300.526 are not less than two business days; and
    (2) Be conducted by a due process hearing officer who satisfies the
requirements of Sec. 300.508.
    (b)(1) Each State shall establish a timeline for expedited due
process hearings that results in a written decision being mailed to the
parties within 45 days of the public agency's receipt of the request
for the hearing, without exceptions or extensions.
    (2) The timeline established under paragraph (b)(1) of this section
must be the same for hearings requested by parents or public agencies.
    (c) A State may establish different procedural rules for expedited
hearings under Secs. 300.521-300.526 than it has established for due
process hearings under Sec. 300.507.
    (d) The decisions on expedited due process hearings are appealable
consistent with Sec. 300.510.

(Authority: 20 U.S.C. 1415(k)(2), (6), (7))

Sec. 300.529  Referral to and action by law enforcement and judicial
authorities.

    (a) Nothing in this part prohibits an agency from reporting a crime
committed by a child with a disability to appropriate authorities or to
prevent State law enforcement and judicial authorities from exercising
their responsibilities with regard to the application of Federal and
State law to crimes committed by a child with a disability.
    (b)(1) An agency reporting a crime committed by a child with a
disability shall ensure that copies of the special education and
disciplinary records of the child are transmitted for consideration by
the appropriate authorities to whom it reports the crime.
    (2) An agency reporting a crime under this section may transmit
copies of the child's special education and disciplinary records only
to the extent that the transmission is permitted by the Family
Educational Rights and Privacy Act.

(Authority: 20 U.S.C. 1415(k)(9))

Procedures for Evaluation and Determination of Eligibility

Sec. 300.530  General.

    Each SEA shall ensure that each public agency establishes and

[[Page 12456]]

implements procedures that meet the requirements of Secs. 300.531-
300.536.

(Authority: 20 U.S.C. 1414(b)(3); 1412(a)(7))

Sec. 300.531  Initial evaluation.

    Each public agency shall conduct a full and individual initial
evaluation, in accordance with Secs. 300.532 and 300.533, before the
initial provision of special education and related services to a child
with a disability under Part B of the Act.

(Authority: 20 U.S.C. 1414(a)(1))

Sec. 300.532  Evaluation procedures.

    Each public agency shall ensure, at a minimum, that the following
requirements are met:
    (a)(1) Tests and other evaluation materials used to assess a child
under Part B of the Act--
    (i) Are selected and administered so as not to be discriminatory on
a racial or cultural basis; and
    (ii) Are provided and administered in the child's native language
or other mode of communication, unless it is clearly not feasible to do
so; and
    (2) Materials and procedures used to assess a child with limited
English proficiency are selected and administered to ensure that they
measure the extent to which the child has a disability and needs
special education, rather than measuring the child's English language
skills.
    (b) A variety of assessment tools and strategies are used to gather
relevant functional and developmental information about the child,
including information provided by the parent, and information related
to enabling the child to be involved in and progress in the general
curriculum (or for a preschool child, to participate in appropriate
activities), that may assist in determining--
    (1) Whether the child is a child with a disability under
Sec. 300.7; and
    (2) The content of the child's IEP.
    (c)(1) Any standardized tests that are given to a child--
    (i) Have been validated for the specific purpose for which they are
used; and
    (ii) Are administered by trained and knowledgeable personnel in
accordance with any instructions provided by the producer of the tests.
    (2) If an assessment is not conducted under standard conditions, a
description of the extent to which it varied from standard conditions
(e.g., the qualifications of the person administering the test, or the
method of test administration) must be included in the evaluation
report.
    (d) Tests and other evaluation materials include those tailored to
assess specific areas of educational need and not merely those that are
designed to provide a single general intelligence quotient.
    (e) Tests are selected and administered so as best to ensure that
if a test is administered to a child with impaired sensory, manual, or
speaking skills, the test results accurately reflect the child's
aptitude or achievement level or whatever other factors the test
purports to measure, rather than reflecting the child's impaired
sensory, manual, or speaking skills (unless those skills are the
factors that the test purports to measure).
    (f) No single procedure is used as the sole criterion for
determining whether a child is a child with a disability and for
determining an appropriate educational program for the child.
    (g) The child is assessed in all areas related to the suspected
disability, including, if appropriate, health, vision, hearing, social
and emotional status, general intelligence, academic performance,
communicative status, and motor abilities.
    (h) In evaluating each child with a disability under Secs. 300.531-
300.536, the evaluation is sufficiently comprehensive to identify all
of the child's special education and related services needs, whether or
not commonly linked to the disability category in which the child has
been classified.
    (i) The public agency uses technically sound instruments that may
assess the relative contribution of cognitive and behavioral factors,
in addition to physical or developmental factors.
    (j) The public agency uses assessment tools and strategies that
provide relevant information that directly assists persons in
determining the educational needs of the child.

(Authority: 20 U.S.C. 1412(a)(6)(B), 1414(b)(2) and (3))

Sec. 300.533  Determination of needed evaluation data.

    (a) Review of existing evaluation data. As part of an initial
evaluation (if appropriate) and as part of any reevaluation under Part
B of the Act, a group that includes the individuals described in
Sec. 300.344, and other qualified professionals, as appropriate,
shall--
    (1) Review existing evaluation data on the child, including--
    (i) Evaluations and information provided by the parents of the
child;
    (ii) Current classroom-based assessments and observations; and
    (iii) Observations by teachers and related services providers; and
    (2) On the basis of that review, and input from the child's
parents, identify what additional data, if any, are needed to
determine--
    (i) Whether the child has a particular category of disability, as
described in Sec. 300.7, or, in case of a reevaluation of a child,
whether the child continues to have such a disability;
    (ii) The present levels of performance and educational needs of the
child;
    (iii) Whether the child needs special education and related
services, or in the case of a reevaluation of a child, whether the
child continues to need special education and related services; and
    (iv) Whether any additions or modifications to the special
education and related services are needed to enable the child to meet
the measurable annual goals set out in the IEP of the child and to
participate, as appropriate, in the general curriculum.
    (b) Conduct of review. The group described in paragraph (a) of this
section may conduct its review without a meeting.
    (c) Need for additional data. The public agency shall administer
tests and other evaluation materials as may be needed to produce the
data identified under paragraph (a) of this section.
    (d) Requirements if additional data are not needed. (1) If the
determination under paragraph (a) of this section is that no additional
data are needed to determine whether the child continues to be a child
with a disability, the public agency shall notify the child's parents--
    (i) Of that determination and the reasons for it; and
    (ii) Of the right of the parents to request an assessment to
determine whether, for purposes of services under this part, the child
continues to be a child with a disability.
    (2) The public agency is not required to conduct the assessment
described in paragraph (d)(1)(ii) of this section unless requested to
do so by the child's parents.

(Authority: 20 U.S.C. 1414(c)(1), (2) and (4))

Sec. 300.534  Determination of eligibility

    (a) Upon completing the administration of tests and other
evaluation materials--
    (1) A group of qualified professionals and the parent of the child
must determine whether the child is a child with a disability, as
defined in Sec. 300.7; and
    (2) The public agency must provide a copy of the evaluation report
and the documentation of determination of eligibility to the parent.
    (b) A child may not be determined to be eligible under this part
if--
    (1) The determinant factor for that eligibility determination is--

[[Page 12457]]

    (i) Lack of instruction in reading or math; or
    (ii) Limited English proficiency; and
    (2) The child does not otherwise meet the eligibility criteria
under Sec. 300.7(a).
    (c)(1) A public agency must evaluate a child with a disability in
accordance with Secs. 300.532 and 300.533 before determining that the
child is no longer a child with a disability.
    (2) The evaluation described in paragraph (c)(1) of this section is
not required before the termination of a student's eligibility under
Part B of the Act due to graduation with a regular high school diploma,
or exceeding the age eligibility for FAPE under State law.

(Authority: 20 U.S.C. 1414(b)(4) and (5), (c)(5))

Sec. 300.535  Procedures for determining eligibility and placement.

    (a) In interpreting evaluation data for the purpose of determining
if a child is a child with a disability under Sec. 300.7, and the
educational needs of the child, each public agency shall--
    (1) Draw upon information from a variety of sources, including
aptitude and achievement tests, parent input, teacher recommendations,
physical condition, social or cultural background, and adaptive
behavior; and
    (2) Ensure that information obtained from all of these sources is
documented and carefully considered.
    (b) If a determination is made that a child has a disability and
needs special education and related services, an IEP must be developed
for the child in accordance with Secs. 300.340-300.350.

(Authority: 20 U.S.C. 1412(a)(6), 1414(b)(4))

Sec. 300.536  Reevaluation.

    Each public agency shall ensure--
    (a) That the IEP of each child with a disability is reviewed in
accordance with Secs. 300.340-300.350; and
    (b) That a reevaluation of each child, in accordance with
Secs. 300.532-300.535, is conducted if conditions warrant a
reevaluation, or if the child's parent or teacher requests a
reevaluation, but at least once every three years.

(Authority: 20 U.S.C. 1414(a)(2))

Additional Procedures for Evaluating Children With Specific
Learning Disabilities

Sec. 300.540  Additional team members.

    The determination of whether a child suspected of having a specific
learning disability is a child with a disability as defined in
Sec. 300.7, must be made by the child's parents and a team of qualified
professionals which must include--
    (a)(1) The child's regular teacher; or
    (2) If the child does not have a regular teacher, a regular
classroom teacher qualified to teach a child of his or her age; or
    (3) For a child of less than school age, an individual qualified by
the SEA to teach a child of his or her age; and
    (b) At least one person qualified to conduct individual diagnostic
examinations of children, such as a school psychologist, speech-
language pathologist, or remedial reading teacher.

(Authority: Sec. 5(b), Pub. L. 94-142)

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

    (a) A team may determine that a child has a specific learning
disability if--
    (1) The child does not achieve commensurate with his or her age and
ability levels in one or more of the areas listed in paragraph (a)(2)
of this section, if provided with learning experiences appropriate for
the child's age and ability levels; and
    (2) The team finds that a child has a severe discrepancy between
achievement and intellectual ability in one or more of the following
areas:
    (i) Oral expression.
    (ii) Listening comprehension.
    (iii) Written expression.
    (iv) Basic reading skill.
    (v) Reading comprehension.
    (vi) Mathematics calculation.
    (vii) Mathematics reasoning.
    (b) The team may not identify a child as having a specific learning
disability if the severe discrepancy between ability and achievement is
primarily the result of--
    (1) A visual, hearing, or motor impairment;
    (2) Mental retardation;
    (3) Emotional disturbance; or
    (4) Environmental, cultural or economic disadvantage.

(Authority: Sec. 5(b), Pub. L. 94-142)

Sec. 300.542  Observation.

    (a) At least one team member other than the child's regular teacher
shall observe the child's academic performance in the regular classroom
setting.
    (b) In the case of a child of less than school age or out of
school, a team member shall observe the child in an environment
appropriate for a child of that age.

(Authority: Sec. 5(b), Pub. L. 94-142)

Sec. 300.543  Written report.

    (a) For a child suspected of having a specific learning disability,
the documentation of the team's determination of eligibility, as
required by Sec. 300.534(a)(2), must include a statement of--
    (1) Whether the child has a specific learning disability;
    (2) The basis for making the determination;
    (3) The relevant behavior noted during the observation of the
child;
    (4) The relationship of that behavior to the child's academic
functioning;
    (5) The educationally relevant medical findings, if any;
    (6) Whether there is a severe discrepancy between achievement and
ability that is not correctable without special education and related
services; and
    (7) The determination of the team concerning the effects of
environmental, cultural, or economic disadvantage.
    (b) Each team member shall certify in writing whether the report
reflects his or her conclusion. If it does not reflect his or her
conclusion, the team member must submit a separate statement presenting
his or her conclusions.

(Authority: Sec. 5(b), Pub. L. 94-142)

Least Restrictive Environment (LRE)

Sec. 300.550  General LRE requirements.

    (a) Except as provided in Sec. 300.311(b) and (c), a State shall
demonstrate to the satisfaction of the Secretary that the State has in
effect policies and procedures to ensure that it meets the requirements
of Secs. 300.550-300.556.
    (b) Each public agency shall ensure--
    (1) That to the maximum extent appropriate, children with
disabilities, including children in public or private institutions or
other care facilities, are educated with children who are nondisabled;
and
    (2) That special classes, separate schooling or other removal of
children with disabilities from the regular educational environment
occurs only if the nature or severity of the disability is such that
education in regular classes with the use of supplementary aids and
services cannot be achieved satisfactorily.

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

Sec. 300.551  Continuum of alternative placements.

    (a) Each public agency shall ensure that a continuum of alternative
placements is available to meet the needs of children with disabilities
for special education and related services.
    (b) The continuum required in paragraph (a) of this section must--
    (1) Include the alternative placements listed in the definition of
special education under Sec. 300.26 (instruction in regular classes,
special classes, special schools, home instruction, and instruction in
hospitals and institutions); and
    (2) Make provision for supplementary services (such as resource
room or

[[Page 12458]]

itinerant instruction) to be provided in conjunction with regular class
placement.

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

Sec. 300.552  Placements.

    In determining the educational placement of a child with a
disability, including a preschool child with a disability, each public
agency shall ensure that--
    (a) The placement decision--
    (1) Is made by a group of persons, including the parents, and other
persons knowledgeable about the child, the meaning of the evaluation
data, and the placement options; and
    (2) Is made in conformity with the LRE provisions of this subpart,
including Secs. 300.550-300.554;
    (b) The child's placement--
    (1) Is determined at least annually;
    (2) Is based on the child's IEP; and
    (3) Is as close as possible to the child's home;
    (c) Unless the IEP of a child with a disability requires some other
arrangement, the child is educated in the school that he or she would
attend if nondisabled;
    (d) In selecting the LRE, consideration is given to any potential
harmful effect on the child or on the quality of services that he or
she needs; and
    (e) A child with a disability is not removed from education in age-
appropriate regular classrooms solely because of needed modifications
in the general curriculum.

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

Sec. 300.553  Nonacademic settings.

    In providing or arranging for the provision of nonacademic and
extracurricular services and activities, including meals, recess
periods, and the services and activities set forth in Sec. 300.306,
each public agency shall ensure that each child with a disability
participates with nondisabled children in those services and activities
to the maximum extent appropriate to the needs of that child.

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

Sec. 300.554  Children in public or private institutions.

    Except as provided in Sec. 300.600(d), an SEA must ensure that
Sec. 300.550 is effectively implemented, including, if necessary,
making arrangements with public and private institutions (such as a
memorandum of agreement or special implementation procedures).

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

Sec. 300.555  Technical assistance and training activities.

    Each SEA shall carry out activities to ensure that teachers and
administrators in all public agencies--
    (a) Are fully informed about their responsibilities for
implementing Sec. 300.550; and
    (b) Are provided with technical assistance and training necessary
to assist them in this effort.

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

Sec. 300.556  Monitoring activities.

    (a) The SEA shall carry out activities to ensure that Sec. 300.550
is implemented by each public agency.
    (b) If there is evidence that a public agency makes placements that
are inconsistent with Sec. 300.550, the SEA shall--
    (1) Review the public agency's justification for its actions; and
    (2) Assist in planning and implementing any necessary corrective
action.

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

Confidentiality of Information

Sec. 300.560   Definitions.

    As used in Secs. 300.560-300.577--
    (a) Destruction means physical destruction or removal of personal
identifiers from information so that the information is no longer
personally identifiable.
    (b) Education records means the type of records covered under the
definition of ``education records'' in 34 CFR part 99 (the regulations
implementing the Family Educational Rights and Privacy Act of 1974).
    (c) Participating agency means any agency or institution that
collects, maintains, or uses personally identifiable information, or
from which information is obtained, under Part B of the Act.

(Authority: 20 U.S.C. 1221e-3, 1412(a)(8), 1417(c))

Sec. 300.561  Notice to parents.

    (a) The SEA shall give notice that is adequate to fully inform
parents about the requirements of Sec. 300.127, including--
    (1) A description of the extent that the notice is given in the
native languages of the various population groups in the State;
    (2) A description of the children on whom personally identifiable
information is maintained, the types of information sought, the methods
the State intends to use in gathering the information (including the
sources from whom information is gathered), and the uses to be made of
the information;
    (3) A summary of the policies and procedures that participating
agencies must follow regarding storage, disclosure to third parties,
retention, and destruction of personally identifiable information; and
    (4) A description of all of the rights of parents and children
regarding this information, including the rights under the Family
Educational Rights and Privacy Act of 1974 and implementing regulations
in 34 CFR part 99.
    (b) Before any major identification, location, or evaluation
activity, the notice must be published or announced in newspapers or
other media, or both, with circulation adequate to notify parents
throughout the State of the activity.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))

Sec. 300.562  Access rights.

    (a) Each participating agency shall permit parents to inspect and
review any education records relating to their children that are
collected, maintained, or used by the agency under this part. The
agency shall comply with a request without unnecessary delay and before
any meeting regarding an IEP, or any hearing pursuant to Secs. 300.507
and 300.521-300.528, and in no case more than 45 days after the request
has been made.
    (b) The right to inspect and review education records under this
section includes--
    (1) The right to a response from the participating agency to
reasonable requests for explanations and interpretations of the
records;
    (2) The right to request that the agency provide copies of the
records containing the information if failure to provide those copies
would effectively prevent the parent from exercising the right to
inspect and review the records; and
    (3) The right to have a representative of the parent inspect and
review the records.
    (c) An agency may presume that the parent has authority to inspect
and review records relating to his or her child unless the agency has
been advised that the parent does not have the authority under
applicable State law governing such matters as guardianship,
separation, and divorce.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))

Sec. 300.563  Record of access.

    Each participating agency shall keep a record of parties obtaining
access to education records collected, maintained, or used under Part B
of the Act (except access by parents and authorized employees of the

[[Page 12459]]

participating agency), including the name of the party, the date access
was given, and the purpose for which the party is authorized to use the
records.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))

Sec. 300.564  Records on more than one child.

    If any education record includes information on more than one
child, the parents of those children have the right to inspect and
review only the information relating to their child or to be informed
of that specific information.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))

Sec. 300.565  List of types and locations of information.

    Each participating agency shall provide parents on request a list
of the types and locations of education records collected, maintained,
or used by the agency.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))

Sec. 300.566  Fees.

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

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))

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

    (a) A parent who believes that information in the education records
collected, maintained, or used under this part is inaccurate or
misleading or violates the privacy or other rights of the child may
request the participating agency that maintains the information to
amend the information.
    (b) The agency shall decide whether to amend the information in
accordance with the request within a reasonable period of time of
receipt of the request.
    (c) If the agency decides to refuse to amend the information in
accordance with the request, it shall inform the parent of the refusal
and advise the parent of the right to a hearing under Sec. 300.568.

(Authority: 20 U.S.C. 1412(a)(8); 1417(c))

Sec. 300.568  Opportunity for a hearing.

    The agency shall, on request, provide an opportunity for a hearing
to challenge information in education records to ensure that it is not
inaccurate, misleading, or otherwise in violation of the privacy or
other rights of the child.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))

Sec. 300.569  Result of hearing.

    (a) If, as a result of the hearing, the agency decides that the
information is inaccurate, misleading or otherwise in violation of the
privacy or other rights of the child, it shall amend the information
accordingly and so inform the parent in writing.
    (b) If, as a result of the hearing, the agency decides that the
information is not inaccurate, misleading, or otherwise in violation of
the privacy or other rights of the child, it shall inform the parent of
the right to place in the records it maintains on the child a statement
commenting on the information or setting forth any reasons for
disagreeing with the decision of the agency.
    (c) Any explanation placed in the records of the child under this
section must--
    (1) Be maintained by the agency as part of the records of the child
as long as the record or contested portion is maintained by the agency;
and
    (2) If the records of the child or the contested portion is
disclosed by the agency to any party, the explanation must also be
disclosed to the party.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))

Sec. 300.570  Hearing procedures.

    A hearing held under Sec. 300.568 must be conducted according to
the procedures under 34 CFR 99.22.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))

Sec. 300.571  Consent.

    (a) Except as to disclosures addressed in Sec. 300.529(b) for which
parental consent is not required by Part 99, parental consent must be
obtained before personally identifiable information is--
    (1) Disclosed to anyone other than officials of participating
agencies collecting or using the information under this part, subject
to paragraph (b) of this section; or
    (2) Used for any purpose other than meeting a requirement of this
part.
    (b) An educational agency or institution subject to 34 CFR part 99
may not release information from education records to participating
agencies without parental consent unless authorized to do so under part
99.
    (c) The SEA shall provide policies and procedures that are used in
the event that a parent refuses to provide consent under this section.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))

Sec. 300.572  Safeguards.

    (a) Each participating agency shall protect the confidentiality of
personally identifiable information at collection, storage, disclosure,
and destruction stages.
    (b) One official at each participating agency shall assume
responsibility for ensuring the confidentiality of any personally
identifiable information.
    (c) All persons collecting or using personally identifiable
information must receive training or instruction regarding the State's
policies and procedures under Sec. 300.127 and 34 CFR part 99.
    (d) Each participating agency shall maintain, for public
inspection, a current listing of the names and positions of those
employees within the agency who may have access to personally
identifiable information.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))

Sec. 300.573  Destruction of information.

    (a) The public agency shall inform parents when personally
identifiable information collected, maintained, or used under this part
is no longer needed to provide educational services to the child.
    (b) The information must be destroyed at the request of the
parents. However, a permanent record of a student's name, address, and
phone number, his or her grades, attendance record, classes attended,
grade level completed, and year completed may be maintained without
time limitation.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))

Sec. 300.574  Children's rights.

    (a) The SEA shall provide policies and procedures regarding the
extent to which children are afforded rights of privacy similar to
those afforded to parents, taking into consideration the age of the
child and type or severity of disability.
    (b) Under the regulations for the Family Educational Rights and
Privacy Act of 1974 (34 CFR 99.5(a)), the rights of parents regarding
education records are transferred to the student at age 18.
    (c) If the rights accorded to parents under Part B of the Act are
transferred to a student who reaches the age of majority, consistent
with Sec. 300.517, the rights regarding educational records in
Secs. 300.562-300.573 must also be transferred to the student. However,
the public agency must provide any notice required under section 615 of
the Act to the student and the parents.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))

Sec. 300.575  Enforcement.

    The SEA shall provide the policies and procedures, including
sanctions, that the State uses to ensure that its policies and
procedures are followed and that the requirements of the Act and the
regulations in this part are met.

[[Page 12460]]

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))

Sec. 300.576  Disciplinary information.

    (a) The State may require that a public agency include in the
records of a child with a disability a statement of any current or
previous disciplinary action that has been taken against the child and
transmit the statement to the same extent that the disciplinary
information is included in, and transmitted with, the student records
of nondisabled children.
    (b) The statement may include a description of any behavior engaged
in by the child that required disciplinary action, a description of the
disciplinary action taken, and any other information that is relevant
to the safety of the child and other individuals involved with the
child.
    (c) If the State adopts such a policy, and the child transfers from
one school to another, the transmission of any of the child's records
must include both the child's current individualized education program
and any statement of current or previous disciplinary action that has
been taken against the child.

(Authority: 20 U.S.C. 1413(j))

Sec. 300.577  Department use of personally identifiable information.

    If the Department or its authorized representatives collect any
personally identifiable information regarding children with
disabilities that is not subject to 5 U.S.C. 552a (the Privacy Act of
1974), the Secretary applies the requirements of 5 U.S.C. 552a (b)(1)-
(2), (4)-(11); (c); (d); (e)(1), (2), (3)(A), (B), and (D), (5)-(10);
(h); (m); and (n); and the regulations implementing those provisions in
34 CFR part 5b.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))

Department Procedures

Sec. 300.580  Determination by the Secretary that a State is eligible.

    If the Secretary determines that a State is eligible to receive a
grant under Part B of the Act, the Secretary notifies the State of that
determination.

(Authority: 20 U.S.C. 1412(d))

Sec. 300.581  Notice and hearing before determining that a State is not
eligible.

    (a) General. (1) The Secretary does not make a final determination
that a State is not eligible to receive a grant under Part B of the Act
until providing the State--
    (i) With reasonable notice; and
    (ii) With an opportunity for a hearing.
    (2) In implementing paragraph (a)(1)(i) of this section, the
Secretary sends a written notice to the SEA by certified mail with
return receipt requested.
    (b) Content of notice. In the written notice described in paragraph
(a)(2) of this section, the Secretary--
    (1) States the basis on which the Secretary proposes to make a
final determination that the State is not eligible;
    (2) May describe possible options for resolving the issues;
    (3) Advises the SEA that it may request a hearing and that the
request for a hearing must be made not later than 30 days after it
receives the notice of the proposed final determination that the State
is not eligible; and
    (4) Provides information about the procedures followed for a
hearing.

(Authority: 20 U.S.C. (1412(d)(2))

Sec. 300.582  Hearing official or panel.

    (a) If the SEA requests a hearing, the Secretary designates one or
more individuals, either from the Department or elsewhere, not
responsible for or connected with the administration of this program,
to conduct a hearing.
    (b) If more than one individual is designated, the Secretary
designates one of those individuals as the Chief Hearing Official of
the Hearing Panel. If one individual is designated, that individual is
the Hearing Official.

(Authority: 20 U.S.C. (1412(d)(2))

Sec. 300.583  Hearing procedures.

    (a) As used in Secs. 300.581-300.586 the term party or parties
means the following:
    (1) An SEA that requests a hearing regarding the proposed
disapproval of the State's eligibility under this part.
    (2) The Department official who administers the program of
financial assistance under this part.
    (3) A person, group or agency with an interest in and having
relevant information about the case that has applied for and been
granted leave to intervene by the Hearing Official or Panel.
    (b) Within 15 days after receiving a request for a hearing, the
Secretary designates a Hearing Official or Panel and notifies the
parties.
    (c) The Hearing Official or Panel may regulate the course of
proceedings and the conduct of the parties during the proceedings. The
Hearing Official or Panel takes all steps necessary to conduct a fair
and impartial proceeding, to avoid delay, and to maintain order,
including the following:
    (1) The Hearing Official or Panel may hold conferences or other
types of appropriate proceedings to clarify, simplify, or define the
issues or to consider other matters that may aid in the disposition of
the case.
    (2) The Hearing Official or Panel may schedule a prehearing
conference of the Hearing Official or Panel and parties.
    (3) Any party may request the Hearing Official or Panel to schedule
a prehearing or other conference. The Hearing Official or Panel decides
whether a conference is necessary and notifies all parties.
    (4) At a prehearing or other conference, the Hearing Official or
Panel and the parties may consider subjects such as--
    (i) Narrowing and clarifying issues;
    (ii) Assisting the parties in reaching agreements and stipulations;
    (iii) Clarifying the positions of the parties;
    (iv) Determining whether an evidentiary hearing or oral argument
should be held; and
    (v) Setting dates for--
    (A) The exchange of written documents;
    (B) The receipt of comments from the parties on the need for oral
argument or evidentiary hearing;
    (C) Further proceedings before the Hearing Official or Panel
(including an evidentiary hearing or oral argument, if either is
scheduled);
    (D) Requesting the names of witnesses each party wishes to present
at an evidentiary hearing and estimation of time for each presentation;
or
    (E) Completion of the review and the initial decision of the
Hearing Official or Panel.
    (5) A prehearing or other conference held under paragraph (b)(4) of
this section may be conducted by telephone conference call.
    (6) At a prehearing or other conference, the parties shall be
prepared to discuss the subjects listed in paragraph (b)(4) of this
section.
    (7) Following a prehearing or other conference the Hearing Official
or Panel may issue a written statement describing the issues raised,
the action taken, and the stipulations and agreements reached by the
parties.
    (d) The Hearing Official or Panel may require parties to state
their positions and to provide all or part of the evidence in writing.
    (e) The Hearing Official or Panel may require parties to present
testimony through affidavits and to conduct cross-examination through
interrogatories.
    (f) The Hearing Official or Panel may direct the parties to
exchange relevant documents or information and lists of witnesses, and
to send copies to the Hearing Official or Panel.
    (g) The Hearing Official or Panel may receive, rule on, exclude, or
limit evidence at any stage of the proceedings.

[[Page 12461]]

    (h) The Hearing Official or Panel may rule on motions and other
issues at any stage of the proceedings.
    (i) The Hearing Official or Panel may examine witnesses.
    (j) The Hearing Official or Panel may set reasonable time limits
for submission of written documents.
    (k) The Hearing Official or Panel may refuse to consider documents
or other submissions if they are not submitted in a timely manner
unless good cause is shown.
    (l) The Hearing Official or Panel may interpret applicable statutes
and regulations but may not waive them or rule on their validity.
    (m)(1) The parties shall present their positions through briefs and
the submission of other documents and may request an oral argument or
evidentiary hearing. The Hearing Official or Panel shall determine
whether an oral argument or an evidentiary hearing is needed to clarify
the positions of the parties.
    (2) The Hearing Official or Panel gives each party an opportunity
to be represented by counsel.
    (n) If the Hearing Official or Panel determines that an evidentiary
hearing would materially assist the resolution of the matter, the
Hearing Official or Panel gives each party, in addition to the
opportunity to be represented by counse--
    (1) An opportunity to present witnesses on the party's behalf; and
    (2) An opportunity to cross-examine witnesses either orally or with
written questions.
    (o) The Hearing Official or Panel accepts any evidence that it
finds is relevant and material to the proceedings and is not unduly
repetitious.
    (p)(1) The Hearing Official or Panel--
    (i) Arranges for the preparation of a transcript of each hearing;
    (ii) Retains the original transcript as part of the record of the
hearing; and
    (iii) Provides one copy of the transcript to each party.
    (2) Additional copies of the transcript are available on request
and with payment of the reproduction fee.
    (q) Each party shall file with the Hearing Official or Panel all
written motions, briefs, and other documents and shall at the same time
provide a copy to the other parties to the proceedings.

(Authority: 20 U.S.C. (1412(d)(2))

Sec. 300.584  Initial decision; final decision.

    (a) The Hearing Official or Panel prepares an initial written
decision that addresses each of the points in the notice sent by the
Secretary to the SEA under Sec. 300.581.
    (b) The initial decision of a Panel is made by a majority of Panel
members.
    (c) The Hearing Official or Panel mails by certified mail with
return receipt requested a copy of the initial decision to each party
(or to the party's counsel) and to the Secretary, with a notice stating
that each party has an opportunity to submit written comments regarding
the decision to the Secretary.
    (d) Each party may file comments and recommendations on the initial
decision with the Hearing Official or Panel within 15 days of the date
the party receives the Panel's decision.
    (e) The Hearing Official or Panel sends a copy of a party's initial
comments and recommendations to the other parties by certified mail
with return receipt requested. Each party may file responsive comments
and recommendations with the Hearing Official or Panel within seven
days of the date the party receives the initial comments and
recommendations.
    (f) The Hearing Official or Panel forwards the parties' initial and
responsive comments on the initial decision to the Secretary who
reviews the initial decision and issues a final decision.
    (g) The initial decision of the Hearing Official or Panel becomes
the final decision of the Secretary unless, within 25 days after the
end of the time for receipt of written comments, the Secretary informs
the Hearing Official or Panel and the parties to a hearing in writing
that the decision is being further reviewed for possible modification.
    (h) The Secretary may reject or modify the initial decision of the
Hearing Official or Panel if the Secretary finds that it is clearly
erroneous.
    (i) The Secretary conducts the review based on the initial
decision, the written record, the Hearing Official's or Panel's
proceedings, and written comments. The Secretary may remand the matter
for further proceedings.
    (j) The Secretary issues the final decision within 30 days after
notifying the Hearing Official or Panel that the initial decision is
being further reviewed.

(Authority: 20 U.S.C. (1412(d)(2))

Sec. 300.585  Filing requirements.

    (a) Any written submission under Secs. 300.581-300.585 must be
filed by hand-delivery, by mail, or by facsimile transmission. The
Secretary discourages the use of facsimile transmission for documents
longer than five pages.
    (b) The filing date under paragraph (a) of this section is the date
the document is--
    (1) Hand-delivered;
    (2) Mailed; or (3) Sent by facsimile transmission.
    (c) A party filing by facsimile transmission is responsible for
confirming that a complete and legible copy of the document was
received by the Department.
    (d) If a document is filed by facsimile transmission, the
Secretary, the Hearing Official, or the Panel, as applicable, may
require the filing of a follow-up hard copy by hand-delivery or by mail
within a reasonable period of time.
    (e) If agreed upon by the parties, service of a document may be
made upon the other party by facsimile transmission.

(Authority: 20 U.S.C. 1413(c))

Sec. 300.586  Judicial review.

    If a State is dissatisfied with the Secretary's final action with
respect to the eligibility of the State under section 612 of the Act,
the State may, not later than 60 days after notice of that action, file
with the United States Court of Appeals for the circuit in which that
State is located a petition for review of that action. A copy of the
petition must be forthwith transmitted by the clerk of the court to the
Secretary. The Secretary then files in the court the record of the
proceedings upon which the Secretary's action was based, as provided in
section 2112 of title 28, United States Code.

(Authority: 20 U.S.C. 1416(b))

Sec. 300.587  Enforcement.

    (a) General. The Secretary initiates an action described in
paragraph (b) of this section if the Secretary finds--
    (1) That there has been a failure by the State to comply
substantially with any provision of Part B of the Act, this part, or 34
CFR part 301; or
    (2) That there is a failure to comply with any condition of an
LEA's or SEA's eligibility under Part B of the Act, this part or 34 CFR
part 301, including the terms of any agreement to achieve compliance
with Part B of the Act, this part, or Part 301 within the timelines
specified in the agreement.
    (b) Types of action. The Secretary, after notifying the SEA (and
any LEA or State agency affected by a failure described in paragraph
(a)(2) of this section)--
    (1) Withholds in whole or in part any further payments to the State
under Part B of the Act;
    (2) Refers the matter to the Department of Justice for enforcement;
or
    (3) Takes any other enforcement action authorized by law.
    (c) Nature of withholding. (1) If the Secretary determines that it
is

[[Page 12462]]

appropriate to withhold further payments under paragraph (b)(1) of this
section, the Secretary may determine that the withholding will be
limited to programs or projects, or portions thereof, affected by the
failure, or that the SEA shall not make further payments under Part B
of the Act to specified LEA or State agencies affected by the failure.
    (2) Until the Secretary is satisfied that there is no longer any
failure to comply with the provisions of Part B of the Act, this part,
or 34 CFR part 301, as specified in paragraph (a) of this section,
payments to the State under Part B of the Act are withheld in whole or
in part, or payments by the SEA under Part B of the Act are limited to
local educational agencies and State agencies whose actions did not
cause or were not involved in the failure, as the case may be.
    (3) Any SEA, LEA, or other State agency that has received notice
under paragraph (a) of this section shall, by means of a public notice,
take such measures as may be necessary to bring the pendency of an
action pursuant to this subsection to the attention of the public
within the jurisdiction of that agency.
    (4) Before withholding under paragraph (b)(1) of this section, the
Secretary provides notice and a hearing pursuant to the procedures in
Secs. 300.581-300.586.
    (d) Referral for appropriate enforcement. (1) Before the Secretary
makes a referral under paragraph (b)(2) of this section for
enforcement, or takes any other enforcement action authorized by law
under paragraph (b)(3), the Secretary provides the State--
    (i) With reasonable notice; and
    (ii) With an opportunity for a hearing.
    (2) The hearing described in paragraph (d)(1)(ii) of this section
consists of an opportunity to meet with the Assistant Secretary for the
Office of Special Education and Rehabilitative Services to demonstrate
why the Department should not make a referral for enforcement.
    (e) Divided State agency responsibility. For purposes of this part,
if responsibility for ensuring that the requirements of this part are
met with respect to children with disabilities who are convicted as
adults under State law and incarcerated in adult prisons is assigned to
a public agency other than the SEA pursuant to Sec. 300.600(d), and if
the Secretary finds that the failure to comply substantially with the
provisions of Part B of the Act or this part are related to a failure
by the public agency, the Secretary takes one of the enforcement
actions described in paragraph (b) of this section to ensure compliance
with Part B of the Act and this part, except--
    (1) Any reduction or withholding of payments to the State under
paragraph (b)(1) of this section is proportionate to the total funds
allotted under section 611 of the Act to the State as the number of
eligible children with disabilities in adult prisons under the
supervision of the other public agency is proportionate to the number
of eligible individuals with disabilities in the State under the
supervision of the State educational agency; and
    (2) Any withholding of funds under paragraph (e)(1) of this section
is limited to the specific agency responsible for the failure to comply
with Part B of the Act or this part.

(Authority: 20 U.S.C. 1416)

Secs. 300.588  [Reserved]

Sec. 300.589  Waiver of requirement regarding supplementing and not
supplanting with Part B funds.

    (a) Except as provided under Secs. 300.232-300.235, funds paid to a
State under Part B of the Act must be used to supplement and increase
the level of Federal, State, and local funds (including funds that are
not under the direct control of SEAs or LEAs) expended for special
education and related services provided to children with disabilities
under Part B of the Act and in no case to supplant those Federal,
State, and local funds. A State may use funds it retains under
Sec. 300.602 without regard to the prohibition on supplanting other
funds (see Sec. 300.372).
    (b) If a State provides clear and convincing evidence that all
eligible children with disabilities throughout the State have FAPE
available to them, the Secretary may waive for a period of one year in
whole or in part the requirement under Sec. 300.153 (regarding State-
level nonsupplanting) if the Secretary concurs with the evidence
provided by the State.
    (c) If a State wishes to request a waiver under this section, it
must submit to the Secretary a written request that includes--
    (1) An assurance that FAPE is currently available, and will remain
available throughout the period that a waiver would be in effect, to
all eligible children with disabilities throughout the State,
regardless of the public agency that is responsible for providing FAPE
to them. The assurance must be signed by an official who has the
authority to provide that assurance as it applies to all eligible
children with disabilities in the State;
    (2) All evidence that the State wishes the Secretary to consider in
determining whether all eligible children with disabilities have FAPE
available to them, setting forth in detail--
    (i) The basis on which the State has concluded that FAPE is
available to all eligible children in the State; and
    (ii) The procedures that the State will implement to ensure that
FAPE remains available to all eligible children in the State, which
must include--
    (A) The State's procedures under Sec. 300.125 for ensuring that all
eligible children are identified, located and evaluated;
    (B) The State's procedures for monitoring public agencies to ensure
that they comply with all requirements of this part;
    (C) The State's complaint procedures under Secs. 300.660-300.662;
and
    (D) The State's hearing procedures under Secs. 300.507-300.511 and
300.520-300.528;
    (3) A summary of all State and Federal monitoring reports, and
State complaint decisions (see Secs. 300.660-300.662) and hearing
decisions (see Secs. 300.507-300.511 and 300.520-300.528), issued
within three years prior to the date of the State's request for a
waiver under this section, that includes any finding that FAPE has not
been available to one or more eligible children, and evidence that FAPE
is now available to all children addressed in those reports or
decisions; and
    (4) Evidence that the State, in determining that FAPE is currently
available to all eligible children with disabilities in the State, has
consulted with the State advisory panel under Sec. 300.650, the State's
parent training and information center or centers, the State's
protection and advocacy organization, and other organizations
representing the interests of children with disabilities and their
parents, and a summary of the input of these organizations.
    (d) If the Secretary determines that the request and supporting
evidence submitted by the State makes a prima facie showing that FAPE
is, and will remain, available to all eligible children with
disabilities in the State, the Secretary, after notice to the public
throughout the State, conducts a public hearing at which all interested
persons and organizations may present evidence regarding the following
issues:
    (1) Whether FAPE is currently available to all eligible children
with disabilities in the State.
    (2) Whether the State will be able to ensure that FAPE remains
available to all eligible children with disabilities in

[[Page 12463]]

the State if the Secretary provides the requested waiver.
    (e) Following the hearing, the Secretary, based on all submitted
evidence, will provide a waiver, in whole or in part, for a period of
one year if the Secretary finds that the State has provided clear and
convincing evidence that FAPE is currently available to all eligible
children with disabilities in the State, and the State will be able to
ensure that FAPE remains available to all eligible children with
disabilities in the State if the Secretary provides the requested
waiver.
    (f) A State may receive a waiver of the requirement of section
612(a)(19)(A) and Sec. 300.154(a) if it satisfies the requirements of
paragraphs (b) through (e) of this section.
    (g) The Secretary may grant subsequent waivers for a period of one
year each, if the Secretary determines that the State has provided
clear and convincing evidence that all eligible children with
disabilities throughout the State have, and will continue to have
throughout the one-year period of the waiver, FAPE available to them.

(Authority: 20 U.S.C. 1412(a)(18)(C), (19)(C)(ii) and (E))

Subpart F--State Administration

General

Sec. 300.600  Responsibility for all educational programs.

    (a) The SEA is responsible for ensuring--
    (1) That the requirements of this part are carried out; and
    (2) That each educational program for children with disabilities
administered within the State, including each program administered by
any other State or local agency--
    (i) Is under the general supervision of the persons responsible for
educational programs for children with disabilities in the SEA; and
    (ii) Meets the education standards of the SEA (including the
requirements of this part).
    (b) The State must comply with paragraph (a) of this section
through State statute, State regulation, signed agreement between
respective agency officials, or other documents.
    (c) Part B of the Act does not limit the responsibility of agencies
other than educational agencies for providing or paying some or all of
the costs of FAPE to children with disabilities in the State.
    (d) Notwithstanding paragraph (a) of this section, the Governor (or
another individual pursuant to State law) may assign to any public
agency in the State the responsibility of ensuring that the
requirements of Part B of the Act are met with respect to students with
disabilities who are convicted as adults under State law and
incarcerated in adult prisons.

(Authority: 20 U.S.C. 1412(a)(11))

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

    Part B of the Act may not be construed to permit a State to reduce
medical and other assistance available to children with disabilities,
or to alter the eligibility of a child with a disability, under title V
(Maternal and Child Health) or title XIX (Medicaid) of the Social
Security Act, to receive services that are also part of FAPE.

(Authority: 20 U.S.C. 1412(e))

Sec. 300.602  State-level activities.

    (a) Each State may retain not more than the amount described in
paragraph (b) of this section for administration in accordance with
Secs. 300.620 and 300.621 and other State-level activities in
accordance with Sec. 300.370.
    (b) For each fiscal year, the Secretary determines and reports to
the SEA an amount that is 25 percent of the amount the State received
under this section for fiscal year 1997, cumulatively adjusted by the
Secretary for each succeeding fiscal year by the lesser of--
    (1) The percentage increase, if any, from the preceding fiscal year
in the State's allocation under section 611 of the Act; or
    (2) The rate of inflation, as measured by the percentage increase,
if any, from the preceding fiscal year in the Consumer Price Index For
All Urban Consumers, published by the Bureau of Labor Statistics of the
Department of Labor.

(Authority: 20 U.S.C. 1411(f)(1)(A) and (B))

Use of Funds

Sec. 300.620  Use of funds for State administration.

    (a) For the purpose of administering Part B of the Act, including
section 619 of the Act (including the coordination of activities under
Part B of the Act with, and providing technical assistance to, other
programs that provide services to children with disabilities)--
    (1) Each State may use not more than twenty percent of the maximum
amount it may retain under Sec. 300.602(a) for any fiscal year or
$500,000 (adjusted by the cumulative rate of inflation since fiscal
year 1998, as measured by the percentage increase, if any, in the
Consumer Price Index For All Urban Consumers, published by the Bureau
of Labor Statistics of the Department of Labor), whichever is greater;
and
    (2) Each outlying area may use up to five percent of the amount it
receives under this section for any fiscal year or $35,000, whichever
is greater.
    (b) Funds described in paragraph (a) of this section may also be
used for the administration of Part C of the Act, if the SEA is the
lead agency for the State under that part.

(Authority: 20 U.S.C. 1411(f)(2))

Sec. 300.621  Allowable costs.

    (a) The SEA may use funds under Sec. 300.620 for--
    (1) Administration of State activities under Part B of the Act and
for planning at the State level, including planning, or assisting in
the planning, of programs or projects for the education of children
with disabilities;
    (2) Approval, supervision, monitoring, and evaluation of the
effectiveness of local programs and projects for the education of
children with disabilities;
    (3) Technical assistance to LEAs with respect to the requirements
of Part B of the Act;
    (4) Leadership services for the program supervision and management
of special education activities for children with disabilities; and
    (5) Other State leadership activities and consultative services.
    (b) The SEA shall use the remainder of its funds under Sec. 300.620
in accordance with Sec. 300.370.

(Authority: 20 U.S.C. 1411(f)(2))

Sec. 300.622  Subgrants to LEAs for capacity-building and improvement.

    In any fiscal year in which the percentage increase in the State's
allocation under 611 of the Act exceeds the rate of inflation (as
measured by the percentage increase, if any, from the preceding fiscal
year in the Consumer Price Index For All Urban Consumers, published by
the Bureau of Labor Statistics of the Department of Labor), each State
shall reserve, from its allocation under 611 of the Act, the amount
described in Sec. 300.623 to make subgrants to LEAs, unless that amount
is less than $100,000, to assist them in providing direct services and
in making systemic change to improve results for children with
disabilities through one or more of the following:
    (a) Direct services, including alternative programming for children
who have been expelled from school, and services for children in
correctional facilities, children enrolled in State-operated or State-
supported schools, and children in charter schools.
    (b) Addressing needs or carrying out improvement strategies
identified in the

[[Page 12464]]

State's Improvement Plan under subpart 1 of Part D of the Act.
    (c) Adopting promising practices, materials, and technology, based
on knowledge derived from education research and other sources.
    (d) Establishing, expanding, or implementing interagency agreements
and arrangements between LEAs and other agencies or organizations
concerning the provision of services to children with disabilities and
their families.
    (e) Increasing cooperative problem-solving between parents and
school personnel and promoting the use of alternative dispute
resolution.

(Authority: 20 U.S.C. 1411(f)(4)(A))

Sec. 300.623  Amount required for subgrants to LEAs.

    For each fiscal year, the amount referred to in Sec. 300.622 is--
    (a) The maximum amount the State was allowed to retain under
Sec. 300.602(a) for the prior fiscal year, or, for fiscal year 1998, 25
percent of the State's allocation for fiscal year 1997 under section
611; multiplied by
    (b) The difference between the percentage increase in the State's
allocation under this section and the rate of inflation, as measured by
the percentage increase, if any, from the preceding fiscal year in the
Consumer Price Index For All Urban Consumers, published by the Bureau
of Labor Statistics of the Department of Labor.

(Authority: 20 U.S.C. 1411(f)(4)(B))

Sec. 300.624  State discretion in awarding subgrants.

    The State may establish priorities in awarding subgrants under
Sec. 300.622 to LEAs competitively or on a targeted basis.

(Authority: 20 U.S.C. 1411(f)(4)(A))

State Advisory Panel

Sec. 300.650  Establishment of advisory panels.

    (a) Each State shall establish and maintain, in accordance with
Secs. 300.650-300.653, a State advisory panel on the education of
children with disabilities.
    (b) The advisory panel must be appointed by the Governor or any
other official authorized under State law to make those appointments.
    (c) If a State has an existing advisory panel that can perform the
functions in Sec. 300.652, the State may modify the existing panel so
that it fulfills all of the requirements of Secs. 300.650-300.653,
instead of establishing a new advisory panel.

(Authority: 20 U.S.C. 1412(a)(21)(A))

Sec. 300.651  Membership.

    (a) General. The membership of the State advisory panel must
consist of members appointed by the Governor, or any other official
authorized under State law to make these appointments, that is
representative of the State population and that is composed of
individuals involved in, or concerned with the education of children
with disabilities, including--
    (1) Parents of children with disabilities;
    (2) Individuals with disabilities;
    (3) Teachers;
    (4) Representatives of institutions of higher education that
prepare special education and related services personnel;
    (5) State and local education officials;
    (6) Administrators of programs for children with disabilities;
    (7) Representatives of other State agencies involved in the
financing or delivery of related services to children with
disabilities;
    (8) Representatives of private schools and public charter schools;
    (9) At least one representative of a vocational, community, or
business organization concerned with the provision of transition
services to children with disabilities; and
    (10) Representatives from the State juvenile and adult corrections
agencies.
    (b) Special rule. A majority of the members of the panel must be
individuals with disabilities or parents of children with disabilities.

(Authority: 20 U.S.C. 1412(a)(21)(B) and (C))

Sec. 300.652  Advisory panel functions.

    (a) General. The State advisory panel shall--
    (1) Advise the SEA of unmet needs within the State in the education
of children with disabilities;
    (2) Comment publicly on any rules or regulations proposed by the
State regarding the education of children with disabilities;
    (3) Advise the SEA in developing evaluations and reporting on data
to the Secretary under section 618 of the Act;
    (4) Advise the SEA in developing corrective action plans to address
findings identified in Federal monitoring reports under Part B of the
Act; and
    (5) Advise the SEA in developing and implementing policies relating
to the coordination of services for children with disabilities.
    (b) Advising on eligible students with disabilities in adult
prisons. The advisory panel also shall advise on the education of
eligible students with disabilities who have been convicted as adults
and incarcerated in adult prisons, even if, consistent with
Sec. 300.600(d), a State assigns general supervision responsibility for
those students to a public agency other than an SEA.

(Authority: 20 U.S.C. 1412(a)(21)(D))

Sec. 300.653  Advisory panel procedures.

    (a) The advisory panel shall meet as often as necessary to conduct
its business.
    (b) By July 1 of each year, the advisory panel shall submit an
annual report of panel activities and suggestions to the SEA. This
report must be made available to the public in a manner consistent with
other public reporting requirements of Part B of the Act.
    (c) Official minutes must be kept on all panel meetings and must be
made available to the public on request.
    (d) All advisory panel meetings and agenda items must be announced
enough in advance of the meeting to afford interested parties a
reasonable opportunity to attend. Meetings must be open to the public.
    (e) Interpreters and other necessary services must be provided at
panel meetings for panel members or participants. The State may pay for
these services from funds under Sec. 300.620.
    (f) The advisory panel shall serve without compensation but the
State must reimburse the panel for reasonable and necessary expenses
for attending meetings and performing duties. The State may use funds
under Sec. 300.620 for this purpose.

(Authority: 20 U.S.C. 1412(a)(21))

State Complaint Procedures

Sec. 300.660  Adoption of State complaint procedures.

    (a) General. Each SEA shall adopt written procedures for--
    (1) Resolving any complaint, including a complaint filed by an
organization or individual from another State, that meets the
requirements of Sec. 300.662 by--
    (i) Providing for the filing of a complaint with the SEA; and
    (ii) At the SEA's discretion, providing for the filing of a
complaint with a public agency and the right to have the SEA review the
public agency's decision on the complaint; and
    (2) Widely disseminating to parents and other interested
individuals, including parent training and information centers,
protection and advocacy agencies, independent living centers, and other
appropriate entities, the State's procedures under Secs. 300.660-
300.662.
    (b) Remedies for denial of appropriate services. In resolving a
complaint in

[[Page 12465]]

which it has found a failure to provide appropriate services, an SEA,
pursuant to its general supervisory authority under Part B of the Act,
must address:
    (1) How to remediate the denial of those services, including, as
appropriate, the awarding of monetary reimbursement or other corrective
action appropriate to the needs of the child; and
    (2) Appropriate future provision of services for all children with
disabilities.

(Authority: 20 U.S.C. 1221e-3)

Sec. 300.661  Minimum State complaint procedures.

    (a) Time limit; minimum procedures. Each SEA shall include in its
complaint procedures a time limit of 60 days after a complaint is filed
under Sec. 300.660(a) to--
    (1) Carry out an independent on-site investigation, if the SEA
determines that an investigation is necessary;
    (2) Give the complainant the opportunity to submit additional
information, either orally or in writing, about the allegations in the
complaint;
    (3) Review all relevant information and make an independent
determination as to whether the public agency is violating a
requirement of Part B of the Act or of this part; and
    (4) Issue a written decision to the complainant that addresses each
allegation in the complaint and contains--
    (i) Findings of fact and conclusions; and
    (ii) The reasons for the SEA's final decision.
    (b) Time extension; final decision; implementation. The SEA's
procedures described in paragraph (a) of this section also must--
    (1) Permit an extension of the time limit under paragraph (a) of
this section only if exceptional circumstances exist with respect to a
particular complaint; and
    (2) Include procedures for effective implementation of the SEA's
final decision, if needed, including--
    (i) Technical assistance activities;
    (ii) Negotiations; and
    (iii) Corrective actions to achieve compliance.
    (c) Complaints filed under this section, and due process hearings
under Secs. 300.507 and 300.520-300.528. (1) If a written complaint is
received that is also the subject of a due process hearing under
Sec. 300.507 or Secs. 300.520-300.528, or contains multiple issues, of
which one or more are part of that hearing, the State must set aside
any part of the complaint that is being addressed in the due process
hearing, until the conclusion of the hearing. However, any issue in the
complaint that is not a part of the due process action must be resolved
using the time limit and procedures described in paragraphs (a) and (b)
of this section.
    (2) If an issue is raised in a complaint filed under this section
that has previously been decided in a due process hearing involving the
same parties--
    (i) The hearing decision is binding; and
    (ii) The SEA must inform the complainant to that effect.
    (3) A complaint alleging a public agency's failure to implement a
due process decision must be resolved by the SEA.

(Authority: 20 U.S.C. 1221e-3)

Sec. 300.662  Filing a complaint.

    (a) An organization or individual may file a signed written
complaint under the procedures described in Secs. 300.660-300.661.
    (b) The complaint must include--
    (1) A statement that a public agency has violated a requirement of
Part B of the Act or of this part; and
    (2) The facts on which the statement is based.
    (c) The complaint must allege a violation that occurred not more
than one year prior to the date that the complaint is received in
accordance with Sec. 300.660(a) unless a longer period is reasonable
because the violation is continuing, or the complainant is requesting
compensatory services for a violation that occurred not more than three
years prior to the date the complaint is received under
Sec. 300.660(a).

(Authority: 20 U.S.C. 1221e-3)

Subpart G--Allocation of Funds; Reports

Allocations

Sec. 300.700  Special definition of the term ``State''.

    For the purposes of Secs. 300.701, and 300.703-300.714, the term
State means each of the 50 States, the District of Columbia, and the
Commonwealth of Puerto Rico.

(Authority: 20 U.S.C. 1411(h)(2))

Sec. 300.701  Grants to States.

    (a) Purpose of grants. The Secretary makes grants to States and the
outlying areas and provides funds to the Secretary of the Interior, to
assist them to provide special education and related services to
children with disabilities in accordance with Part B of the Act.
    (b) Maximum amounts. The maximum amount of the grant a State may
receive under section 611 of the Act for any fiscal year is--
    (1) The number of children with disabilities in the State who are
receiving special education and related services--
    (i) Aged 3 through 5 if the State is eligible for a grant under
section 619 of the Act; and
    (ii) Aged 6 through 21; multiplied by--
    (2) Forty (40) percent of the average per-pupil expenditure in
public elementary and secondary schools in the United States.

(Authority: 20 U.S.C. 1411(a))

Sec. 300.702  Definition.

    For the purposes of this section the term average per-pupil
expenditure in public elementary and secondary schools in the United
States means--
    (a) Without regard to the source of funds--
    (1) The aggregate current expenditures, during the second fiscal
year preceding the fiscal year for which the determination is made (or,
if satisfactory data for that year are not available, during the most
recent preceding fiscal year for which satisfactory data are available)
of all LEAs in the 50 States and the District of Columbia); plus
    (2) Any direct expenditures by the State for the operation of those
agencies; divided by
    (b) The aggregate number of children in average daily attendance to
whom those agencies provided free public education during that
preceding year.

(Authority: 20 U.S.C. 1411(h)(1))

Sec. 300.703  Allocations to States.

    (a) General. After reserving funds for studies and evaluations
under section 674(e) of the Act, and for payments to the outlying
areas, the freely associated States, and the Secretary of the Interior
under Secs. 300.715 and 300.717-300.719, the Secretary allocates the
remaining amount among the States in accordance with paragraph (b) of
this section and Secs. 300.706-300.709.
    (b) Interim formula. Except as provided in Secs. 300.706-300.709,
the Secretary allocates the amount described in paragraph (a) of this
section among the States in accordance with section 611(a)(3), (4), (5)
and (b)(1), (2) and (3) of the Act, as in effect prior to June 4, 1997,
except that the determination of the number of children with
disabilities receiving special education and related services under
section 611(a)(3) of the Act (as then in effect) may be calculated as
of December 1, or, at the State's discretion, the last

[[Page 12466]]

Friday in October, of the fiscal year for which the funds were
appropriated.

(Authority: 20 U.S.C. 1411(d))

Secs. 300.704-300.705  [Reserved]

Sec. 300.706  Permanent formula.

    (a) Establishment of base year. The Secretary allocates the amount
described in Sec. 300.703(a) among the States in accordance with
Secs. 300.706-300.709 for each fiscal year beginning with the first
fiscal year for which the amount appropriated under 611(j) of the Act
is more than $4,924,672,200.
    (b) Use of base year. (1) Definition. As used in this section, the
term base year means the fiscal year preceding the first fiscal year in
which this section applies.
    (2) Special rule for use of base year amount. If a State received
any funds under section 611 of the Act for the base year on the basis
of children aged 3 through 5, but does not make FAPE available to all
children with disabilities aged 3 through 5 in the State in any
subsequent fiscal year, the Secretary computes the State's base year
amount, solely for the purpose of calculating the State's allocation in
that subsequent year under Secs. 300.707-300.709, by subtracting the
amount allocated to the State for the base year on the basis of those
children.

(Authority: 20 U.S.C. 1411(e)(1) and (2))

Sec. 300.707  Increase in funds.

    If the amount available for allocations to States under
Sec. 300.706 is equal to or greater than the amount allocated to the
States under section 611 of the Act for the preceding fiscal year,
those allocations are calculated as follows:
    (a) Except as provided in Sec. 300.708, the Secretary--
    (1) Allocates to each State the amount it received for the base
year;
    (2) Allocates 85 percent of any remaining funds to States on the
basis of their relative populations of children aged 3 through 21 who
are of the same age as children with disabilities for whom the State
ensures the availability of FAPE under Part B of the Act; and
    (3) Allocates 15 percent of those remaining funds to States on the
basis of their relative populations of children described in paragraph
(a)(2) of this section who are living in poverty.
    (b) For the purpose of making grants under this section, the
Secretary uses the most recent population data, including data on
children living in poverty, that are available and satisfactory to the
Secretary.

(Authority: 20 U.S.C. 1411(e)(3))

Sec. 300.708  Limitation.

    (a) Allocations under Sec. 300.707 are subject to the following:
    (1) No State's allocation may be less than its allocation for the
preceding fiscal year.
    (2) No State's allocation may be less than the greatest of--
    (i) The sum of--
    (A) The amount it received for the base year; and
    (B) One-third of one percent of the amount by which the amount
appropriated under section 611(j) of the Act exceeds the amount
appropriated under section 611 of the Act for the base year; or
    (ii) The sum of--
    (A) The amount it received for the preceding fiscal year; and
    (B) That amount multiplied by the percentage by which the increase
in the funds appropriated from the preceding fiscal year exceeds 1.5
percent; or
    (iii) The sum of--
    (A) The amount it received for the preceding fiscal year; and
    (B) That amount multiplied by 90 percent of the percentage increase
in the amount appropriated from the preceding fiscal year.
    (b) Notwithstanding paragraph (a)(2) of this section, no State's
allocation under Sec. 300.707 may exceed the sum of--
    (1) The amount it received for the preceding fiscal year; and
    (2) That amount multiplied by the sum of 1.5 percent and the
percentage increase in the amount appropriated.
    (c) If the amount available for allocations to States under
Sec. 300.703 and paragraphs (a) and (b) of this section is insufficient
to pay those allocations in full those allocations are ratably reduced,
subject to paragraph (a)(1) of this section.

(Authority: 20 U.S.C. 1411(e)(3)(B) and (C))

Sec. 300.709  Decrease in funds.

    If the amount available for allocations to States under
Sec. 300.706 is less than the amount allocated to the States under
section 611 of the Act for the preceding fiscal year, those allocations
are calculated as follows:
    (a) If the amount available for allocations is greater than the
amount allocated to the States for the base year, each State is
allocated the sum of--
    (1) The amount it received for the base year; and
    (2) An amount that bears the same relation to any remaining funds
as the increase the State received for the preceding fiscal year over
the base year bears to the total of those increases for all States.
    (b)(1) If the amount available for allocations is equal to or less
than the amount allocated to the States for the base year, each State
is allocated the amount it received for the base year.
    (2) If the amount available is insufficient to make the allocations
described in paragraph (b)(1) of this section, those allocations are
ratably reduced.

(Authority: 20 U.S.C. 1411(e)(4))

Sec. 300.710  Allocation for State in which by-pass is implemented for
private school children with disabilities.

    In determining the allocation under Secs. 300.700-300.709 of a
State in which the Secretary will implement a by-pass for private
school children with disabilities under Secs. 300.451-300.487, the
Secretary includes in the State's child count--
    (a) For the first year of a by-pass, the actual or estimated number
of private school children with disabilities (as defined in
Secs. 300.7(a) and 300.450) in the State, as of the preceding December
1; and
    (b) For succeeding years of a by-pass, the number of private school
children with disabilities who received special education and related
services under the by-pass in the preceding year.

(Authority: 20 U.S.C. 1412(f)(2))

Sec. 300.711  Subgrants to LEAs.

    Each State that receives a grant under section 611 of the Act for
any fiscal year shall distribute in accordance with Sec. 300.712 any
funds it does not retain under Sec. 300.602 and is not required to
distribute under Secs. 300.622 and 300.623 to LEAs in the State that
have established their eligibility under section 613 of the Act, and to
State agencies that received funds under section 614A(a) of the Act for
fiscal year 1997, as then in effect, and have established their
eligibility under section 613 of the Act, for use in accordance with
Part B of the Act.

(Authority: 20 U.S.C. 1411(g)(1))

Sec. 300.712  Allocations to LEAs.

    (a) Interim procedure. For each fiscal year for which funds are
allocated to States under Sec. 300.703(b) each State shall allocate
funds under Sec. 300.711 in accordance with section 611(d) of the Act,
as in effect prior to June 4, 1997.
    (b) Permanent procedure. For each fiscal year for which funds are
allocated to States under Secs. 300.706-300.709, each State shall
allocate funds under Sec. 300.711 as follows:
    (1) Base payments. The State first shall award each agency
described in Sec. 300.711 the amount that agency would have received
under this section for the

[[Page 12467]]

base year, as defined in Sec. 300.706(b)(1), if the State had
distributed 75 percent of its grant for that year under section
Sec. 300.703(b).
    (2) Base payment adjustments. For any fiscal year after the base
year fiscal year--
    (i) If a new LEA is created, the State shall divide the base
allocation determined under paragraph (b)(1) of this section for the
LEAs that would have been responsible for serving children with
disabilities now being served by the new LEA, among the new LEA and
affected LEAs based on the relative numbers of children with
disabilities ages 3 through 21, or ages 6 through 21 if a State has had
its payment reduced under Sec. 300.706(b)(2), currently provided
special education by each of the LEAs;
    (ii) If one or more LEAs are combined into a single new LEA, the
State shall combine the base allocations of the merged LEAs; and
    (iii) If, for two or more LEAs, geographic boundaries or
administrative responsibility for providing services to children with
disabilities ages 3 through 21 change, the base allocations of affected
LEAs shall be redistributed among affected LEAs based on the relative
numbers of children with disabilities ages 3 through 21, or ages 6
through 21 if a State has had its payment reduced under
Sec. 300.706(b)(2), currently provided special education by each
affected LEA.
    (3) Allocation of remaining funds. The State then shall--
    (i) Allocate 85 percent of any remaining funds to those agencies on
the basis of the relative numbers of children enrolled in public and
private elementary and secondary schools within each agency's
jurisdiction; and
    (ii) Allocate 15 percent of those remaining funds to those agencies
in accordance with their relative numbers of children living in
poverty, as determined by the SEA.
    (iii) For the purposes of making grants under this section, States
must apply on a uniform basis across all LEAs the best data that are
available to them on the numbers of children enrolled in public and
private elementary and secondary schools and the numbers of children
living in poverty.

(Authority: 20 U.S.C. 1411(g)(2))

Sec. 300.713  Former Chapter 1 State agencies.

    (a) To the extent necessary, the State--
    (1) Shall use funds that are available under Sec. 300.602(a) to
ensure that each State agency that received fiscal year 1994 funds
under subpart 2 of Part D of chapter 1 of title I of the Elementary and
Secondary Education Act of 1965 (as in effect in fiscal year 1994)
receives, from the combination of funds under Sec. 300.602(a) and funds
provided under Sec. 300.711, an amount no less than--
    (i) The number of children with disabilities, aged 6 through 21, to
whom the agency was providing special education and related services on
December 1, or, at the State's discretion, the last Friday in October,
of the fiscal year for which the funds were appropriated, subject to
the limitation in paragraph (b) of this section; multiplied by
    (ii) The per-child amount provided under that subpart for fiscal
year 1994; and
    (2) May use funds under Sec. 300.602(a) to ensure that each LEA
that received fiscal year 1994 funds under that subpart for children
who had transferred from a State-operated or State-supported school or
program assisted under that subpart receives, from the combination of
funds available under Sec. 300.602(a) and funds provided under
Sec. 300.711, an amount for each child, aged 3 through 21 to whom the
agency was providing special education and related services on December
1, or, at the State's discretion, the last Friday in October, of the
fiscal year for which the funds were appropriated, equal to the per-
child amount the agency received under that subpart for fiscal year
1994.
    (b) The number of children counted under paragraph (a)(1)(i) of
this section may not exceed the number of children aged 3 through 21
for whom the agency received fiscal year 1994 funds under subpart 2 of
Part D of chapter 1 of title I of the Elementary and Secondary
Education Act of 1965 (as in effect in fiscal year 1994).

(Authority: 20 U.S.C. 1411(g)(3))

Sec. 300.714  Reallocation of LEA funds.

    If an SEA determines that an LEA is adequately providing FAPE to
all children with disabilities residing in the area served by that
agency with State and local funds, the SEA may reallocate any portion
of the funds under Part B of the Act that are not needed by that local
agency to provide FAPE to other LEAs in the State that are not
adequately providing special education and related services to all
children with disabilities residing in the areas they serve.

(Authority: 20 U.S.C. 1411(g)(4))

Sec. 300.715  Payments to the Secretary of the Interior for the
education of Indian children.

    (a) Reserved amounts for Secretary of Interior. From the amount
appropriated for any fiscal year under 611(j) of the Act, the Secretary
reserves 1.226 percent to provide assistance to the Secretary of the
Interior in accordance with this section and Sec. 300.716.
    (b) Provision of amounts for assistance. The Secretary provides
amounts to the Secretary of the Interior to meet the need for
assistance for the education of children with disabilities on
reservations aged 5 to 21, inclusive, enrolled in elementary and
secondary schools for Indian children operated or funded by the
Secretary of the Interior. The amount of the payment for any fiscal
year is equal to 80 percent of the amount allotted under paragraph (a)
of this section for that fiscal year.
    (c) Calculation of number of children. In the case of Indian
students aged 3 to 5, inclusive, who are enrolled in programs
affiliated with the Bureau of Indian Affairs (BIA) schools and that are
required by the States in which these schools are located to attain or
maintain State accreditation, and which schools have this accreditation
prior to the date of enactment of the Individuals with Disabilities
Education Act Amendments of 1991, the school may count those children
for the purpose of distribution of the funds provided under this
section to the Secretary of the Interior.
    (d) Responsibility for meeting the requirements of Part B. The
Secretary of the Interior shall meet all of the requirements of Part B
of the Act for the children described in paragraphs (b) and (c) of this
section, in accordance with Sec. 300.260.

(Authority: 20 U.S.C. 1411(c); 1411(i)(1)(A) and (B))

Sec. 300.716  Payments for education and services for Indian children
with disabilities aged 3 through 5.

    (a) General. With funds appropriated under 611(j) of the Act, the
Secretary makes payments to the Secretary of the Interior to be
distributed to tribes or tribal organizations (as defined under section
4 of the Indian Self-Determination and Education Assistance Act) or
consortia of those tribes or tribal organizations to provide for the
coordination of assistance for special education and related services
for children with disabilities aged 3 through 5 on reservations served
by elementary and secondary schools for Indian children operated or
funded by the Department of the Interior. The amount of the payments
under paragraph (b) of this section for any fiscal year is equal to 20
percent of the amount allotted under Sec. 300.715(a).
    (b) Distribution of funds. The Secretary of the Interior shall
distribute the total amount of the payment under

[[Page 12468]]

paragraph (a) of this section by allocating to each tribe or tribal
organization an amount based on the number of children with
disabilities ages 3 through 5 residing on reservations as reported
annually, divided by the total of those children served by all tribes
or tribal organizations.
    (c) Submission of information. To receive a payment under this
section, the tribe or tribal organization shall submit the figures to
the Secretary of the Interior as required to determine the amounts to
be allocated under paragraph (b) of this section. This information must
be compiled and submitted to the Secretary.
    (d) Use of funds. (1) The funds received by a tribe or tribal
organization must be used to assist in child find, screening, and other
procedures for the early identification of children aged 3 through 5,
parent training, and the provision of direct services. These activities
may be carried out directly or through contracts or cooperative
agreements with the BIA, LEAs, and other public or private nonprofit
organizations. The tribe or tribal organization is encouraged to
involve Indian parents in the development and implementation of these
activities.
    (2) The entities shall, as appropriate, make referrals to local,
State, or Federal entities for the provision of services or further
diagnosis.
    (e) Biennial report. To be eligible to receive a grant pursuant to
paragraph (a) of this section, the tribe or tribal organization shall
provide to the Secretary of the Interior a biennial report of
activities undertaken under this paragraph, including the number of
contracts and cooperative agreements entered into, the number of
children contacted and receiving services for each year, and the
estimated number of children needing services during the two years
following the one in which the report is made. The Secretary of the
Interior shall include a summary of this information on a biennial
basis in the report to the Secretary required under section 611(i) of
the Act. The Secretary may require any additional information from the
Secretary of the Interior.
    (f) Prohibitions. None of the funds allocated under this section
may be used by the Secretary of the Interior for administrative
purposes, including child count and the provision of technical
assistance.

(Authority: 20 U.S.C. 1411(i)(3))

Sec. 300.717  Outlying areas and freely associated States.

    From the amount appropriated for any fiscal year under section
611(j) of the Act, the Secretary reserves not more than one percent,
which must be used--
    (a) To provide assistance to the outlying areas in accordance with
their respective populations of individuals aged 3 through 21; and
    (b) For fiscal years 1998 through 2001, to carry out the
competition described in Sec. 300.719, except that the amount reserved
to carry out that competition may not exceed the amount reserved for
fiscal year 1996 for the competition under Part B of the Act described
under the heading ``SPECIAL EDUCATION'' in Public Law 104-134.

(Authority: 20 U.S.C. 1411(b)(1))

Sec. 300.718  Outlying area--definition.

    As used in this part, the term outlying area means the United
States Virgin Islands, Guam, American Samoa, and the Commonwealth of
the Northern Mariana Islands.

(Authority: 20 U.S.C. 1402(18))

Sec. 300.719  Limitation for freely associated States.

    (a) Competitive grants. The Secretary uses funds described in
Sec. 300.717(b) to award grants, on a competitive basis, to Guam,
American Samoa, the Commonwealth of the Northern Mariana Islands, and
the freely associated States to carry out the purposes of this part.
    (b) Award basis. The Secretary awards grants under paragraph (a) of
this section on a competitive basis, pursuant to the recommendations of
the Pacific Region Educational Laboratory in Honolulu, Hawaii. Those
recommendations must be made by experts in the field of special
education and related services.
    (c) Assistance requirements. Any freely associated State that
wishes to receive funds under Part B of the Act shall include, in its
application for assistance--
    (1) Information demonstrating that it will meet all conditions that
apply to States under Part B of the Act;
    (2) An assurance that, notwithstanding any other provision of Part
B of the Act, it will use those funds only for the direct provision of
special education and related services to children with disabilities
and to enhance its capacity to make FAPE available to all children with
disabilities;
    (3) The identity of the source and amount of funds, in addition to
funds under Part B of the Act, that it will make available to ensure
that FAPE is available to all children with disabilities within its
jurisdiction; and
    (4) Such other information and assurances as the Secretary may
require.
    (d) Termination of eligibility. Notwithstanding any other provision
of law, the freely associated States may not receive any funds under
Part B of the Act for any program year that begins after September 30,
2001.
    (e) Administrative costs. The Secretary may provide not more than
five percent of the amount reserved for grants under this section to
pay the administrative costs of the Pacific Region Educational
Laboratory under paragraph (b) of this section.
    (f) Eligibility for award. An outlying area is not eligible for a
competitive award under Sec. 300.719 unless it receives assistance
under Sec. 300.717(a).

(Authority: 20 U.S.C. 1411(b)(2) and (3))

Sec. 300.720  Special rule.

    The provisions of Public Law 95-134, permitting the consolidation
of grants by the outlying areas, do not apply to funds provided to
those areas or to the freely associated States under Part B of the Act.

(Authority: 20 U.S.C. 1411(b)(4))

Sec. 300.721  [Reserved]

Sec. 300.722  Definition.

    As used in this part, the term freely associated States means the
Republic of the Marshall Islands, the Federated States of Micronesia,
and the Republic of Palau.

(Authority: 20 U.S.C. 1411(b)(6))

Reports

Sec. 300.750  Annual report of children served--report requirement.

    (a) The SEA shall report to the Secretary no later than February 1
of each year the number of children with disabilities aged 3 through 21
residing in the State who are receiving special education and related
services.
    (b) The SEA shall submit the report on forms provided by the
Secretary.

(Authority: 20 U.S.C. 1411(d)(2); 1418(a))

Sec. 300.751  Annual report of children served--information required in
the report.

    (a) For any year the SEA shall include in its report a table that
shows the number of children with disabilities receiving special
education and related services on December 1, or at the State's
discretion on the last Friday in October, of that school year--
    (1) Aged 3 through 5;
    (2) Aged 6 through 17; and
    (3) Aged 18 through 21.
    (b) For the purpose of this part, a child's age is the child's
actual age on the date of the child count: December 1, or, at the
State's discretion, the last Friday in October.

[[Page 12469]]

    (c) Reports must also include the number of those children with
disabilities aged 3 through 21 for each year of age (3, 4, 5, etc.)
within each disability category, as defined in the definition of
``children with disabilities'' in Sec. 300.7; and
    (d) The Secretary may permit the collection of the data in
paragraph (c) of this section through sampling.
    (e) The SEA may not report a child under paragraph (c) of this
section under more than one disability category.
    (f) If a child with a disability has more than one disability, the
SEA shall report that child under paragraph (c) of this section in
accordance with the following procedure:
    (1) If a child has only two disabilities and those disabilities are
deafness and blindness, and the child is not reported as having a
developmental delay, that child must be reported under the category
``deaf-blindness''.
    (2) A child who has more than one disability and is not reported as
having deaf-blindness or as having a developmental delay must be
reported under the category ``multiple disabilities''.

(Authority: 20 U.S.C. 1411(d)(2); 1418(a) and (b))

Sec. 300.752  Annual report of children served--certification.

    The SEA shall include in its report a certification signed by an
authorized official of the agency that the information provided under
Sec. 300.751(a) is an accurate and unduplicated count of children with
disabilities receiving special education and related services on the
dates in question.

(Authority: 20 U.S.C. 1411(d)(2); 1417(b))

Sec. 300.753  Annual report of children served--criteria for counting
children.

    (a) The SEA may include in its report children with disabilities
who are enrolled in a school or program that is operated or supported
by a public agency, and that--
    (1) Provides them with both special education and related services
that meet State standards;
    (2) Provides them only with special education, if a related service
is not required, that meets State standards; or
    (3) In the case of children with disabilities enrolled by their
parents in private schools, provides them with special education or
related services under Secs. 300.452-300.462 that meet State standards.
    (b) The SEA may not include children with disabilities in its
report who are receiving special education funded solely by the Federal
Government, including children served by the Department of Interior,
the Department of Defense, or the Department of Education. However, the
State may count children covered under Sec. 300.184(c)(2).

(Authority: 20 U.S.C. 1411(d)(2); 1417(b))

Sec. 300.754  Annual report of children served--other responsibilities
of the SEA.

    In addition to meeting the other requirements of Secs. 300.750-
300.753, the SEA shall--
    (a) Establish procedures to be used by LEAs and other educational
institutions in counting the number of children with disabilities
receiving special education and related services;
    (b) Set dates by which those agencies and institutions must report
to the SEA to ensure that the State complies with Sec. 300.750(a);
    (c) Obtain certification from each agency and institution that an
unduplicated and accurate count has been made;
    (d) Aggregate the data from the count obtained from each agency and
institution, and prepare the reports required under Secs. 300.750-
300.753; and
    (e) Ensure that documentation is maintained that enables the State
and the Secretary to audit the accuracy of the count.

(Authority: 20 U.S.C. 1411(d)(2); 1417(b))

Sec. 300.755  Disproportionality.

    (a) General. Each State that receives assistance under Part B of
the Act, and the Secretary of the Interior, shall provide for the
collection and examination of data to determine if significant
disproportionality based on race is occurring in the State or in the
schools operated by the Secretary of the Interior with respect to--
    (1) The identification of children as children with disabilities,
including the identification of children as children with disabilities
in accordance with a particular impairment described in section 602(3)
of the Act; and
    (2) The placement in particular educational settings of these
children.
    (b) Review and revision of policies, practices, and procedures. In
the case of a determination of significant disproportionality with
respect to the identification of children as children with
disabilities, or the placement in particular educational settings of
these children, in accordance with paragraph (a) of this section, the
State or the Secretary of the Interior shall provide for the review
and, if appropriate revision of the policies, procedures, and practices
used in the identification or placement to ensure that the policies,
procedures, and practices comply with the requirements of Part B of the
Act.

(Authority: 20 U.S.C. 1418(c))

Sec. 300.756  Acquisition of equipment; construction or alteration of
facilities.

    (a) General. If the Secretary determines that a program authorized
under Part B of the Act would be improved by permitting program funds
to be used to acquire appropriate equipment, or to construct new
facilities or alter existing facilities, the Secretary may allow the
use of those funds for those purposes.
    (b) Compliance with certain regulations. Any construction of new
facilities or alteration of existing facilities under paragraph (a) of
this section must comply with the requirements of--
    (1) Appendix A of part 36 of title 28, Code of Federal Regulations
(commonly known as the ``Americans with Disabilities Accessibility
Guidelines for Buildings and Facilities''); or
    (2) Appendix A of part 101-19.6 of title 41, Code of Federal
Regulations (commonly known as the ``Uniform Federal Accessibility
Standards'').

(Authority: 20 U.S.C. 1405)

Appendix A to Part 300--Notice of Interpretation

I. Involvement and Progress of Each Child With a Disability in the
General Curriculum

    1. What are the major Part B IEP requirements that govern the
involvement and progress of children with disabilities in the
general curriculum?
    2. Must a child's IEP address his or her involvement in the
general curriculum, regardless of the nature and severity of the
child's disability and the setting in which the child is educated?
    3. What must public agencies do to meet the requirements at
Secs. 300.344(a)(2) and 300.346(d) regarding the participation of a
``regular education teacher'' in the development review, and
revision of the IEPs, for children age 3 through 5 who are receiving
special education and related services?
    4. Must the measurable annual goals in a child's IEP address all
areas of the general curriculum, or only those areas in which the
child's involvement and progress are affected by the child's
disability?

II. Involvement of Parents and Students

    5. What is the role of the parents, including surrogate parents,
in decisions regarding the educational program of their children?
    6. What are the Part B requirements regarding the participation
of a student (child) with a disability in an IEP meeting?
    7. Must the public agency inform the parents of who will be at
the IEP meeting?
    8. Do parents have the right to a copy of their child's IEP?
    9. What is a public agency's responsibility if it is not
possible to reach consensus on what services should be included in a
child's IEP?

[[Page 12470]]

    10. Does Part B require that public agencies inform parents
regarding the educational progress of their children with
disabilities?

III. Preparing Students With Disabilities for Employment and Other
Post-School Experiences

    11. What must the IEP team do to meet the requirements that the
IEP include a statement of ``transition service needs'' beginning at
age 14 (Sec. 300.347(b)(1), and a statement of ``needed transition
services'' beginning at age 16 (Sec. 300.347(b)(2)?
    12. Must the IEP for each student with a disability, beginning
no later than age 16, include all ``needed transition services,'' as
identified by the IEP team and consistent with the definition at
Sec. 300.29, even if an agency other than the public agency will
provide those services? What is the public agency's responsibility
if another agency fails to provide agreed-upon transition services?
    13. Under what circumstances must a public agency invite
representatives from other agencies to an IEP meeting at which a
child's need for transition services will be considered?

IV. Other Questions Regarding Implementation of Idea

    14. For a child with a disability receiving special education
for the first time, when must an IEP be developed--before placement
or after placement?
    15. Who is responsible for ensuring the development of IEPs for
children with disabilities served by a public agency other than an
LEA?
    16. For a child placed out of State by an educational or non-
educational State or local agency, is the placing or receiving State
responsible for the child's IEP?
    17. If a disabled child has been receiving special education
from one public agency and transfers to another public agency in the
same State, must the new public agency develop an IEP before the
child can be placed in a special education program?
    18. What timelines apply to the development and implementation
of an initial IEP for a child with a disability?
    19. Must a public agency hold separate meetings to determine a
child's eligibility for special education and related services,
develop the child's IEP, and determine the child's placement, or may
the agency meet all of these requirements in a single meeting?
    20. How frequently must a public agency conduct meetings to
review, and if appropriate revise, the IEP for each child with a
disability?
    21. May IEP meetings be audio or video-tape-recorded?
    22. Who can serve as the representative of the public agency at
an IEP meeting?
    23. For a child with a disability being considered for initial
placement in special education, which teacher or teachers should
attend the IEP meeting?
    24. What is the role of a regular education teacher in the
development, review, and revision of the IEP for a child who is, or
may be, participating in the regular education environment?
    25. If a child with a disability attends several regular
classes, must all of the child's regular education teachers be
members of the child's IEP team?
    26. How should a public agency determine which regular education
teacher and special education teacher will members of the IEP team
for a particular child with a disability?
    27. For a child whose primary disability is a speech impairment,
may a public agency meet its responsibility under Sec. 300.344(a)(3)
to ensure that the IEP team includes ``at least one special
education teacher, or, if appropriate, at least one special
education provider of the child'' by including a speech-language
pathologist on the IEP team?
    28. Do public agencies and parents have the option of having any
individual of their choice attend a child's IEP meeting as
participants on their child's IEP team?
    29. Can parents or public agencies bring their attorneys to IEP
meetings, and, if so under what circumstances? Are attorney's fees
available for parents' attorneys if the parents are prevailing
parties in actions or proceedings brought under Part B?
    30. Must related services personnel attend IEP meetings?
    31. Must the public agency ensure that all services specified in
a child's IEP are provided?
    32. Is it permissible for an agency to have the IEP completed
before the IEP meeting begins?
    33. Must a public agency include transportation in a child's IEP
as a related service?
    34. Must a public agency provide related services that are
required to assist a child with a disability to benefit from special
education, whether or not those services are included in the list of
related services in Sec. 300.24?
    35. Must the IEP specify the amount of services or may it simply
list the services to be provided?
    36. Under what circumstances is a public agency required to
permit a child with a disability to use a school-purchased assistive
technology device in the child's home or in another setting?
    37. Can the IEP team also function as the group making the
placement decision for a child with a disability?
    38. If a child's IEP includes behavioral strategies to address a
particular behavior, can a child ever be suspended for engaging in
that behavior?
    39. If a child's behavior in the regular classroom, even with
appropriate interventions, would significantly impair the learning
of others, can the group that makes the placement decision determine
that placement in the regular classroom is inappropriate for that
child?
    40. May school personnel during a school year implement more
than one short-term removal of a child with disabilities from his or
her classroom or school for misconduct?
    Authority: Part B of the Individuals with Disabilities Education
Act (20 U.S.C. 1401, et seq.), unless otherwise noted.

Individualized Education Programs (IEPS) and Other Selected
ImplementatioN Issues

    Interpretation of IEP and Other selected Requirements under Part
B of the Individuals with Disabilities Education Act (IDEA; Part B)

Introduction

    The IEP requirements under Part B of the IDEA emphasize the
importance of three core concepts: (1) the involvement and progress
of each child with a disability in the general curriculum including
addressing the unique needs that arise out of the child's
disability; (2) the involvement of parents and students, together
with regular and special education personnel, in making individual
decisions to support each student's (child's) educational success,
and (3) the preparation of students with disabilities for employment
and other post-school activities.
    The first three sections of this Appendix (I-III) provide
guidance regarding the IEP requirements as they relate to the three
core concepts described above. Section IV addresses other questions
regarding the development and content of IEPs, including questions
about the timelines and responsibility for developing and
implementing IEPs, participation in IEP meetings, and IEP content.
Section IV also addresses questions on other selected requirements
under IDEA.

I. Involvement and Progress of Each Child With a Disability in the
General Curriculum

    In enacting the IDEA Amendments of 1997, the Congress found that
research, demonstration, and practice over the past 20 years in
special education and related disciplines have demonstrated that an
effective educational system now and in the future must maintain
high academic standards and clear performance goals for children
with disabilities, consistent with the standards and expectations
for all students in the educational system, and provide for
appropriate and effective strategies and methods to ensure that
students who are children with disabilities have maximum
opportunities to achieve those standards and goals. [Section
651(a)(6)(A) of the Act.]
    Accordingly, the evaluation and IEP provisions of Part B place
great emphasis on the involvement and progress of children with
disabilities in the general curriculum. (The term ``general
curriculum,'' as used in these regulations, including this Appendix,
refers to the curriculum that is used with nondisabled children.)
    While the Act and regulations recognize that IEP teams must make
individualized decisions about the special education and related
services, and supplementary aids and services, provided to each
child with a disability, they are driven by IDEA's strong preference
that, to the maximum extent appropriate, children with disabilities
be educated in regular classes with their nondisabled peers with
appropriate supplementary aids and services.
    In many cases, children with disabilities will need appropriate
supports in order to successfully progress in the general
curriculum, participate in State and district-wide assessment
programs, achieve the measurable goals in their IEPs, and be
educated together with their nondisabled peers. Accordingly, the Act
requires the IEP team to determine, and the public agency to

[[Page 12471]]

provide, the accommodations, modifications, supports, and
supplementary aids and services, needed by each child with a
disability to successfully be involved in and progress in the
general curriculum achieve the goals of the IEP, and successfully
demonstrate his or her competencies in State and district-wide
assessments.
    1. What are the major Part B IEP requirements that govern the
involvement and progress of children with disabilities in the
general curriculum?

Present Levels of Educational Performance

    Section 300.347(a)(1) requires that the IEP for each child with
a disability include ``* * * a statement of the child's present
levels of educational performance, including--(i) how the child's
disability affects the child's involvement and progress in the
general curriculum; or (ii) for preschool children, as appropriate,
how the child's disability affects the child's participation in
appropriate activities * * *'' (``Appropriate activities'' in this
context refers to age-relevant developmental abilities or milestones
that typically developing children of the same age would be
performing or would have achieved.)
    The IEP team's determination of how each child's disability
affects the child's involvement and progress in the general
curriculum is a primary consideration in the development of the
child's IEP. In assessing children with disabilities, school
districts may use a variety of assessment techniques to determine
the extent to which these children can be involved and progress in
the general curriculum, such as criterion-referenced tests, standard
achievement tests, diagnostic tests, other tests, or any combination
of the above.
    The purpose of using these assessments is to determine the
child's present levels of educational performance and areas of need
arising from the child's disability so that approaches for ensuring
the child's involvement and progress in the general curriculum and
any needed adaptations or modifications to that curriculum can be
identified.
    Measurable Annual Goals, including Benchmarks or Short-term
ojectives
    Measurable annual goals, including benchmarks or short-term
objectives, are critical to the strategic planning process used to
develop and implement the IEP for each child with a disability. Once
the IEP team has developed measurable annual goals for a child, the
team (1) can develop strategies that will be most effective in
realizing those goals and (2) must develop either measurable,
intermediate steps (short-term objectives) or major milestones
(benchmarks) that will enable parents, students, and educators to
monitor progress during the year, and, if appropriate, to revise the
IEP consistent with the student's instructional needs.
    The strong emphasis in Part B on linking the educational program
of children with disabilities to the general curriculum is reflected
in Sec. 300.347(a)(2), which requires that the IEP include:

a statement of measurable annual goals, including benchmarks or
short-term objectives, related to--(i) meeting the child's needs
that result from the child's disability to enable the child to be
involved in and progress in the general curriculum; and (ii) meeting
each of the child's other educational needs that result from the
child's disability.
    As noted above, each annual goal must include either short-term
objectives or benchmarks. The purpose of both is to enable a child's
teacher(s), parents, and others involved in developing and
implementing the child's IEP, to gauge, at intermediate times during
the year, how well the child is progressing toward achievement of
the annual goal. IEP teams may continue to develop short-term
instructional objectives, that generally break the skills described
in the annual goal down into discrete components. The revised
statute and regulations also provide that, as an alternative, IEP
teams may develop benchmarks, which can be thought of as describing
the amount of progress the child is expected to make within
specified segments of the year. Generally, benchmarks establish
expected performance levels that allow for regular checks of
progress that coincide with the reporting periods for informing
parents of their child's progress toward achieving the annual goals.
An IEP team may use either short term objectives or benchmarks or a
combination of the two depending on the nature of the annual goals
and the needs of the child.

Special Education and Related Services and Supplementary Aids and
Services

    The requirements regarding services provided to address a
child's present levels of educational performance and to make
progress toward the identified goals reinforce the emphasis on
progress in the general curriculum, as well as maximizing the extent
to which children with disabilities are educated with nondisabled
children. Section 300.347(a)(3) requires that the IEP include:

a statement of the special education and related services and
supplementary aids and services to be provided to the child, or on
behalf of the child, and a statement of the program modifications or
supports for school personnel that will be provided for the child--
(i) to advance appropriately toward attaining the annual goals; (ii)
to be involved and progress in the general curriculum * * * and to
participate in extracurricular and other nonacademic activities; and
(iii) to be educated and participate with other children with
disabilities and nondisabled children in [extracurricular and other
nonacademic activities] * * * [Italics added.]

Extent to Which Child Will Participate With Nondisabled Children

    Section 300.347(a)(4) requires that each child's IEP include
``An explanation of the extent, if any, to which the child will not
participate with nondisabled children in the regular class and in
[extracurricular and other nonacademic] activities * * *'' This is
consistent with the least restrictive environment (LRE) provisions
at Secs. 300.550-300.553, which include requirements that:
    (1) each child with a disability be educated with nondisabled
children to the maximum extent appropriate (Sec. 300.550(b)(1));
    (2) each child with a disability be removed from the regular
educational environment only when the nature or severity of the
child's disability is such that education in regular classes with
the use of supplementary aids and services cannot be achieved
satisfactorily (Sec. 300.550(b)(1)); and
    (3) to the maximum extent appropriate to the child's needs, each
child with a disability participates with nondisabled children in
nonacademic and extracurricular services and activities
(Sec. 300.553).
    All services and educational placements under Part B must be
individually determined in light of each child's unique abilities
and needs, to reasonably promote the child's educational success.
Placing children with disabilities in this manner should enable each
disabled child to meet high expectations in the future.
    Although Part B requires that a child with a disability not be
removed from the regular educational environment if the child's
education can be achieved satisfactorily in regular classes with the
use of supplementary aids and services, Part B's LRE principle is
intended to ensure that a child with a disability is served in a
setting where the child can be educated successfully. Even though
IDEA does not mandate regular class placement for every disabled
student, IDEA presumes that the first placement option considered
for each disabled student by the student's placement team, which
must include the parent, is the school the child would attend if not
disabled, with appropriate supplementary aids and services to
facilitate such placement. Thus, before a disabled child can be
placed outside of the regular educational environment, the full
range of supplementary aids and services that if provided would
facilitate the student's placement in the regular classroom setting
must be considered. Following that consideration, if a determination
is made that particular disabled student cannot be educated
satisfactorily in the regular educational environment, even with the
provision of appropriate supplementary aids and services, that
student then could be placed in a setting other than the regular
classroom. Later, if it becomes apparent that the child's IEP can be
carried out in a less restrictive setting, with the provision of
appropriate supplementary aids and services, if needed, Part B would
require that the child's placement be changed from the more
restrictive setting to a less restrictive setting. In all cases,
placement decisions must be individually determined on the basis of
each child's abilities and needs, and not solely on factors such as
category of disability, significance of disability, availability of
special education and related services, configuration of the service
delivery system, availability of space, or administrative
convenience. Rather, each student's IEP forms the basis for the
placement decision.
    Further, a student need not fail in the regular classroom before
another placement can be considered. Conversely, IDEA does not
require that a student demonstrate achievement of a specific
performance level as a prerequisite for placement into a regular
classroom.

[[Page 12472]]

Participation in State or District-Wide Assessments of Student
Achievement

    Consistent with Sec. 300.138(a), which sets forth a presumption
that children with disabilities will be included in general State
and district-wide assessment programs, and provided with appropriate
accommodations if necessary, Sec. 300.347(a)(5) requires that the
IEP for each student with a disability include: ``(i) a statement of
any individual modifications in the administration of State or
district-wide assessments of student achievement that are needed in
order for the child to participate in the assessment; and (ii) if
the IEP team determines that the child will not participate in a
particular State or district-wide assessment of student achievement
(or part of an assessment of student achievement), a statement of--
(A) Why that assessment is not appropriate for the child; and (B)
How the child will be assessed.''

Regular Education Teacher Participation in the Development, Review,
and Revision of IEPs

    Very often, regular education teachers play a central role in
the education of children with disabilities (H. Rep. No. 105-95, p.
103 (1997); S. Rep. No. 105-17, p. 23 (1997)) and have important
expertise regarding the general curriculum and the general education
environment. Further, with the emphasis on involvement and progress
in the general curriculum added by the IDEA Amendments of 1997,
regular education teachers have an increasingly critical role
(together with special education and related services personnel) in
implementing the program of FAPE for most children with
disabilities, as described in their IEPs.
    Accordingly, the IDEA Amendments of 1997 added a requirement
that each child's IEP team must include at least one regular
education teacher of the child, if the child is, or may be,
participating in the regular education environment (see
Sec. 300.344(a)(2)). (See also Secs. 300.346(d) on the role of a
regular education teacher in the development, review and revision of
IEPs.)
    2. Must a child's IEP address his or her involvement in the
general curriculum, regardless of the nature and severity of the
child's disability and the setting in which the child is educated?
    Yes. The IEP for each child with a disability (including
children who are educated in separate classrooms or schools) must
address how the child will be involved and progress in the general
curriculum. However, the Part B regulations recognize that some
children have other educational needs resulting from their
disability that also must be met, even though those needs are not
directly linked to participation in the general curriculum.
    Accordingly, Sec. 300.347(a)(1)(2) requires that each child's
IEP include:
    A statement of measurable annual goals, including benchmarks or
short-term objectives related to--(i) Meeting the child's needs that
result from the child's disability to enable the child to be
involved in and progress in the general curriculum; and (ii) meeting
each of the child's other educational needs that result from the
child's disability. [Italics added.]
    Thus, the IEP team for each child with a disability must make an
individualized determination regarding (1) how the child will be
involved and progress in the general curriculum and what needs that
result from the child's disability must be met to facilitate that
participation; (2) whether the child has any other educational needs
resulting from his or her disability that also must be met; and (3)
what special education and other services and supports must be
described in the child's IEP to address both sets of needs
(consistent with Sec. 300.347(a)). For example, if the IEP team
determines that in order for a child who is deaf to participate in
the general curriculum he or she needs sign language and materials
which reflect his or her language development, those needs (relating
to the child's participation in the general curriculum) must be
addressed in the child's IEP. In addition, if the team determines
that the child also needs to expand his or her vocabulary in sign
language that service must also be addressed in the applicable
components of the child's IEP. The IEP team may also wish to
consider whether there is a need for members of the child's family
to receive training in sign language in order for the child to
receive FAPE.
    3. What must public agencies do to meet the requirements at
Secs. 300.344(a)(2) and 300.346(d) regarding the participation of a
``regular education teacher'' in the development, review, and
revision of IEPs, for children aged 3 through 5 who are receiving
preschool special education services?
    If a public agency provides ``regular education'' preschool
services to non-disabled children, then the requirements of
Secs. 300.344(a)(2) and 300.346(d) apply as they do in the case of
older children with disabilities. If a public agency makes
kindergarten available to nondisabled children, then a regular
education kindergarten teacher could appropriately be the regular
education teacher who would be a member of the IEP team, and, as
appropriate, participate in IEP meetings, for a kindergarten-aged
child who is, or may be, participating in the regular education
environment.
    If a public agency does not provide regular preschool education
services to nondisabled children, the agency could designate an
individual who, under State standards, is qualified to serve
nondisabled children of the same age.
    4. Must the measurable annual goals in a child's IEP address all
areas of the general curriculum, or only those areas in which the
child's involvement and progress are affected by the child's
disability?
    Section 300.347(a)(2) requires that each child's IEP include ``A
statement of measurable annual goals, including benchmarks or short-
term objectives, related to--(i) meeting the child's needs that
result from the child's disability to enable the child to be
involved in and progress in the general curriculum * * *; and (ii)
meeting each of the child's other educational needs that result from
the child's disability. . . .'' (Italics added).
    Thus, a public agency is not required to include in an IEP
annual goals that relate to areas of the general curriculum in which
the child's disability does not affect the child's ability to be
involved in and progress in the general curriculum. If a child with
a disability needs only modifications or accommodations in order to
progress in an area of the general curriculum, the IEP does not need
to include a goal for that area; however, the IEP would need to
specify those modifications or accommodations.
    Public agencies often require all children, including children
with disabilities, to demonstrate mastery in a given area of the
general curriculum before allowing them to progress to the next
level or grade in that area. Thus, in order to ensure that each
child with a disability can effectively demonstrate competencies in
an applicable area of the general curriculum, it is important for
the IEP team to consider the accommodations and modifications that
the child needs to assist him or her in demonstrating progress in
that area.

II. Involvement of Parents and Students

    The Congressional Committee Reports on the IDEA Amendments of
1997 express the view that the Amendments provide an opportunity for
strengthening the role of parents, and emphasize that one of the
purposes of the Amendments is to expand opportunities for parents
and key public agency staff (e.g., special education, related
services, regular education, and early intervention service
providers, and other personnel) to work in new partnerships at both
the State and local levels (H. Rep. 105-95, p. 82 (1997); S. Rep.
No. 105-17, p. 4 and 5 (1997)). Accordingly, the IDEA Amendments of
1997 require that parents have an opportunity to participate in
meetings with respect to the identification, evaluation, and
educational placement of the child, and the provision of FAPE to the
child. (Sec. 300.501(a)(2)). Thus, parents must now be part of: (1)
the group that determines what additional data are needed as part of
an evaluation of their child (Sec. 300.533(a)(1)); (2) the team that
determines their child's eligibility (Sec. 300.534(a)(1)); and (3)
the group that makes decisions on the educational placement of their
child (Sec. 300.501(c)).
    In addition, the concerns of parents and the information that
they provide regarding their children must be considered in
developing and reviewing their children's IEPs
(Secs. 300.343(c)(iii) and 300.346(a)(1)(i) and (b)); and the
requirements for keeping parents informed about the educational
progress of their children, particularly as it relates to their
progress in the general curriculum, have been strengthened
(Sec. 300.347(a)(7)).
    The IDEA Amendments of 1997 also contain provisions that greatly
strengthen the involvement of students with disabilities in
decisions regarding their own futures, to facilitate movement from
school to post-school activities. For example, those amendments (1)
retained, essentially verbatim, the ``transition services''
requirements from the IDEA Amendments of 1990 (which provide that a
statement of needed transition services must be in the IEP of each
student with a disability, beginning no later than age 16); and (2)
significantly

[[Page 12473]]

expanded those provisions by adding a new annual requirement for the
IEP to include ``transition planning'' activities for students
beginning at age 14. (See section IV of this appendix for a
description of the transition services requirements and definition.)
    With respect to student involvement in decisions regarding
transition services, Sec. 300.344(b) provides that (1) ``the public
agency shall invite a student with a disability of any age to attend
his or her IEP meeting if a purpose of the meeting will be the
consideration of--(i) The student's transition services needs under
Sec. 300.347(b)(1); or (ii) The needed transition services for the
student under Sec. 300.347(b)(2); or (iii) Both;'' and (2) ``If the
student does not attend the IEP meeting, the public agency shall
take other steps to ensure that the student's preferences and
interests are considered.'' (Sec. 300.344(b)(2)).
    The IDEA Amendments of 1997 also give States the authority to
elect to transfer the rights accorded to parents under Part B to
each student with a disability upon reaching the age of majority
under State law (if the student has not been determined incompetent
under State law) (Sec. 300.517). (Part B requires that if the rights
transfer to the student, the public agency must provide any notice
required under Part B to both the student and the parents.) If the
State elects to provide for the transfer of rights from the parents
to the student at the age of majority, the IEP must, beginning at
least one year before a student reaches the age of majority under
State law, include a statement that the student has been informed of
any rights that will transfer to him or her upon reaching the age of
majority. (Sec. 300.347(c)).
    The IDEA Amendments of 1997 also permit, but do not require,
States to establish a procedure for appointing the parent, or
another appropriate individual if the parent is not available, to
represent the educational interests of a student with a disability
who has reached the age of majority under State law and has not been
determined to be incompetent, but who is determined not to have the
ability to provide informed consent with respect to his or her
educational program.
    5. What is the role of the parents, including surrogate parents,
in decisions regarding the educational program of their children?
    The parents of a child with a disability are expected to be
equal participants along with school personnel, in developing,
reviewing, and revising the IEP for their child. This is an active
role in which the parents (1) provide critical information regarding
the strengths of their child and express their concerns for
enhancing the education of their child; (2) participate in
discussions about the child's need for special education and related
services and supplementary aids and services; and (3) join with the
other participants in deciding how the child will be involved and
progress in the general curriculum and participate in State and
district-wide assessments, and what services the agency will provide
to the child and in what setting.
    As previously noted in the introduction to section II of this
Appendix, Part B specifically provides that parents of children with
disabilities--
    * Have an opportunity to participate in meetings with
respect to the identification, evaluation, and educational placement
of their child, and the provision of FAPE to the child (including
IEP meetings) (Secs. 300.501(b), 300.344(a)(1), and 300.517;
    * Be part of the groups that determine what additional
data are needed as part of an evaluation of their child
(Sec. 300.533(a)(1)), and determine their child's eligibility
(Sec. 300.534(a)(1)) and educational placement (Sec. 300.501(c));
    * Have their concerns and the information that they
provide regarding their child considered in developing and reviewing
their child's IEPs (Secs. 300.343(c)(iii) and 300.346(a)(1)(i) and
(b)); and
    * Be regularly informed (by such means as periodic report
cards), as specified in their child's IEP, at least as often as
parents are informed of their nondisabled children's progress, of
their child's progress toward the annual goals in the IEP and the
extent to which that progress is sufficient to enable the child to
achieve the goals by the end of the year (Sec. 300.347(a)(7)).
    A surrogate parent is a person appointed to represent the
interests of a child with a disability in the educational decision-
making process when no parent (as defined at Sec. 300.20) is known,
the agency, after reasonable efforts, cannot locate the child's
parents, or the child is a ward of the State under the laws of the
State. A surrogate parent has all of the rights and responsibilities
of a parent under Part B (Sec. 300.515.)
    6. What are the Part B requirements regarding the participation
of a student (child) with a disability in an IEP meeting?
    If a purpose of an IEP meeting for a student with a disability
will be the consideration of the student's transition services needs
or needed transition services under Sec. 300.347(b)(1) or (2), or
both, the public agency must invite the student and, as part of the
notification to the parents of the IEP meeting, inform the parents
that the agency will invite the student to the IEP meeting.
    If the student does not attend, the public agency must take
other steps to ensure that the student's preferences and interests
are considered. (See Sec. 300.344(b)).
    Section Sec. 300.517 permits, but does not require, States to
transfer procedural rights under Part B from the parents to students
with disabilities who reach the age of majority under State law, if
they have not been determined to be incompetent under State law. If
those rights are to be transferred from the parents to the student,
the public agency would be required to ensure that the student has
the right to participate in IEP meetings set forth for parents in
Sec. 300.345. However, at the discretion of the student or the
public agency, the parents also could attend IEP meetings as ``* * *
individuals who have knowledge or special expertise regarding the
child * * *'' (see Sec. 300.344(a)(6)).
    In other circumstances, a child with a disability may attend
``if appropriate.'' (Sec. 300.344(a)(7)). Generally, a child with a
disability should attend the IEP meeting if the parent decides that
it is appropriate for the child to do so. If possible, the agency
and parents should discuss the appropriateness of the child's
participation before a decision is made, in order to help the
parents determine whether or not the child's attendance would be (1)
helpful in developing the IEP or (2) directly beneficial to the
child or both. The agency should inform the parents before each IEP
meeting--as part of notification under Sec. 300.345(a)(1)--that they
may invite their child to participate.
    7. Must the public agency inform the parents of who will be at
the IEP meeting?
    Yes. In notifying parents about the meeting, the agency ``must
indicate the purpose, time, and location of the meeting, and who
will be in attendance.'' (Sec. 300.345(b), italics added.) In
addition, if a purpose of the IEP meeting will be the consideration
of a student's transition services needs or needed transition
services under Sec. 300.347(b)(1) or (2) or both, the notice must
also inform the parents that the agency is inviting the student, and
identify any other agency that will be invited to send a
representative.
    The public agency also must inform the parents of the right of
the parents and the agency to invite other individuals who have
knowledge or special expertise regarding the child, including
related services personnel as appropriate to be members of the IEP
team. (Sec. 300.345(b)(1)(ii).)
    It also may be appropriate for the agency to ask the parents to
inform the agency of any individuals the parents will be bringing to
the meeting. Parents are encouraged to let the agency know whom they
intend to bring. Such cooperation can facilitate arrangements for
the meeting, and help ensure a productive, child-centered meeting.
    8. Do parents have the right to a copy of their child's IEP?
    Yes. Section 300.345(f) states that the public agency shall give
the parent a copy of the IEP at no cost to the parent.
    9. What is a public agency's responsibility if it is not
possible to reach consensus on what services should be included in a
child's IEP?
    The IEP meeting serves as a communication vehicle between
parents and school personnel, and enables them, as equal
participants, to make joint, informed decisions regarding the (1)
child's needs and appropriate goals; (2) extent to which the child
will be involved in the general curriculum and participate in the
regular education environment and State and district-wide
assessments; and (3) services needed to support that involvement and
participation and to achieve agreed-upon goals. Parents are
considered equal partners with school personnel in making these
decisions, and the IEP team must consider the parents' concerns and
the information that they provide regarding their child in
developing, reviewing, and revising IEPs (Secs. 300.343(c)(iii) and
300.346(a)(1) and (b)).
    The IEP team should work toward consensus, but the public agency
has ultimate responsibility to ensure that the IEP includes the
services that the child needs in order to receive FAPE. It is not
appropriate to make IEP decisions based upon a majority ``vote.'' If
the team cannot reach consensus, the public agency must provide the
parents

[[Page 12474]]

with prior written notice of the agency's proposals or refusals, or
both, regarding the child's educational program, and the parents
have the right to seek resolution of any disagreements by initiating
an impartial due process hearing.
    Every effort should be made to resolve differences between
parents and school staff through voluntary mediation or some other
informal step, without resort to a due process hearing. However,
mediation or other informal procedures may not be used to deny or
delay a parent's right to a due process hearing, or to deny any
other rights afforded under Part B.
    10. Does Part B require that public agencies inform parents
regarding the educational progress of their children with
disabilities?
    Yes. The Part B statute and regulations include a number of
provisions to help ensure that parents are involved in decisions
regarding, and are informed about, their child's educational
progress, including the child's progress in the general curriculum.
First, the parents will be informed regarding their child's present
levels of educational performance through the development of the
IEP. Section 300.347(a)(1) requires that each IEP include:
    * * * A statement of the child's present levels of educational
performance, including--(i) how the child's disability affects the
child's involvement and progress in the general curriculum; or (ii)
for preschool children, as appropriate, how the disability affects
the child's participation in appropriate activities * * *
    Further, Sec. 300.347(a)(7) sets forth new requirements for
regularly informing parents about their child's educational
progress, as regularly as parents of nondisabled children are
informed of their child's progress. That section requires that the
IEP include:
    A statement of--(i) How the child's progress toward the annual
goals * * * will be measured; and (ii) how the child's parents will
be regularly informed (by such means as periodic report cards), at
least as often as parents are informed of their nondisabled
children's progress, of--(A) their child's progress toward the
annual goals; and (B) the extent to which that progress is
sufficient to enable the child to achieve the goals by the end of
the year.
    One method that public agencies could use in meeting this
requirement would be to provide periodic report cards to the parents
of students with disabilities that include both (1) the grading
information provided for all children in the agency at the same
intervals; and (2) the specific information required by
Sec. 300.347(a)(7)(ii)(A) and (B).
    Finally, the parents, as part of the IEP team, will participate
at least once every 12 months in a review of their child's
educational progress. Section 300.343(c) requires that a public
agency initiate and conduct a meeting, at which the IEP team:
    * * * (1) Reviews the child's IEP periodically, but not less
than annually to determine whether the annual goals for the child
are being achieved; and (2) revises the IEP as appropriate to
address--(i) any lack of expected progress toward the annual goals *
* * and in the general curriculum, if appropriate; (ii) The results
of any reevaluation * * *; (iii) Information about the child
provided to, or by, the parents * * *; (iv) The child's anticipated
needs; or (v) Other matters.

III. Preparing Students With Disabilities for Employment and Other
Post-School Experiences

    One of the primary purposes of the IDEA is to ``* * * ensure
that all children with disabilities have available to them a free
appropriate public education that emphasizes special education and
related services designed to meet their unique needs and prepare
them for employment and independent living * * *'' (Sec. 300.1(a)).
Section 701 of the Rehabilitation Act of 1973 describes the
philosophy of independent living as including a philosophy of
consumer control, peer support, self-help, self-determination, equal
access, and individual and system advocacy, in order to maximize the
leadership, empowerment, independence, and productivity of
individuals with disabilities, and the integration and full
inclusion of individuals with disabilities into the mainstream of
American society. Because many students receiving services under
IDEA will also receive services under the Rehabilitation Act, it is
important, in planning for their future, to consider the impact of
both statutes.
    Similarly, one of the key purposes of the IDEA Amendments of
1997 was to ``promote improved educational results for children with
disabilities through early intervention, preschool, and educational
experiences that prepare them for later educational challenges and
employment.'' (H. Rep. No. 105-95, p. 82 (1997); S. Rep. No. 105-17,
p. 4 (1997)).
    Thus, throughout their preschool, elementary, and secondary
education, the IEPs for children with disabilities must, to the
extent appropriate for each individual child, focus on providing
instruction and experiences that enable the child to prepare himself
or herself for later educational experiences and for post-school
activities, including formal education, if appropriate, employment,
and independent living. Many students with disabilities will obtain
services through State vocational rehabilitation programs to ensure
that their educational goals are effectively implemented in post-
school activities. Services available through rehabilitation
programs are consistent with the underlying purpose of IDEA.
    Although preparation for adult life is a key component of FAPE
throughout the educational experiences of students with
disabilities, Part B sets forth specific requirements related to
transition planning and transition services that must be implemented
no later than ages 14 and 16, respectively, and which require an
intensified focus on that preparation as these students begin and
prepare to complete their secondary education.
    11. What must the IEP team do to meet the requirements that the
IEP include ``a statement of * * * transition service needs''
beginning at age 14 (Sec. 300.347(b)(1)(i)),'' and a statement of
needed transition services'' no later than age 16
(Sec. 300.347(b)(2)?
    Section 300.347(b)(1) requires that, beginning no later than age
14, each student's IEP include specific transition-related content,
and, beginning no later than age 16, a statement of needed
transition services:
    Beginning at age 14 and younger if appropriate, and updated
annually, each student's IEP must include:

    ``* * * a statement of the transition service needs of the
student under the applicable components of the student's IEP that
focuses on the student's courses of study (such as participation in
advanced-placement courses or a vocational education program)''
(Sec. 300.347(b)(1)(i)).
    Beginning at age 16 (or younger, if determined appropriate by
the IEP team), each student's IEP must include:

``* * * a statement of needed transition services for the student,
including, if appropriate, a statement of the interagency
responsibilities or any needed linkages.'' (Sec. 300.347(b)(2)).
    The Committee Reports on the IDEA Amendments of 1997 make clear
that the requirement added to the statute in 1997 that beginning at
age 14, and updated annually, the IEP include ``a statement of the
transition service needs'' is ``* * * designed to augment, and not
replace,'' the separate, preexisting requirement that the IEP
include, ``* * * beginning at age 16 (or younger, if determined
appropriate by the IEP team), a statement of needed transition
services * * *'' (H. Rep. No. 105-95, p. 102 (1997); S. Rep. No.
105-17, p. 22 (1997)). As clarified by the Reports, ``The purpose of
[the requirement in Sec. 300.347(b)(1)(i)] is to focus attention on
how the child's educational program can be planned to help the child
make a successful transition to his or her goals for life after
secondary school.'' (H. Rep. No. 105-95, pp. 101-102 (1997); S. Rep.
No. 105-17, p. 22 (1997)). The Reports further explain that ``[F]or
example, for a child whose transition goal is a job, a transition
service could be teaching the child how to get to the job site on
public transportation.'' (H. Rep. No. 105-95, p. 102 (1997); S. Rep.
No. 105-17, p. 22 (1997)).
    Thus, beginning at age 14, the IEP team, in determining
appropriate measurable annual goals (including benchmarks or short-
term objectives) and services for a student, must determine what
instruction and educational experiences will assist the student to
prepare for transition from secondary education to post-secondary
life.
    The statement of transition service needs should relate directly
to the student's goals beyond secondary education, and show how
planned studies are linked to these goals. For example, a student
interested in exploring a career in computer science may have a
statement of transition services needs connected to technology
course work, while another student's statement of transition
services needs could describe why public bus transportation training
is important for future independence in the community.
    Although the focus of the transition planning process may shift
as the student approaches graduation, the IEP team must discuss
specific areas beginning at least at the age of 14 years and review
these areas annually. As noted in the Committee Reports, a
disproportionate number of students with disabilities drop out of
school before they

[[Page 12475]]

complete their secondary education: ``Too many students with
disabilities are failing courses and dropping out of school. Almost
twice as many students with disabilities drop out as compared to
students without disabilities.'' (H. Rep. No. 105-95, p. 85 (1997),
S. Rep. No. 105-17, p. 5 (1997).)
    To help reduce the number of students with disabilities that
drop out, it is important that the IEP team work with each student
with a disability and the student's family to select courses of
study that will be meaningful to the student's future and motivate
the student to complete his or her education.
    This requirement is distinct from the requirement, at
Sec. 300.347(b)(2), that the IEP include:

* * * beginning at age 16 (or younger, if determined appropriate by
the IEP team), a statement of needed transition services for the
child, including, if appropriate, a statement of the interagency
responsibilities or any needed linkages.
    The term ``transition services'' is defined at Sec. 300.29 to
mean:

* * * a coordinated set of activities for a student with a
disability that--(1) Is designed within an outcome-oriented process,
that promotes movement from school to post-school activities,
including postsecondary education, vocational training, integrated
employment (including supported employment), continuing and adult
education, adult services, independent living, or community
participation; (2) Is based on the individual student's needs,
taking into account the student's preferences and interests; and (3)
Includes--(i) Instruction; (ii) Related services; (iii) Community
experiences; (iv) The development of employment and other post-
school adult living objectives; and (v) If appropriate, acquisition
of daily living skills and functional vocational evaluation.
    Thus, while Sec. 300.347(b)(1) requires that the IEP team begin
by age 14 to address the student's need for instruction that will
assist the student to prepare for transition, the IEP must include
by age 16 a statement of needed transition services under
Sec. 300.347(b)(2) that includes a ``coordinated set of activities *
* *, designed within an outcome-oriented process, that promotes
movement from school to post-school activities * * *.''
(Sec. 300.29) Section 300.344(b)(3) further requires that, in
implementing Sec. 300.347(b)(1), public agencies (in addition to
required participants for all IEP meetings), must also invite a
representative of any other agency that is likely to be responsible
for providing or paying for transition services. Thus,
Sec. 300.347(b)(2) requires a broader focus on coordination of
services across, and linkages between, agencies beyond the SEA and
LEA.
    12. Must the IEP for each student with a disability, beginning
no later than age 16, include all ``needed transition services,'' as
identified by the IEP team and consistent with the definition at
Sec. 300.29, even if an agency other than the public agency will
provide those services? What is the public agency's responsibility
if another agency fails to provide agreed-upon transition services?
    Section 300.347(b)(2) requires that the IEP for each child with
a disability, beginning no later than age 16, or younger if
determined appropriate by the IEP team, include all ``needed
transition services,'' as identified by the IEP team and consistent
with the definition at Sec. 300.29, regardless of whether the public
agency or some other agency will provide those services. Section
300.347(b)(2) specifically requires that the statement of needed
transition services include, ``* * * if appropriate, a statement of
the interagency responsibilities or any needed linkages.''
    Further, the IDEA Amendments of 1997 also permit an LEA to use
up to five percent of the Part B funds it receives in any fiscal
year in combination with other amounts, which must include amounts
other than education funds, to develop and implement a coordinated
services system. These funds may be used for activities such as: (1)
linking IEPs under Part B and Individualized Family Service Plans
(IFSPs) under Part C, with Individualized Service Plans developed
under multiple Federal and State programs, such as Title I of the
Rehabilitation Act; and (2) developing and implementing interagency
financing strategies for the provision of services, including
transition services under Part B.
    The need to include, as part of a student's IEP, transition
services to be provided by agencies other than the public agency is
contemplated by Sec. 300.348(a), which specifies what the public
agency must do if another agency participating in the development of
the statement of needed transition services fails to provide a
needed transition service that it had agreed to provide.
    If an agreed-upon service by another agency is not provided, the
public agency responsible for the student's education must implement
alternative strategies to meet the student's needs. This requires
that the public agency provide the services, or convene an IEP
meeting as soon as possible to identify alternative strategies to
meet the transition services objectives, and to revise the IEP
accordingly.
    Alternative strategies might include the identification of
another funding source, referral to another agency, the public
agency's identification of other district-wide or community
resources that it can use to meet the student's identified needs
appropriately, or a combination of these strategies. As emphasized
by Sec. 300.348(b), however:
    Nothing in [Part B] relieves any participating agency, including
a State vocational rehabilitation agency, of the responsibility to
provide or pay for any transition service that the agency would
otherwise provide to students with disabilities who meet the
eligibility criteria of that agency.
    However, the fact that an agency other than the public agency
does not fulfill its responsibility does not relieve the public
agency of its responsibility to ensure that FAPE is available to
each student with a disability. (Section 300.142(b)(2) specifically
requires that if an agency other than the LEA fails to provide or
pay for a special education or related service (which could include
a transition service), the LEA must, without delay, provide or pay
for the service, and may then claim reimbursement from the agency
that failed to provide or pay for the service.)
    13. Under what circumstances must a public agency invite
representatives from other agencies to an IEP meeting at which a
child's need for transition services will be considered?
    Section 300.344 requires that, ``In implementing the
requirements of [Sec. 300.347(b)(1)(ii) requiring a statement of
needed transition services], the public agency shall also invite a
representative of any other agency that is likely to be responsible
for providing or paying for transition services.'' To meet this
requirement, the public agency must identify all agencies that are
``likely to be responsible for providing or paying for transition
services'' for each student addressed by Sec. 300.347(b)(1), and
must invite each of those agencies to the IEP meeting; and if an
agency invited to send a representative to a meeting does not do so,
the public agency must take other steps to obtain the participation
of that agency in the planning of any transition services.
    If, during the course of an IEP meeting, the team identifies
additional agencies that are ``likely to be responsible for
providing or paying for transition services'' for the student, the
public agency must determine how it will meet the requirements of
Sec. 300.344.

IV. Other Questions Regarding the Development and Content of IEPS

    14. For a child with a disability receiving special education
for the first time, when must an IEP be developed--before or after
the child begins to receive special education and related services?
    Section 300.342(b)(1) requires that an IEP be ``in effect before
special education and related services are provided to an eligible
child * * *'' (Italics added.)
    The appropriate placement for a particular child with a
disability cannot be determined until after decisions have been made
about the child's needs and the services that the public agency will
provide to meet those needs. These decisions must be made at the IEP
meeting, and it would not be permissible first to place the child
and then develop the IEP. Therefore, the IEP must be developed
before placement. (Further, the child's placement must be based,
among other factors, on the child's IEP.)
    This requirement does not preclude temporarily placing an
eligible child with a disability in a program as part of the
evaluation process--before the IEP is finalized--to assist a public
agency in determining the appropriate placement for the child.
However, it is essential that the temporary placement not become the
final placement before the IEP is finalized. In order to ensure that
this does not happen, the State might consider requiring LEAs to
take the following actions:
    a. Develop an interim IEP for the child that sets out the
specific conditions and timelines for the trial placement. (See
paragraph c, following.)
    b. Ensure that the parents agree to the interim placement before
it is carried out, and that they are involved throughout the

[[Page 12476]]

process of developing, reviewing, and revising the child's IEP.
    c. Set a specific timeline (e.g., 30 days) for completing the
evaluation, finalizing the IEP, and determining the appropriate
placement for the child.
    d. Conduct an IEP meeting at the end of the trial period in
order to finalize the child's IEP.
    15. Who is responsible for ensuring the development of IEPs for
children with disabilities served by a public agency other than an
LEA?
    The answer as to which public agency has direct responsibility
for ensuring the development of IEPs for children with disabilities
served by a public agency other than an LEA will vary from State to
State, depending upon State law, policy, or practice. The SEA is
ultimately responsible for ensuring that all Part B requirements,
including the IEP requirements, are met for eligible children within
the State, including those children served by a public agency other
than an LEA. Thus, the SEA must ensure that every eligible child
with a disability in the State has FAPE available, regardless of
which State or local agency is responsible for educating the child.
(The only exception to this responsibility is that the SEA is not
responsible for ensuring that FAPE is made available to children
with disabilities who are convicted as adults under State law and
incarcerated in adult prisons, if the State has assigned that
responsibility to a public agency other than the SEA. (See
Sec. 300.600(d)).
    Although the SEA has flexibility in deciding the best means to
meet this obligation (e.g., through interagency agreements), the SEA
must ensure that no eligible child with a disability is denied FAPE
due to jurisdictional disputes among agencies.
    When an LEA is responsible for the education of a child with a
disability, the LEA remains responsible for developing the child's
IEP, regardless of the public or private school setting into which
it places the child.
    16. For a child placed out of State by an educational or non-
educational State or local agency, is the placing or receiving State
responsible for the child's IEP?
    Regardless of the reason for the placement, the ``placing''
State is responsible for ensuring that the child's IEP is developed
and that it is implemented. The determination of the specific agency
in the placing State that is responsible for the child's IEP would
be based on State law, policy, or practice. However, the SEA in the
placing State is ultimately responsible for ensuring that the child
has FAPE available.
    17. If a disabled child has been receiving special education
from one public agency and transfers to another public agency in the
same State, must the new public agency develop an IEP before the
child can be placed in a special education program?
    If a child with a disability moves from one public agency to
another in the same State, the State and its public agencies have an
ongoing responsibility to ensure that FAPE is made available to that
child. This means that if a child moves to another public agency the
new agency is responsible for ensuring that the child has available
special education and related services in conformity with an IEP.
    The new public agency must ensure that the child has an IEP in
effect before the agency can provide special education and related
services. The new public agency may meet this responsibility by
either adopting the IEP the former public agency developed for the
child or by developing a new IEP for the child. (The new public
agency is strongly encouraged to continue implementing the IEP
developed by the former public agency, if appropriate, especially if
the parents believe their child was progressing appropriately under
that IEP.)
    Before the child's IEP is finalized, the new public agency may
provide interim services agreed to by both the parents and the new
public agency. If the parents and the new public agency are unable
to agree on an interim IEP and placement, the new public agency must
implement the old IEP to the extent possible until a new IEP is
developed and implemented.
    In general, while the new public agency must conduct an IEP
meeting, it would not be necessary if: (1) A copy of the child's
current IEP is available; (2) the parents indicate that they are
satisfied with the current IEP; and (3) the new public agency
determines that the current IEP is appropriate and can be
implemented as written.
    If the child's current IEP is not available, or if either the
new public agency or the parent believes that it is not appropriate,
the new public agency must develop a new IEP through appropriate
procedures within a short time after the child enrolls in the new
public agency (normally, within one week).
    18. What timelines apply to the development and implementation
of an initial IEP for a child with a disability?
    Section 300.343(b) requires each public agency to ensure that
within a reasonable period of time following the agency's receipt of
parent consent to an initial evaluation of a child, the child is
evaluated and, if determined eligible, special education and related
services are made available to the child in accordance with an IEP.
The section further requires the agency to conduct a meeting to
develop an IEP for the child within 30 days of determining that the
child needs special education and related services.
    Section 300.342(b)(2) provides that an IEP must be implemented
as soon as possible following the meeting in which the IEP is
developed.
    19. Must a public agency hold separate meetings to determine a
child's eligibility for special education and related services,
develop the child's IEP, and determine the child's placement, or may
the agency meet all of these requirements in a single meeting?
    A public agency may, after a child is determined by ``a group of
qualified professionals and the parent'' (see Sec. 300.534(a)(1)) to
be a child with a disability, continue in the same meeting to
develop an IEP for the child and then to determine the child's
placement. However, the public agency must ensure that it meets: (1)
the requirements of Sec. 300.535 regarding eligibility decisions;
(2) all of the Part B requirements regarding meetings to develop
IEPs (including providing appropriate notification to the parents,
consistent with the requirements of Secs. 300.345, 300.503, and
300.504, and ensuring that all the required team members participate
in the development of the IEP, consistent with the requirements of
Sec. 300.344;) and (3) ensuring that the placement is made by the
required individuals, including the parent, as required by
Secs. 300.552 and 300.501(c).
    20. How frequently must a public agency conduct meetings to
review, and, if appropriate, revise the IEP for each child with a
disability?
    A public agency must initiate and conduct meetings periodically,
but at least once every twelve months, to review each child's IEP,
in order to determine whether the annual goals for the child are
being achieved, and to revise the IEP, as appropriate, to address:
(a) Any lack of expected progress toward the annual goals and in the
general curriculum, if appropriate; (b) the results of any
reevaluation; (c) information about the child provided to, or by,
the parents; (d) the child's anticipated needs; or (e) other matters
(Sec. 300.343(c)).
    A public agency also must ensure that an IEP is in effect for
each child at the beginning of each school year (Sec. 300.342(a)).
It may conduct IEP meetings at any time during the year. However, if
the agency conducts the IEP meeting prior to the beginning of the
next school year, it must ensure that the IEP contains the necessary
special education and related services and supplementary aids and
services to ensure that the student's IEP can be appropriately
implemented during the next school year. Otherwise, it would be
necessary for the public agency to conduct another IEP meeting.
    Although the public agency is responsible for determining when
it is necessary to conduct an IEP meeting, the parents of a child
with a disability have the right to request an IEP meeting at any
time. For example, if the parents believe that the child is not
progressing satisfactorily or that there is a problem with the
child's current IEP, it would be appropriate for the parents to
request an IEP meeting.
    If a child's teacher feels that the child's IEP or placement is
not appropriate for the child, the teacher should follow agency
procedures with respect to: (1) calling or meeting with the parents
or (2) requesting the agency to hold another IEP meeting to review
the child's IEP.
    The legislative history of Public Law 94-142 makes it clear that
there should be as many meetings a year as any one child may need
(121 Cong. Rec. S20428-29 (Nov. 19, 1975) (remarks of Senator
Stafford)). Public agencies should grant any reasonable parent
request for an IEP meeting. For example, if the parents question the
adequacy of services that are provided while their child is
suspended for short periods of time, it would be appropriate to
convene an IEP meeting.
    In general, if either a parent or a public agency believes that
a required component of the student's IEP should be changed, the
public agency must conduct an IEP meeting if it believes that a
change in the IEP may be necessary to ensure the provision of FAPE.
    If a parent requests an IEP meeting because the parent believes
that a change is needed

[[Page 12477]]

in the provision of FAPE to the child or the educational placement
of the child, and the agency refuses to convene an IEP meeting to
determine whether such a change is needed, the agency must provide
written notice to the parents of the refusal, including an
explanation of why the agency has determined that conducting the
meeting is not necessary to ensure the provision of FAPE to the
student.
    Under Sec. 300.507(a), the parents or agency may initiate a due
process hearing at any time regarding any proposal or refusal
regarding the identification, evaluation, or educational placement
of the child, or the provision of FAPE to the child, and the public
agency must inform parents about the availability of mediation.
    21. May IEP meetings be audio- or video-tape-recorded?
    Part B does not address the use of audio or video recording
devices at IEP meetings, and no other Federal statute either
authorizes or prohibits the recording of an IEP meeting by either a
parent or a school official. Therefore, an SEA or public agency has
the option to require, prohibit, limit, or otherwise regulate the
use of recording devices at IEP meetings.
    If a public agency has a policy that prohibits or limits the use
of recording devices at IEP meetings, that policy must provide for
exceptions if they are necessary to ensure that the parent
understands the IEP or the IEP process or to implement other
parental rights guaranteed under Part B. An SEA or school district
that adopts a rule regulating the tape recording of IEP meetings
also should ensure that it is uniformly applied.
    Any recording of an IEP meeting that is maintained by the public
agency is an ``education record,'' within the meaning of the Family
Educational Rights and Privacy Act (``FERPA''; 20 U.S.C. 1232g), and
would, therefore, be subject to the confidentiality requirements of
the regulations under both FERPA (34 CFR part 99) and part B
(Secs. 300.560-300.575).
    Parents wishing to use audio or video recording devices at IEP
meetings should consult State or local policies for further
guidance.
    22. Who can serve as the representative of the public agency at
an IEP meeting?
    The IEP team must include a representative of the public agency
who: (a) Is qualified to provide, or supervise the provision of,
specially designed instruction to meet the unique needs of children
with disabilities; (b) is knowledgeable about the general
curriculum; and (c) is knowledgeable about the availability of
resources of the public agency (Sec. 300.344(a)(4)).
    Each public agency may determine which specific staff member
will serve as the agency representative in a particular IEP meeting,
so long as the individual meets these requirements. It is important,
however, that the agency representative have the authority to commit
agency resources and be able to ensure that whatever services are
set out in the IEP will actually be provided.
    A public agency may designate another public agency member of
the IEP team to also serve as the agency representative, so long as
that individual meets the requirements of Sec. 300.344(a)(4).
    23. For a child with a disability being considered for initial
provision of special education and related services, which teacher
or teachers should attend the IEP meeting?
    A child's IEP team must include at least one of the child's
regular education teachers (if the child is, or may be participating
in the regular education environment) and at least one of the
child's special education teachers, or, if appropriate, at least one
of the child's special education providers (Sec. 300.344(a)(2) and
(3)).
    Each IEP must include a statement of the present levels of
educational performance, including a statement of how the child's
disability affects the child's involvement and progress in the
general curriculum (Sec. 300.347(a)(1)). At least one regular
education teacher is a required member of the IEP team of a child
who is, or may be, participating in the regular educational
environment, regardless of the extent of that participation.
    The requirements of Sec. 300.344(a)(3) can be met by either: (1)
a special education teacher of the child; or (2) another special
education provider of the child, such as a speech pathologist,
physical or occupational therapist, etc., if the related service
consists of specially designed instruction and is considered special
education under applicable State standards.
    Sometimes more than one meeting is necessary in order to
finalize a child's IEP. In this process, if the special education
teacher or special education provider who will be working with the
child is identified, it would be useful to have that teacher or
provider participate in the meeting with the parents and other
members of the IEP team in finalizing the IEP. If this is not
possible, the public agency must ensure that the teacher or provider
has access to the child's IEP as soon as possible after it is
finalized and before beginning to work with the child.
    Further, (consistent with Sec. 300.342(b)), the public agency
must ensure that each regular education teacher, special education
teacher, related services provider and other service provider of an
eligible child under this part (1) has access to the child's IEP,
and (2) is informed of his or her specific responsibilities related
to implementing the IEP, and of the specific accommodations,
modifications, and supports that must be provided to the child in
accordance with the IEP. This requirement is crucial to ensuring
that each child receives FAPE in accordance with his or her IEP, and
that the IEP is appropriately and effectively implemented.
    24. What is the role of a regular education teacher in the
development, review and revision of the IEP for a child who is, or
may be, participating in the regular education environment?
    As required by Sec. 300.344(a)(2), the IEP team for a child with
a disability must include at least one regular education teacher of
the child if the child is, or may be, participating in the regular
education environment. Section 300.346(d) further specifies that the
regular education teacher of a child with a disability, as a member
of the IEP team, must, to the extent appropriate, participate in the
development, review, and revision of the child's IEP, including
assisting in--(1) the determination of appropriate positive
behavioral interventions and strategies for the child; and (2) the
determination of supplementary aids and services, program
modifications, and supports for school personnel that will be
provided for the child, consistent with 300.347(a)(3)
(Sec. 300.344(d)).
    Thus, while a regular education teacher must be a member of the
IEP team if the child is, or may be, participating in the regular
education environment, the teacher need not (depending upon the
child's needs and the purpose of the specific IEP team meeting) be
required to participate in all decisions made as part of the meeting
or to be present throughout the entire meeting or attend every
meeting. For example, the regular education teacher who is a member
of the IEP team must participate in discussions and decisions about
how to modify the general curriculum in the regular classroom to
ensure the child's involvement and progress in the general
curriculum and participation in the regular education environment.
    Depending upon the specific circumstances, however, it may not
be necessary for the regular education teacher to participate in
discussions and decisions regarding, for example, the physical
therapy needs of the child, if the teacher is not responsible for
implementing that portion of the child's IEP.
    In determining the extent of the regular education teacher's
participation at IEP meetings, public agencies and parents should
discuss and try to reach agreement on whether the child's regular
education teacher that is a member of the IEP team should be present
at a particular IEP meeting and, if so, for what period of time. The
extent to which it would be appropriate for the regular education
teacher member of the IEP team to participate in IEP meetings must
be decided on a case-by-case basis.
    25. If a child with a disability attends several regular
classes, must all of the child's regular education teachers be
members of the child's IEP team?
    No. The IEP team need not include more than one regular
education teacher of the child. If the participation of more than
one regular education teacher would be beneficial to the child's
success in school (e.g., in terms of enhancing the child's
participation in the general curriculum), it would be appropriate
for them to attend the meeting.
    26. How should a public agency determine which regular education
teacher and special education teacher will be members of the IEP
team for a particular child with a disability?
    The regular education teacher who serves as a member of a
child's IEP team should be a teacher who is, or may be, responsible
for implementing a portion of the IEP, so that the teacher can
participate in discussions about how best to teach the child.
    If the child has more than one regular education teacher
responsible for carrying out a portion of the IEP, the LEA may
designate which teacher or teachers will serve as IEP team
member(s), taking into account the best interest of the child.
    In a situation in which not all of the child's regular education
teachers are members of

[[Page 12478]]

the child's IEP team, the LEA is strongly encouraged to seek input
from the teachers who will not be attending. In addition,
(consistent with Sec. 300.342(b)), the LEA must ensure that each
regular education teacher (as well as each special education
teacher, related services provider, and other service provider) of
an eligible child under this part (1) has access to the child's IEP,
and (2) is informed of his or her specific responsibilities related
to implementing the IEP, and of the specific accommodations,
modifications and supports that must be provided to the child in
accordance with the IEP.
    In the case of a child whose behavior impedes the learning of
the child or others, the LEA is encouraged to have a regular
education teacher or other person knowledgeable about positive
behavior strategies at the IEP meeting. This is especially important
if the regular education teacher is expected to carry out portions
of the IEP.
    Similarly, the special education teacher or provider of the
child who is a member of the child's IEP team should be the person
who is, or will be, responsible for implementing the IEP. If, for
example, the child's disability is a speech impairment, the special
education teacher on the IEP team could be the speech-language
pathologist.
    27. For a child whose primary disability is a speech impairment,
may a public agency meet its responsibility under Sec. 300.344(a)(3)
to ensure that the IEP team includes ``at least one special
education teacher, or, if appropriate, at least one special
education provider of the child'' by including a speech-language
pathologist on the IEP team?
    Yes, if speech is considered special education under State
standards. As with other children with disabilities, the IEP team
must also include at least one of the child's regular education
teachers if the child is, or may be, participating in the regular
education environment.
    28. Do parents and public agencies have the option of inviting
any individual of their choice be participants on their child's IEP
team?
    The IEP team may, at the discretion of the parent or the agency,
include ``other individuals who have knowledge or special expertise
regarding the child * * *'' (Sec. 300.344(a)(6), italics added).
Under Sec. 300.344(a)(6), these individuals are members of the IEP
team. This is a change from prior law, which provided, without
qualification, that parents or agencies could have other individuals
as members of the IEP team at the discretion of the parents or
agency.
    Under Sec. 300.344(c), the determination as to whether an
individual has knowledge or special expertise, within the meaning of
Sec. 300.344(a)(6), shall be made by the parent or public agency who
has invited the individual to be a member of the IEP team.
    Part B does not provide for including individuals such as
representatives of teacher organizations as part of an IEP team,
unless they are included because of knowledge or special expertise
regarding the child. (Because a representative of a teacher
organization would generally be concerned with the interests of the
teacher rather than the interests of the child, and generally would
not possess knowledge or expertise regarding the child, it generally
would be inappropriate for such an official to be a member of the
IEP team or to otherwise participate in an IEP meeting.)
    29. Can parents or public agencies bring their attorneys to IEP
meetings, and, if so under what circumstances? Are attorney's fees
available for parents' attorneys if the parents are prevailing
parties in actions or proceedings brought under Part B?
    Section 300.344(a)(6) authorizes the addition to the IEP team of
other individuals at the discretion of the parent or the public
agency only if those other individuals have knowledge or special
expertise regarding the child. The determination of whether an
attorney possesses knowledge or special expertise regarding the
child would have to be made on a case-by-case basis by the parent or
public agency inviting the attorney to be a member of the team.
    The presence of the agency's attorney could contribute to a
potentially adversarial atmosphere at the meeting. The same is true
with regard to the presence of an attorney accompanying the parents
at the IEP meeting. Even if the attorney possessed knowledge or
special expertise regarding the child (Sec. 300.344(a)(6)), an
attorney's presence would have the potential for creating an
adversarial atmosphere that would not necessarily be in the best
interests of the child.
    Therefore, the attendance of attorneys at IEP meetings should be
strongly discouraged. Further, as specified in Section
615(i)(3)(D)(ii) of the Act and Sec. 300.513(c)(2)(ii), Attorneys'
fees may not be awarded relating to any meeting of the IEP team
unless the meeting is convened as a result of an administrative
proceeding or judicial action, or, at the discretion of the State,
for a mediation conducted prior to the request for a due process
hearing.
    30. Must related services personnel attend IEP meetings?
    Although Part B does not expressly require that the IEP team
include related services personnel as part of the IEP team
(Sec. 300.344(a)), it is appropriate for those persons to be
included if a particular related service is to be discussed as part
of the IEP meeting. Section 300.344(a)(6) provides that the IEP team
also includes ``at the discretion of the parent or the agency, other
individuals who have knowledge or special expertise regarding the
child, including related services personnel as appropriate. * * *''
(Italics added.)
    Further, Sec. 300.344(a)(3) requires that the IEP team for each
child with a disability include ``at least one special education
teacher, or, if appropriate, at least one special education provider
of the child * * *'' This requirement can be met by the
participation of either (1) a special education teacher of the
child, or (2) another special education provider such as a speech-
language pathologist, physical or occupational therapist, etc., if
the related service consists of specially designed instruction and
is considered special education under the applicable State standard.
    If a child with a disability has an identified need for related
services, it would be appropriate for the related services personnel
to attend the meeting or otherwise be involved in developing the
IEP. As explained in the Committee Reports on the IDEA Amendments of
1997, ``Related services personnel should be included on the team
when a particular related service will be discussed at the request
of the child's parents or the school.'' (H. Rep. No. 105-95, p. 103
(1997); S. Rep. No. 105-17, p. 23 (1997)). For example, if the
child's evaluation indicates the need for a specific related service
(e.g., physical therapy, occupational therapy, special
transportation services, school social work services, school health
services, or counseling), the agency should ensure that a qualified
provider of that service either (1) attends the IEP meeting, or (2)
provides a written recommendation concerning the nature, frequency,
and amount of service to be provided to the child. This written
recommendation could be a part of the evaluation report.
    A public agency must ensure that all individuals who are
necessary to develop an IEP that will meet the child's unique needs,
and ensure the provision of FAPE to the child, participate in the
child's IEP meeting.
    31. Must the public agency ensure that all services specified in
a child's IEP are provided?
    Yes. The public agency must ensure that all services set forth
in the child's IEP are provided, consistent with the child's needs
as identified in the IEP. The agency may provide each of those
services directly, through its own staff resources; indirectly, by
contracting with another public or private agency; or through other
arrangements. In providing the services, the agency may use whatever
State, local, Federal, and private sources of support are available
for those purposes (see Sec. 300.301(a)); but the services must be
at no cost to the parents, and the public agency remains responsible
for ensuring that the IEP services are provided in a manner that
appropriately meets the student's needs as specified in the IEP. The
SEA and responsible public agency may not allow the failure of
another agency to provide service(s) described in the child's IEP to
deny or delay the provision of FAPE to the child. (See Sec. 300.142,
Methods of ensuring services.)
    32. Is it permissible for an agency to have the IEP completed
before the IEP meeting begins?
    No. Agency staff may come to an IEP meeting prepared with
evaluation findings and proposed recommendations regarding IEP
content, but the agency must make it clear to the parents at the
outset of the meeting that the services proposed by the agency are
only recommendations for review and discussion with the parents.
Parents have the right to bring questions, concerns, and
recommendations to an IEP meeting as part of a full discussion, of
the child's needs and the services to be provided to meet those
needs before the IEP is finalized.
    Public agencies must ensure that, if agency personnel bring
drafts of some or all of the IEP content to the IEP meeting, there
is a full discussion with the child's parents, before

[[Page 12479]]

the child's IEP is finalized, regarding drafted content and the
child's needs and the services to be provided to meet those needs.
    33. Must a public agency include transportation in a child's IEP
as a related service?
    As with other related services, a public agency must provide
transportation as a related service if it is required to assist the
disabled child to benefit from special education. (This includes
transporting a preschool-aged child to the site at which the public
agency provides special education and related services to the child,
if that site is different from the site at which the child receives
other preschool or day care services.)
    In determining whether to include transportation in a child's
IEP, and whether the child needs to receive transportation as a
related service, it would be appropriate to have at the IEP meeting
a person with expertise in that area. In making this determination,
the IEP team must consider how the child's disability affects the
child's need for transportation, including determining whether the
child's disability prevents the child from using the same
transportation provided to nondisabled children, or from getting to
school in the same manner as nondisabled children.
    The public agency must ensure that any transportation service
included in a child's IEP as a related service is provided at public
expense and at no cost to the parents, and that the child's IEP
describes the transportation arrangement.
    Even if a child's IEP team determines that the child does not
require transportation as a related service, Section 504 of the
Rehabilitation Act of 1973, as amended, requires that the child
receive the same transportation provided to nondisabled children. If
a public agency transports nondisabled children, it must transport
disabled children under the same terms and conditions. However, if a
child's IEP team determines that the child does not need
transportation as a related service, and the public agency
transports only those children whose IEPs specify transportation as
a related service, and does not transport nondisabled children, the
public agency would not be required to provide transportation to a
disabled child.
    It should be assumed that most children with disabilities
receive the same transportation services as nondisabled children.
For some children with disabilities, integrated transportation may
be achieved by providing needed accommodations such as lifts and
other equipment adaptations on regular school transportation
vehicles.
    34. Must a public agency provide related services that are
required to assist a child with a disability to benefit from special
education, whether or not those services are included in the list of
related services in Sec. 300.24?
    The list of related services is not exhaustive and may include
other developmental, corrective, or supportive services if they are
required to assist a child with a disability to benefit from special
education. This could, depending upon the unique needs of a child,
include such services as nutritional services or service
coordination.
    These determinations must be made on an individual basis by each
child's IEP team.
    35. Must the IEP specify the amount of services or may it simply
list the services to be provided?
    The amount of services to be provided must be stated in the IEP,
so that the level of the agency's commitment of resources will be
clear to parents and other IEP team members (Sec. 300.347(a)(6)).
The amount of time to be committed to each of the various services
to be provided must be (1) appropriate to the specific service, and
(2) stated in the IEP in a manner that is clear to all who are
involved in both the development and implementation of the IEP.
    The amount of a special education or related service to be
provided to a child may be stated in the IEP as a range (e.g.,
speech therapy to be provided three times per week for 30-45 minutes
per session) only if the IEP team determines that stating the amount
of services as a range is necessary to meet the unique needs of the
child. For example, it would be appropriate for the IEP to specify,
based upon the IEP team's determination of the student's unique
needs, that particular services are needed only under specific
circumstances, such as the occurrence of a seizure or of a
particular behavior. A range may not be used because of personnel
shortages or uncertainty regarding the availability of staff.
    36. Under what circumstances is a public agency required to
permit a child with a disability to use a school-purchased assistive
technology device in the child's home or in another setting?
    Each child's IEP team must consider the child's need for
assistive technology (AT) in the development of the child's IEP
(Sec. 300.346(a)(2)(v)); and the nature and extent of the AT devices
and services to be provided to the child must be reflected in the
child's IEP (Sec. 300.346(c)).
    A public agency must permit a child to use school-purchased
assistive technology devices at home or in other settings, if the
IEP team determines that the child needs access to those devices in
nonschool settings in order to receive FAPE (to complete homework,
for example).
    Any assistive technology devices that are necessary to ensure
FAPE must be provided at no cost to the parents, and the parents
cannot be charged for normal use, wear and tear. However, while
ownership of the devices in these circumstances would remain with
the public agency, State law, rather than Part B, generally would
govern whether parents are liable for loss, theft, or damage due to
negligence or misuse of publicly owned equipment used at home or in
other settings in accordance with a child's IEP.
    37. Can the IEP team also function as the group making the
placement decision for a child with a disability?
    Yes, a public agency may use the IEP team to make the placement
decision for a child, so long as the group making the placement
decision meets the requirements of Secs. 300.552 and 300.501(c),
which requires that the placement decision be made by a group of
persons, including the parents, and other persons knowledgeable
about the child, the meaning of the evaluation data, and the
placement options.
    38. If a child's IEP includes behavioral strategies to address a
particular behavior, can a child ever be suspended for engaging in
that behavior?
    If a child's behavior impedes his or her learning or that of
others, the IEP team, in developing the child's IEP, must consider,
if appropriate, development of strategies, including positive
behavioral interventions, strategies and supports to address that
behavior, consistent with Sec. 300.346(a)(2)(i). This means that in
most cases in which a child's behavior that impedes his or her
learning or that of others is, or can be readily anticipated to be,
repetitive, proper development of the child's IEP will include the
development of strategies, including positive behavioral
interventions, strategies and supports to address that behavior. See
Sec. 300.346(c). This includes behavior that could violate a school
code of conduct. A failure to, if appropriate, consider and address
these behaviors in developing and implementing the child's IEP would
constitute a denial of FAPE to the child. Of course, in appropriate
circumstances, the IEP team, which includes the child's parents,
might determine that the child's behavioral intervention plan
includes specific regular or alternative disciplinary measures, such
as denial of certain privileges or short suspensions, that would
result from particular infractions of school rules, along with
positive behavior intervention strategies and supports, as a part of
a comprehensive plan to address the child's behavior. Of course, if
short suspensions that are included in a child's IEP are being
implemented in a manner that denies the child access to the ability
to progress in the educational program, the child would be denied
FAPE.
    Whether other disciplinary measures, including suspension, are
ever appropriate for behavior that is addressed in a child's IEP
will have to be determined on a case by case basis in light of the
particular circumstances of that incident. However, school personnel
may not use their ability to suspend a child for 10 days or less at
a time on multiple occasions in a school year as a means of avoiding
appropriately considering and addressing the child's behavior as a
part of providing FAPE to the child.
    39. If a child's behavior in the regular classroom, even with
appropriate interventions, would significantly impair the learning
of others, can the group that makes the placement decision determine
that placement in the regular classroom is inappropriate for that
child?
    The IEP team, in developing the IEP, is required to consider,
when appropriate, strategies, including positive behavioral
interventions, strategies and supports to address the behavior of a
child with a disability whose behavior impedes his or her learning
or that of others. If the IEP team determines that such supports,
strategies or interventions are necessary to address the behavior of
the child, those services must be included in the child's IEP. These
provisions are designed to foster increased participation of
children with disabilities in regular

[[Page 12480]]

education environments or other less restrictive environments, not
to serve as a basis for placing children with disabilities in more
restrictive settings.
    The determination of appropriate placement for a child whose
behavior is interfering with the education of others requires
careful consideration of whether the child can appropriately
function in the regular classroom if provided appropriate behavioral
supports, strategies and interventions. If the child can
appropriately function in the regular classroom with appropriate
behavioral supports, strategies or interventions, placement in a
more restrictive environment would be inconsistent with the least
restrictive environment provisions of the IDEA. If the child's
behavior in the regular classroom, even with the provision of
appropriate behavioral supports, strategies or interventions, would
significantly impair the learning of others, that placement would
not meet his or her needs and would not be appropriate for that
child.
    40. May school personnel during a school year implement more
than one short-term removal of a child with disabilities from his or
her classroom or school for misconduct?
    Yes. Under Sec. 300.520(a)(1), school personnel may order
removal of a child with a disability from the child's current
placement for not more than 10 consecutive school days for any
violation of school rules, and additional removals of not more than
10 consecutive school days in that same school year for separate
incidents of misconduct, as long as these removals do not constitute
a change of placement under Sec. 300.519(b). However, these removals
are permitted only to the extent they are consistent with discipline
that is applied to children without disabilities. Also, school
personnel should be aware of constitutional due process protections
that apply to suspensions of all children. Goss v. Lopez, 419 U.S.
565 (1975). Section 300.121(d) addresses the extent of the
obligation to provide services after a child with a disability has
been removed from his or her current placement for more than 10
school days in the same school year.

BILLING CODE: 4000-01-P

[[Page 12481]]

[GRAPHIC] [TIFF OMITTED] TR12MR99.000

[[Page 12482]]

[GRAPHIC] [TIFF OMITTED] TR12MR99.001

[[Page 12483]]

[GRAPHIC] [TIFF OMITTED] TR12MR99.002

[[Page 12484]]

[GRAPHIC] [TIFF OMITTED] TR12MR99.003

[[Page 12485]]

[GRAPHIC] [TIFF OMITTED] TR12MR99.004

[[Page 12486]]

[GRAPHIC] [TIFF OMITTED] TR12MR99.005

[[Page 12487]]

[GRAPHIC] [TIFF OMITTED] TR12MR99.006

[[Page 12488]]

[GRAPHIC] [TIFF OMITTED] TR12MR99.007

[[Page 12489]]

[GRAPHIC] [TIFF OMITTED] TR12MR99.008

[[Page 12490]]

[GRAPHIC] [TIFF OMITTED] TR12MR99.009

[[Page 12491]]

[GRAPHIC] [TIFF OMITTED] TR12MR99.010

[[Page 12492]]

[GRAPHIC] [TIFF OMITTED] TR12MR99.011

[[Page 12493]]

[GRAPHIC] [TIFF OMITTED] TR12MR99.012

[[Page 12494]]

[GRAPHIC] [TIFF OMITTED] TR12MR99.013

[[Page 12495]]

[GRAPHIC] [TIFF OMITTED] TR12MR99.014

[[Page 12496]]

[GRAPHIC] [TIFF OMITTED] TR12MR99.015

[[Page 12497]]

[GRAPHIC] [TIFF OMITTED] TR12MR99.016

[[Page 12498]]

[GRAPHIC] [TIFF OMITTED] TR12MR99.017

[[Page 12499]]

[GRAPHIC] [TIFF OMITTED] TR12MR99.018

[[Page 12500]]

[GRAPHIC] [TIFF OMITTED] TR12MR99.019

[[Page 12501]]

[GRAPHIC] [TIFF OMITTED] TR12MR99.020

[[Page 12502]]

[GRAPHIC] [TIFF OMITTED] TR12MR99.021

[[Page 12503]]

[GRAPHIC] [TIFF OMITTED] TR12MR99.022

[[Page 12504]]

[GRAPHIC] [TIFF OMITTED] TR12MR99.023

[[Continued on page 12505]]