[Federal Register: March 12, 1999 (Volume 64, Number 48)]
[Rules and Regulations]
[Page 12655-12672]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12mr99-17]

[[pp. 12655-12672]] Assistance to States for the Education of Children With
Disabilities and the Early Intervention Program for Infants and
Toddlers With Disabilities

[[Continued from page 12654]]

[[Page 12655]]

may provide for mediation at an earlier stage, thereby allowing for
informal dispute resolution before or after the State complaint
process, preventing the need for a due process hearing. However,
mediation may not be used to deny or delay the parents' right to due
process. The previous existence of the option to request Secretarial
review was not a substitute for these other procedural rights for
parents. It is not necessary to add a note describing these other
procedural safeguards in Sec. 303.512, as they are adequately described
elsewhere in these regulations.
    The substance of the notes following this section is incorporated
into Sec. 303.512. The language of proposed Note 1 references a
complaint that is also the subject of a due process hearing, but does
not discuss the situation of a complaint that also becomes the subject
of a mediation proceeding. Although the IDEA Amendments of 1997
encourage the use of mediation as a dispute resolution tool, a party's
mediation request should not serve as an excuse for a State to delay
the State complaint resolution timelines. Therefore, a mediation
proceeding should not in and of itself be considered an ``exceptional
circumstance'' under Sec. 303.512(b) so as to extend the 60-day time
limit for resolution of complaints, unless the parties agree to such an
extension.
    Changes: Paragraphs (b) and (c) have been combined into a new
paragraph (b). A new paragraph (c) has been added to clarify that if an
issue in a complaint is the subject of a due process hearing, that
issue (but not those outside of the due process proceeding) would be
set aside until the conclusion of the due process hearing, and that the
hearing decision regarding an issue in a due process hearing would be
binding in a State complaint resolution; however, a public agency's
failure to implement a due process decision would have to be resolved
by the lead agency. The notes following this section have been removed,
and their substance incorporated into Sec. 303.512.

Policies Related to Payment for Services (Sec. 303.520)

    Comment: There were many comments regarding the use of private and
public insurance under Part C. A few commenters supported proposed
Sec. 303.520(d) and (e), as well as corresponding notes. Supporting the
provision in proposed Sec. 303.520(d) on requiring families to use
private insurance only if there are no costs, parents of children with
disabilities described the financial costs and resulting hardship to
them when required to use private insurance to pay for services.
    Many commenters opposed the proposed changes. Regarding the use of
private insurance, many stated that the policies in proposed
Sec. 303.520(d) and Notes 1 and 2 contradict the ``payor of last
resort'' concept underlying Part C. Many commenters referred to the
policy in Sec. 303.527 that Part C Federal funds are to supplement
existing sources of funds, not provide full support, for early
intervention. Commenters stated that prior to Part C, private insurance
would have been the payor of first resort for many early intervention
services, and Medicaid the secondary source of payment.
    Commenters also stressed that, because FAPE does not apply to Part
C, basing Sec. 303.520(d) on the Notice of Interpretation published in
1980 regarding Part B, six years prior to the passage of Part C, is
invalid. Further, in emphasizing the differences in Part B and Part C
policy, commenters noted that under Part B, services are to be provided
at no cost to the parents, whereas under Part C parents may be required
to pay fees for services. Commenters stated that it is contradictory to
allow systems of payment, but prohibit the use of private insurance if
there is a financial cost to families. A few commenters also stated
they believed the Department did not adequately determine whether or
not there is a cost to parents in requiring the use of private
insurance, and that a cost-benefit analysis was not done.
    Commenters were also very concerned about the impact to Part C
programs nationwide if private insurance is more difficult to access;
some stated that proposed Sec. 303.520(d) could cause States to
eliminate their infant and toddler programs entirely. Commenters stated
that because Federal programs like Medicaid and Title V require that
private insurance must be billed first for services covered in whole or
in part by such insurance, if private insurance is not accessible,
Medicaid or Title V will not be accessible. Some commenters suggested
that the use of private insurance under Part C be treated in the same
manner as it is under Title V and Medicaid and in this way remain in
compliance with the mandate of Sec. 303.527.
    In addition, some commenters stated that a policy that allows
parents to deny access to private insurance, thereby requiring the
expenditure of State and Federal funds, has caused private insurance
companies to deny payment for services if Part C potentially covers the
service. Insurance policies also often state that they will not cover
services if deductibles and co-payments are paid for the family instead
of by the family. Commenters also stated that some State statutes
require that private insurance is utilized prior to State funds and the
proposed Sec. 303.520 undermines these statutes.
    Regarding public insurance, commenters stated that parental consent
should not be required for access to public insurance, e.g., Medicaid,
if the child is eligible for the public insurance. The commenters also
argued that States should be given the flexibility to require
application for public health insurance as a condition for receiving
early intervention services, not only to enable Part C access to other
sources of funding, but also to ensure that children have access to
health and medical care.
    Those commenting against proposed Sec. 303.520(e) and Note 3,
regarding proceeds from insurance, stated that such a rule potentially
precludes putting dollars back into an already under funded program.
Commenters stated that under 34 CFR 80.25, States should be required to
return income received from public and private insurance payments to
the Part C program. Further, if the Department does not require such
reinvestment, commenters requested that it at least remain silent on
the issue rather than risk giving States encouragement for using
insurance reimbursements without any restrictions.
    Discussion: As the foregoing comments note, there are many
ramifications to a proposed regulation regarding the use of private and
public insurance under Part C. Therefore, the policy in proposed
Sec. 303.520(d) will not be finalized until more thorough examination
of the issues can be done through the process initiated by the April 14
and August 14, 1998 solicitations for comments, and in light of the
specific Part C statutory language and framework.
    However, with respect to the issue of reimbursements in proposed
Sec. 303.520(e) and Note 3, the reasons underlying the changes made to
the corresponding Sec. 300.142(f) in Part B provide support for the
same changes in Part C. This section clarifies that if a public agency
receives funds from public or private insurance for services under
these regulations, the public agency is not required to return those
funds to the Department or to dedicate those funds for use in the Part
C program, which is how program income must be used, although a public
agency retains the option of using those funds in this program if it
chooses to do so. Reimbursements are similar to refunds,

[[Page 12656]]

credits, and discounts that are specifically excluded from program
income in 34 CFR 80.25(a). The expenditure that is reimbursed is
considered to be an expenditure of funds from the source that provides
the reimbursement. Nothing in IDEA, however, prohibits States from
reinvesting insurance reimbursements back into the Part C program, and
this regulatory provision should not be viewed as discouraging such
practice. Reinvestment of insurance reimbursements in the Part C
program is undeniably a valuable method of helping fund the program;
however, to avoid confusion, it is necessary to clarify by regulation
that no current Federal law requires such reinvestment.
    In addition, proposed paragraph (e) has been revised to clarify
that funds expended by a public agency from reimbursements of Federal
funds will not be considered State or local funds for purposes of
Sec. 303.124. If Federal reimbursements were considered State and local
funds for purposes of the supplanting prohibition in Sec. 303.124 of
these regulations, States would experience an artificial increase in
their base year amounts and would then be required to maintain a
higher, overstated level of fiscal effort in the succeeding fiscal
year.
    Changes: Proposed Sec. 303.520(d), and Notes 1 and 2, are removed;
proposed Sec. 303.520(e) is redesignated as Sec. 303.520(d) with
changes to conform to Sec. 300.142(f); and Note 3 is incorporated into
the text of Sec. 303.520(d).

(Note: This attachment will not be codified in the Code of Federal
Regulations)

Attachment 2--Executive Order 12866

    These regulations have been reviewed in accordance with
Executive Order 12866. Under the terms of the order the Secretary
has assessed the potential costs and benefits of this regulatory
action.

Summary of Public Comments

    Many commenters expressed concern about the costs and burden of
complying with requirements incorporated into the Assistance to
States for the Education of Children with Disabilities, Notice of
Proposed Rulemaking (NPRM). Commenters complained about the cost of
implementing various statutory requirements incorporated into the
NPRM and identified a variety of requirements in the NPRM not
required by the statute that would increase administrative costs for
school districts. Some commenters talked about the need to employ
additional staff to comply with new requirements and others talked
about the additional paperwork required. Some commenters expressed
concern about the effect of the requirements on the ability of
schools to provide instruction to nondisabled children and the
difficulty teachers and administrators would have in implementing
the proposed regulations. Very few commenters specifically addressed
the Department's analysis of the benefits and costs of the statutory
and non-statutory changes incorporated into the proposed
regulations.
    One commenter stated that the analysis of the impact was
inadequate and that the cost to school systems did not appear to be
taken seriously. However, this commenter did not provide comments on
the cost assumptions or analysis of specific items in the NPRM.
    One commenter questioned the discussion in the NPRM that
indicated a possible reduction of personnel needed to conduct
evaluations by 25 to 75 percent, and suggested that additional
meetings would probably be required for 18 to 24 months until the
appropriate assessments can be conducted at annual reviews and that
additional personnel would be needed. Another commenter agreed that
the changes related to the conduct of the triennial reevaluation may
reduce some paperwork, but noted that savings would not be realized
immediately for individual children because of the need for baseline
data. One commenter stated that it has taken the evaluation team one
hour just to decide whether there is a need to gather additional
information.
    A few commenters provided specific information about the cost
and time involved to comply with some of the requirements that were
analyzed in the NPRM. For example, one commenter pointed out that it
would cost his district $18,000 to provide for substitute teachers
so regular education teachers could attend 900 IEP meetings lasting
one to two hours--or $20 per meeting. Another commenter stated that
the cost of providing substitute teachers would be an enormous
burden for school districts, noting that the average IEP meeting
takes 1.5 to 2 hours.
    The Department also received a few comments on the cost of
providing education to children who have been suspended or expelled.
One commenter said that the projections do not take into account the
expense of providing homebound services, alternative placements or
access to the general curriculum. Another commenter agreed that the
estimates of $29-$70 were too low and pointed out that an out-of-
district day placement in Vermont runs about $20,000-$25,000 per
school year.
    All of these comments were considered in conducting the analysis
of the benefits and costs of the final regulations. All of the
Department's estimates and the assumptions on which they are based
are described below.

Summary of Potential Benefits and Costs

Benefits and Costs of Statutory Changes

    For the information of readers, the following is an analysis of
the costs and benefits of the most significant statutory changes
made by IDEA Amendments of 1997 that are incorporated into the
Assistance to States for the Education of Children with Disabilities
regulations. In conducting this analysis, the Department examined
the extent to which changes made by the IDEA Amendments of 1997
added to or reduced the costs for school districts and others in
relation to the costs of implementing the IDEA prior to the
enactment of the IDEA Amendments of 1997. Based on this analysis,
the Secretary has concluded that the statutory changes included in
this regulation will not, on net, impose significant costs in any
one year, and may result in savings to State and local educational
agencies. An analysis of specific provisions follows:

Participation in Assessments

    Section 300.138 incorporates statutory requirements relating to
the inclusion of children with disabilities in general State and
district-wide assessments and the conduct of alternate assessments
for children who cannot be appropriately included in general
assessments.
    Although children with disabilities have not been routinely
included in State and district-wide assessments, the requirement to
include children with disabilities in assessment programs in which
they can be appropriately included, with or without accommodations,
does not constitute a change in Federal law. Because this statutory
change is a clarification of, not a change in, the law, no cost
impact is assigned to this requirement, which is incorporated in
Sec. 300.138(a) requiring the participation of children with
disabilities in general assessments.
    However, States were not previously required to conduct
alternate assessments for children who could not participate in the
general assessments. The statutory requirement to develop and
conduct alternate assessments beginning July 1, 2000, therefore,
imposes a new cost for States and districts.
    The impact of this change will depend on the extent to which
States and districts administer general assessments, the number of
children who cannot appropriately participate in those assessments,
the cost of developing and administering alternate assessments, and
the extent to which children with disabilities are already
participating in alternate assessments.
    The analysis of the impact of this requirement assumes that
alternate tests would be administered to children with disabilities
on roughly the same schedule as general assessments. This schedule
will vary considerably from State to State and within States,
depending on their assessment policy. In most States, this kind of
testing does not begin before the third grade. In many States and
districts, general assessments are not administered to children in
all grades, but rather at key transition points (for example, in
grades 4, 8, and 11).
    The extent to which States and districts will need to provide
for alternate assessments will also vary depending on how the
general assessments are structured. Based on the experience of
States that have implemented alternate assessments for children with
disabilities, it is estimated that about one to two percent of the
children in any age cohort will be taking alternate assessments.
    Based on this information, it is estimated that about 18 to 36
million of the children who are expected to be enrolled in public
schools in school year 2000-2001 will be candidates for general
assessments. Of these, about 200,000 to 700,000 will be children

[[Page 12657]]

with disabilities who may require alternate assessments.
    The costs of developing and administering these assessments are
also difficult to gauge. In its report Educating One and All, the
National Research Council states that the estimated costs of
performance-based assessments programs range from less than $2 per
child to over $100 per student tested. The State of Maryland has
reported start-up costs of $191 per child for testing a child with a
disability and $31 per child for the ongoing costs of administering
an alternate assessment.
    The cost impact of requiring alternate assessments will be
reduced to the extent that children with disabilities are already
participating in alternate assessments. Many children with
disabilities are already being assessed outside the regular
assessment program in order to determine their progress in meeting
the objectives in their IEPs. In many cases, these assessments might
be adequate to meet the new statutory requirement.
    Based on all of this information, the cost impact of this
statutory change is not likely to be significant, and will be
justified by the benefits of including all children in
accountability systems.

Incidental Benefits

    The change made by section 613(a)(4) of the Individuals with
Disabilities Education Act (IDEA), incorporated in Sec. 300.235,
generates savings by reducing the time that would have been spent by
special education personnel on maintaining records on how their time
is allocated in regular classrooms among children with and without
disabilities.
    To calculate the impact of this change, one needs to estimate
the number of special education personnel who will be providing
services to children with and without disabilities in regular
classrooms and the amount and value of time that would have been
required to document their allocation of time between disabled and
nondisabled children.
    Based on State-reported data on placement, it appears that about
4.4 million children will spend part of their day in a regular
classroom this school year. States reported employing about 404,000
teachers and related services personnel in total for school year
1995-96. The statutory change will eliminate unnecessary paperwork
for those special education personnel who have been working in the
regular classroom and documenting their allocation of time, and will
encourage the provision of special education services in the regular
classroom--a change that will benefit children with disabilities.

Individualized Education Programs

    The final regulations incorporate a number of statutory changes
in section 614(d) that relate to the IEP process and the content of
the IEP. With the exception of one requirement (the requirement to
include a regular education teacher on the IEP team), it has been
determined that, on balance, these changes will not increase the
cost of developing IEPs. Moreover, all the changes will produce
significant benefits for children and families. Key changes include:
    Clarifying that the team must consider a number of special
factors to the extent they are applicable to the individual child.
The statutory changes that are incorporated in Sec. 300.346 do not
impose a new burden on school districts because the factors that are
listed should have been considered, as appropriate, under the IDEA
before the enactment of IDEA Amendments of 1997. These include:
behavioral interventions for a child whose behavior impedes
learning, language needs for a child with limited English
proficiency, Braille for a blind or visually impaired child, the
communication needs of the child, and the child's need for assistive
technology.
    Strengthening the focus of the IEP on access to the general
curriculum in statements about the child's levels of performance and
services to be provided. The statutory changes that are incorporated
in Sec. 300.347 relating to the general curriculum should not be
burdensome because the changes merely refocus the content of
statements that were already required to be included in the IEP on
enabling the child to be involved in and progress in the general
curriculum.
    Requiring an explanation of the extent to which a child will not
be participating with nondisabled children. This statutory
requirement, which is incorporated in Sec. 300.347(a)(4), does not
impose a burden because it replaces the requirement for a statement
of the extent to which the child will be able to participate in
regular educational programs.
    Requiring the IEP to include a statement of any needed
modifications to enable a child to participate in an assessment,
and, in cases in which a child will not be participating in a State
or district-wide assessment, to include a statement regarding why
the assessment is not appropriate and how the child will be
assessed. This statutory requirement, which is incorporated in
Sec. 300.347(a)(5), will require some additional information to be
included in the IEPs for some children, but will not impose a
significant burden on schools. Each year an estimated 1.6 to 3.2
million children with disabilities are in grades in which schools
are administering State or district-wide assessments. Prior to the
enactment of the IDEA Amendments of 1997, Federal law required the
participation of children with disabilities in general assessments
with accommodations, as needed. Data indicate that about 50 percent
of children with disabilities have been participating in State and
local assessments. Many of these children are receiving needed
modifications and their IEPs currently include information about
those modifications. The requirement for statements in the IEP about
how children will be assessed will affect IEPs for children who
cannot participate in the general assessments and who are entitled
to participate in alternate assessments (estimated to be 200,000 to
700,000 children, beginning in school year 2000-2001).
    Allowing the IEP team to establish benchmarks rather than short-
term objectives in each child's IEP. There is considerable variation
across States, districts, schools, and children in the amount of
time spent on developing and describing short-term objectives in
each child's IEP. While it would be difficult to estimate the impact
of this statutory change, contained in Sec. 300.347(a)(2), it
clearly affords schools greater flexibility and an opportunity to
reduce paperwork in those cases in which the team has previously
included unnecessarily detailed curriculum objectives in the IEP
document. This change potentially reduces the burden in preparing
IEPs for 6 million children each year.
    Prior to the enactment of the IDEA Amendments of 1997, IDEA
required the participation of the ``child's teacher,'' typically
read as the child's special education teacher, but it did not
explicitly require a regular education teacher. The IDEA Amendments
of 1997, incorporated in Sec. 300.344 (a)(2) and (a)(3) and
Sec. 300.346(d) of the final regulations, require the participation
of the child's special education teacher and a regular education
teacher if the child is or may be participating in the regular
education classroom, while acknowledging that a regular education
teacher participates in developing, reviewing, and revising the
child's IEP ``to the extent appropriate.''
    The impact of this change will be determined by the number of
children with disabilities who are or who may be participating in
the regular classroom in a given year, the number and length of IEP
meetings, the extent of the regular education teacher's
participation in them, the opportunity cost of the regular education
teacher's participation, and the extent to which regular education
teachers are already attending IEP meetings.
    State-reported data for school year 1994-1995 indicates that
about 3.9 million children with disabilities aged 3 through 21 spend
at least 40 percent of their day in a regular classroom (children
reported as placed in regular classes and resource rooms). The
participation of the regular education teacher would be required for
all of these children since these children are spending at least
part of their day in the regular classroom.
    State data also show that an additional 1.2 million children
were served in separate classrooms. A regular education teacher's
participation will clearly be required for those children in
separate classes who are spending part of their school day in
regular classes (less than 40 percent of their day). Other children
may be participating with nondisabled children in some activities in
the same building. While a child's individual needs and prospects
will determine whether a regular education teacher would need to
attend a child's IEP meeting in those cases, some proportion of
these children are children for whom participation in regular
classrooms is a possibility, therefore requiring the participation
of a regular education teacher.
    Although the prior statute did not require the participation of
a regular education teacher, it is not uncommon for States or school
districts to require a child's regular education teacher to attend
IEP meetings.
    Based on all of this information, it is estimated that the
participation of a regular education teacher may be required in an

[[Page 12658]]

additional 3.9 to 5.3 million IEP meetings in the next school year.
    While the opportunity costs of including a regular education
teacher in these meetings will be significant because of the number
of meetings involved, these costs will be more than justified by the
benefits to be realized by teachers, schools, children, and
families. Involving the regular education teacher in the development
of the IEP will not only provide the regular education teacher with
needed information about the child's disability, performance, and
educational needs, but will help ensure that a child receives the
supports the child needs in the regular classroom, including
services and modifications that will enable the child to progress in
the general curriculum.

Parentally-Placed Students in Private Schools

    This statutory change, which is incorporated in Sec. 300.453,
would require school districts to spend a proportionate amount of
the funds received under Part B of IDEA on services to children with
disabilities who are enrolled by their parents in private elementary
and secondary schools.
    The change does not have an impact on most States because the
statute does not represent a change in the Department's
interpretation of the law as it was in effect prior to the enactment
of the IDEA Amendments of 1997. However, in four Federal circuits,
the courts have concluded that, without the statutory change, school
districts generally were responsible for paying for the total costs
of special education and related services needed by students with
disabilities who have been parentally-placed in private schools.
Therefore, this change does produce potential savings for school
districts in those 19 States affected by these court decisions. The
States are: Arkansas, Colorado, Connecticut, Iowa, Kansas,
Louisiana, Minnesota, Mississippi, Missouri, New Mexico, Nebraska,
New York, North Dakota, Oklahoma, South Dakota, Texas, Utah,
Vermont, and Wyoming.
    To determine the impact of the change, one needs to estimate the
number of parentally-placed children with disabilities that LEAs in
these States would have been required to serve, but for this change.
Using private school enrollment data for school year 1995-1996 and
projected growth rates, it is estimated that approximately 1.5
million students will be enrolled in private schools in these 19
States in this school year.
    There is no reliable data on the number of children with
disabilities who are parentally-placed in private schools. However,
if one assumes that children with disabilities are found in private
schools in the same proportion as they are found in public schools
in these States, or at least in the same proportion that children
with speech impairments and learning disabilities are found in
public schools, one would estimate that there are between 80,000 and
120,000 children with disabilities who are parentally-placed in
private schools.
    If one assumes that, on average, the cost of providing a free
appropriate education to these students would be approximately equal
to the average excess costs for educating students with
disabilities--$7,184 per child for school year 1998-1999--the costs
of providing FAPE to these children would be significant.
    Under the statutory change, LEAs schools would still be required
to use a portion of the Federal funds provided under Part B of IDEA
to provide services to parentally-placed children--an amount
proportionate to the percentage of the total population of children
with disabilities who are parentally-placed--and to carry out
required child find and evaluation activities. Therefore, in
estimating the impact of this statutory change, one needs to
subtract the cost of these public school obligations from the total
projected savings. One would also need to take into account the fact
that some of the costs that would have been covered by the school
districts will simply shift to other sources such as the private
schools or the families of the children. However, even if one
discounts the amount of projected savings to the public sector by 50
percent to take into possible cost-shifting, the total net savings
attributable to the change in the law for these 19 States is
expected to be very significant.

Mediation

    Section 300.506 reflects the new statutory provisions in section
615(e) of IDEA, which require States to establish and implement
mediation procedures that would make mediation available to the
parties whenever a due process hearing is requested. IDEA specifies
how mediation is to be conducted.
    The impact of this change will depend on the following factors:
the number of due process hearings that will be requested, the
extent to which the parties to those hearings will agree to
participate in mediation, the cost of mediation, the extent to which
mediation would have been used in the absence of this requirement to
resolve complaints, and the extent to which mediation obviates the
need for a due process hearing.
    Data for previous years suggests one can expect about one
complaint for every 1000 children served or about 6,000 requests for
due process hearings during this school year. This projection
probably overstates the number of complaints because it does not
take into account the effect of the IDEA Amendments of 1997, which,
on balance, can be expected to result in better implementation of
the law and higher parental satisfaction with the quality of
services and compliance with IDEA.
    Many of these complaints would have been resolved through
mediation even without the statutory change. Over 39 States had
mediation systems in place prior to the enactment of the IDEA
Amendments of 1997. Data for 1992 indicate that, on average, States
with mediation systems held mediations in about 60 percent of the
cases in which hearings were requested. Nevertheless, the number of
mediations is expected to increase even in States that already have
mediation systems. Although most States report using mediation as a
method of resolving disputes, there have been considerable
differences in its implementation and use. In general, the extent to
which mediation has been used in States probably depends on the
extent to which parents and others were informed of its availability
and possible benefits in resolving their complaints and the extent
to which the mediator was perceived as a neutral third-party. The
changes made by the IDEA Amendments of 1997 are expected to
eliminate some of the differences in State mediation systems that
have accounted for its variable use and effectiveness.
    The benefits of making mediation more widely available are
expected to be substantial, especially in relation to the costs.
States with well-established mediation systems conduct considerably
fewer due process hearings. For example, in California, hearings
were held in only 5 and 7 percent of the cases in which they were
requested in 1994 and 1995, respectively. The average mediation
appears to cost between $350 and $1000, while a due process hearing
can cost tens of thousands of dollars. Based on the experience that
many different States have had with mediation, it is estimated that
hundreds of additional complaints will be resolved through
mediation. The benefits to school districts and benefits to families
are expected to be substantial.

Discipline

    The final regulations (Secs. 300.121, 300.122, 300.520, and
300.521) incorporate a number of significant changes to IDEA that
relate to the procedures for disciplining children with
disabilities.
    Some of the key changes contained in section 615(k) afford
school districts additional tools for responding to serious
behavioral problems, and in that regard, do not impose any burdens
on schools or districts.
    The statutory change reflected in Sec. 300.520(a)(2) would give
school officials the authority to remove children who engaged in
misconduct involving weapons or illegal drugs. Under prior law,
school officials had the authority to remove children who brought
guns, but could not remove children who engaged in misconduct
involving other weapons or illegal drugs over the objection of their
parents unless they prevailed in a due process proceeding or
obtained a temporary restraining order from a court. The statutory
change reflected in Sec. 300.521 would give school officials the
option of seeking relief from a hearing officer rather than a court
in the case of a child the school is seeking to remove because the
child poses a risk of injury to the child or others. In both cases,
the child would continue to receive services in an alternative
educational setting that is required to meet certain standards. It
is difficult to assess the impact of either of these statutory
changes on schools because there is virtually no information
available on the extent to which parents disagree with districts
that propose to remove these children. This new authority would only
be used in those cases. Nevertheless, the benefits of this authority
appear to be substantial insofar as the changes help schools provide
for a safe environment for all children, while ensuring that any
children with disabilities who are moved to an alternative setting
continue to receive the services they need.
    The statutory change reflected in Sec. 300.520(b) will require
school officials to

[[Page 12659]]

convene the IEP team in certain cases in which removal is
contemplated to develop an assessment plan and behavioral
interventions (or that the IEP team members review the child's
behavioral intervention plan if there is one). The impact of this
requirement is discussed below as part of the discussion of non-
statutory changes.
    The requirement in section 612(a)(1)(A), incorporated in
Sec. 300.121, that all children aged 3 through 21 must have made
available to them a free appropriate public education, including
children who have been suspended or expelled from school, does not
represent a change in the law as the law was interpreted by the
Department prior to the enactment of the IDEA Amendments of 1997. It
clarifies the Department's long-standing position that the IDEA
requires the continuation of special education and related services
even to children who have been expelled from school for conduct that
has been determined not to be a manifestation of their disability.
    However, this statutory change does represent a change in the
law in two circuits in which Federal Circuit courts disagreed with
the Department's interpretation of the law--the 4th and 7th
Circuits. The affected States are: Virginia, Maryland, North
Carolina, South Carolina, West Virginia, Illinois, Indiana, and
Wisconsin.
    To assess the impact of this change, one needs to estimate the
extent to which students would have been excluded from education,
but for this change in the statute, and the cost of providing the
required services to these students during the period they are
expected to be excluded from their regular school due to a long-term
suspension or expulsion.
    There is a paucity of data available on disciplinary actions,
and very little for the States in the 4th and 7th Circuits. Using
data collected by the Office for Civil Rights for school year 1994,
it is estimated that approximately 60,000 students with disabilities
aged 6 through 21 will be suspended during this school year in the
affected States. But to determine the impact of the prohibition on
ceasing services in these States, one needs to know the number of
suspensions each student received and their duration--information
that is not provided by OCR data. However, more detailed data
compiled by a few States would suggest that a relatively small
percentage of students with disabilities who are suspended (no more
than about 15 percent) receive suspensions of greater than 10 days
at a time and a much smaller number of students are expelled.
    Little information is available on the cost of providing
services in an alternative setting for a student who has been
suspended temporarily or expelled from school. However, it is
reasonable to assume that the average cost per day of providing
services in an alternative setting probably would be no less than
the average daily total costs of serving children with disabilities,
which is about $75 per day. Although costs will vary considerably
depending on the needs of the individual student and the type of
alternative setting, costs are likely to be higher on average
because districts are unlikely to be able to achieve the same
economies of scale in providing services to small numbers of
children in alternative settings as they do in serving children
generally.
    While this statutory change will have a cost impact on the
States in the 4th and 7th Circuits, the costs for these States will
be justified by the benefits of continuing educational services for
children who are the least likely to succeed without the help they
need.
    The statutory change reflected in Sec. 300.122 could generate
potential savings for all States by removing the obligation to
provide educational services to individuals 18 years old or older
who were incarcerated in adult prisons and who were not previously
identified as disabled. No information is available on the number of
prisoners with disabilities who were not previously identified.

Triennial Evaluation

    The previously existing regulations required a school district
to conduct an evaluation of each child served under IDEA every three
years to determine, among other things, whether the child is still
eligible for special education. The IDEA Amendments of 1997 change
this requirement to reduce unnecessary testing and therefore reduce
costs. Specifically, section 614(c) of IDEA, incorporated in
Sec. 300.533, allows the evaluation team to dispense with additional
tests to determine the child's continued eligibility if the team
concludes this information is not needed. However, these tests must
be conducted if the parents so request.
    The savings resulting from this change will depend on the
following factors: the number of children for whom an evaluation is
conducted each year to comply with the requirement for a triennial
evaluation, the cost of the evaluation, and an estimate of the
extent to which testing will be reduced because it is determined by
the IEP team to be unnecessary and is not requested by the parents.
    Based on an analysis of State-reported data, it is estimated
that approximately 1.5 million children will be eligible for
triennial evaluations in school year 1998-1999 or roughly 25 percent
of the children to be served.
    The IDEA Amendments of 1997 make it clear that districts no
longer need to conduct testing to determine whether a child still
has a disability, if the evaluation team determines this information
is not needed and the parent agrees. However, while the regulation
permits the team to dispense with unneeded testing to determine
whether the child still has a disability, the team still has an
obligation to meet to review any existing evaluation data and to
identify what additional data are needed to determine whether the
child is still eligible for special education and related services,
the present levels of performance of the child, and whether any
modifications in the services are needed. In view of these
requirements, it is assumed that there will be some cost associated
with conducting the triennial evaluation even in those cases in
which both the team and the parents agree to dispense with testing.
It is estimated that the elimination of unnecessary testing could
reduce the opportunity costs for the personnel involved in
conducting the triennial evaluation by as much as 25 to 75 percent.
While there is no national data on the average cost of conducting a
triennial evaluation under the current regulations, it is assumed
that a triennial evaluation would require the participation of
several professionals for several hours and cost as much as $1000.
    These savings would be somewhat mitigated by the increased costs
associated with the new statutory requirement to obtain parental
consent before conducting a reevaluation. Under the final
regulations, parental consent would be required if a test is
conducted as part of a reevaluation, for example, or when any
assessment instrument is administered as part of a reevaluation.
    If one assumes, for purposes of this analysis, that savings are
achievable in roughly half of the triennial evaluations that will be
conducted and that elimination of unnecessary testing could reduce
personnel costs by at least 25 percent, one would project
substantial savings for LEAs that are attributable to this change.

Benefits and Costs of Proposed Non-statutory Regulatory Provisions

    The following is an analysis of the benefits and costs of the
nonstatutory final regulatory provisions that includes consideration
of the special effects these changes may have for small entities.
    The final regulations primarily affect State and local
educational agencies, which are responsible for carrying out the
requirements of Part B of IDEA as a condition of receiving Federal
financial assistance under IDEA. Some of the proposed changes also
affect children attending private schools and consequently
indirectly affect private schools.
    For purposes of this analysis as it relates to small entities,
the Secretary has focused on local educational agencies because
these regulations most directly affect local school districts. The
analysis uses a definition of small school district developed by the
National Center for Education Statistics for purposes of its recent
publication, ``Characteristics of Small and Rural School
Districts.'' In that publication, NCES defines a small district as
``one having fewer students in membership than the sum of (a) 25
students per grade in the elementary grades it offers (usually K-8)
and (b) 100 students per grade in the secondary grades it offers
(usually 9-12)''. Using this definition, approximately 34 percent of
the Nation's school districts would be considered small and serve
about 2.5 percent of the Nation's students. NCES reports that
approximately 12 percent of these students have IEPs.
    Both small and large districts will experience economic impacts
from this rule. Little data are available that would permit a
separate analysis of how the changes affect small districts in
particular.
    This analysis assumes that the effect of the final regulations
on small entities would be roughly proportional to the number of
children with disabilities served by those districts.

[[Page 12660]]

    For school year 1998-1999, we estimate that approximately 47
million children will be enrolled in public elementary and secondary
schools. Using the NCES definition and assuming all districts grew
at the same rate between school year 1993-1994 and 1998-1999, the
Secretary estimates that approximately 1.18 million children are
enrolled in small districts. Applying the NCES estimate of 12
percent, we estimate that these districts serve approximately
140,000 children with disabilities of the 6 million children with
disabilities served nationwide.
    There are many provisions in the final regulations that are
expected to result in economic impacts--both positive and negative.
This analysis estimates the impact of those non-statutory provisions
that were not required by changes that were made in the statute by
the IDEA Amendments of 1997. In conducting this analysis, the
Department estimated the additional costs or savings for school
district attributable to these provisions in relation to the costs
of implementing the statute, as amended by the IDEA Amendments of
1997.
    The following is a summary of the estimated economic and non-
economic impact of the key changes in this final regulation:
    Section 300.2--Applicability to public agencies--The regulations
add charter schools to the list of entities to which the regulations
apply. Language is also added in paragraph (b)(2) regarding the
applicability of the regulations to each public agency that has
direct or delegated authority to provide special education and
related services in a State receiving Part B funds, regardless of
that agency's receipt of Part B funds. Neither change imposes any
additional burden; both were included for clarity.
    Section 300.7--Child with a disability--The final regulations
add a new paragraph (a)(2) to clarify that if a child has one of the
disabilities listed in paragraph (a), but only needs a related
service and not special education, the child is not a ``child with a
disability'' under Part B, unless the service is considered special
education under State standards. This change is not likely to affect
the number of children eligible for services under this part
substantially because this clarification reflects a longstanding
interpretation of the Department.
    Section 300.7(c)(1)--Autism--The final regulations amend the
definition of ``autism'' to clarify that if a child manifests
characteristics of this disability category after age 3, the child
could be diagnosed as having ``autism'' if the other criteria are
satisfied. This clarification does not impose any additional burden
on LEAs.
    Section 300.7(c)(9)--Attention deficit disorder--The final
regulations amend the definition of ``other health impairment'' to
add ADD/ADHD to the list of conditions that could render a child
eligible for services under this part. The language relating to
other health impairments is also modified to clarify that limited
strength, vitality or alertness includes a child's heightened
alertness to environmental stimuli that results in limited alertness
with respect to the educational environment. This change will not
increase costs for LEAs because it reflects the Department's
longstanding policy interpretation regarding the eligibility of
children with ADD/ADHD.
    Section 300.8--Definition of day--The final regulations add
definitions of ``day,'' ``business day,'' and ``school day,'' terms
that are used in the statute. Including these definitions will
reduce confusion about the meaning of these terms and will not
impose costs. The definition of ``day'' represents the Department's
longstanding interpretation of that term. In defining ``business
day,'' the Department used a commonly understood measure of time so
that both parents and school officials could easily understand
timelines established in the regulations.
    Section 300.10--Definition of educational service agency--The
final regulations clarify that the term ``educational service
agency'' includes agencies that meet the definition of
``intermediate educational units'' under prior law. This change does
not impose any costs on States.
    Section 300.18--Charter schools as LEAs--The final regulations
amend the definition of an ``LEA'' to include public charter schools
established as LEAs under State law. This change, which adds
clarity, does not impose any costs.
    Section 300.19--Native language--The final regulations expand
the definition of ``native language'' to clarify that in all direct
contact with the child, communication must be in the language
normally used by the child and not the parents if there is a
difference between the two, and that for individuals with deafness
or blindness, or for individuals with no written language, the mode
of communication would be that normally used by the individual. This
clarification does not impose any additional costs for LEAs beyond
what Federal law would already require.
    Section 300.20--Foster parents--The final regulations clarify
that foster parents may act as parents unless State law prohibits
such practice. This provision does not impose any costs. The
definition is intended to promote the appropriate involvement of
foster parents consistent with the best interests of the child by
ensuring that those who best know the child are involved in
decisions about the child's education. To the extent there is any
economic impact, it should reduce costs on States and local agencies
that they would otherwise incur for training and appointing
surrogate parents for children whose educational interests could
appropriately be represented by their foster parents.
    Section 300.22--Definition of public agency--The final
regulations add public charter schools to the list of public
agencies. This change does not impose any additional costs on States
as Federal law already requires States to be ultimately responsible
for ensuring FAPE for all children with disabilities in public
schools in the State.
    Section 300.24--Related services--The final regulations modify
the definition of occupational therapy to make clear that it
encompasses services provided by a qualified occupational
therapist--a clarification that does not impose any additional
costs. The final regulations revise the definition of parent
counseling and training to include helping parents to acquire the
necessary skills that will allow them to support the implementation
of their child's IEP or IFSP.
    Section 300.26(b)(3)--Definition of ``specially-designed
instruction''--Paragraph (b)(3) defines ``specially-designed
instruction'' in order to give more definition to the term ``special
education,'' which is defined in this section as ``specially-
designed instruction.'' The definition is intended to clarify that
the purpose of adapting the content, methodology, or delivery of
instruction is to address the child's unique needs and to ensure
access to the general curriculum. This provision increases the
potential of children with disabilities to participate more
effectively in the general curriculum.
    Section 300.26--Travel training--The final regulations amend the
definition of ``special education'' to include a reference to travel
training in paragraph (a)(2) and a definition of travel training in
paragraph (b)(4)--clarifications that do not impose any additional
costs.
    Section 300.121--Free appropriate public education--The final
regulations add language to clarify that the responsibility to
provide FAPE beginning no later than a child's third birthday means
that an IEP or IFSP must be in effect by that date, and that a child
turning three during the summer must receive services if the IEP
team determines that the child needs extended school year services.
This language, which represents the Department's longstanding
interpretation of the statute, does not impose any additional burden
on LEAs. The final regulations also include language in paragraph
(e) to clarify that the group determining a child's eligibility must
make an individualized determination as to whether a child who is
progressing from grade to grade needs special education and related
services--another clarification that does not impose any additional
costs for LEAs.
    Section 300.121--FAPE for Children suspended or expelled from
school--Section 300.121 incorporates the statutory provision that
the right to a free appropriate public education extends to children
with disabilities who have been suspended or expelled from school.
Paragraph (d)(1) clarifies that a public agency need not provide
services to a child who has been suspended for fewer than 10 days in
a school year if services are not provided to nondisabled children.
Paragraph (d)(2) describes when and to what extent services must be
provided to children who have been removed from their current
educational placement for more than 10 school days in a given school
year. Paragraph (d)(2) provides that the public agency must provide
services to the extent necessary to enable the child to
appropriately progress in the general curriculum and advance toward
achieving the goals in the child's IEP if the suspension is for 10
school days or less or is for behavior that is not a manifestation
of the child's disability. In the case of suspensions of 10 days or
fewer, school personnel, in consultation with the special education
teacher, determine if, and to what extent services must be provided
to a child who has been suspended for more than 10 days in a

[[Page 12661]]

given school year. In the case of suspensions of more than 10 days,
this determination would be made by the IEP team. Paragraph (d)(2)
also refers to the statutory standard for services for children
removed for misconduct involving weapons, drugs, and substantial
likelihood of injury.
    In determining whether and how to regulate on this issue, the
Department considered the impact of various alternatives on small
and large school districts and children with disabilities and their
families, especially the adverse educational impact on a child who
has been suspended for more than a few days and on more than one
occasion. The final regulations strike an appropriate balance
between the educational needs of students and the burden on schools.
Schools will be relieved of the potential obligation to provide
services for a significant population of children who are briefly
suspended a few times during the course of the school year, but
required to consider the educational impact of suspensions on
children with chronic or more serious behavioral problems who are
repeatedly excluded from school.
    The cost of this regulation depends on how the statutory
requirement to provide services to children who have been suspended
or expelled is interpreted. If the statute is read to require
schools to provide services to all children who are suspended for
one or more school days, this regulation would result in substantial
savings for school districts. If the statute is read to give schools
the flexibility not to provide services to children suspended for
fewer than 10 school days at a time, regardless of the cumulative
effect, as long as there is no pattern of exclusion that warrants
treating an accumulation that exceeds 10 school days as a change in
placement, this regulation would impose some additional costs.
    Based on data collected by the Office for Civil Rights for school
year 1992 and data on the number of children who are currently being
served under IDEA, it is estimated that approximately 300,000 children
with disabilities will be suspended for at least one school day during
this school year. Many of these children will be suspended on more than
one occasion for one or more days. Because of the differences among the
children who are expected to be suspended and the range of their
service needs, the costs of and the burden associated with providing
individualized services in an alternative setting to every child who is
suspended for one or more school days would be substantial. Limiting
the requirement to children who have been suspended for more than 10
days in the school year would reduce costs substantially. Based on data
from a few selected States, it appears that no more than about 45,000
of these 300,000 children with disabilities will be suspended for more
than 10 days in a school year. Of these, an estimated 15,000 are
expected to be suspended at least once for more than 10 consecutive
days.
    Section 300.122(a)(3)--Exception to right to FAPE (Graduation)--
Paragraph (a)(3) provides that a student's right to FAPE ends when
the student has graduated with a regular high school diploma, but
not if the student graduates with some other certificate, such as a
certificate of attendance, or a certificate of completion. The final
regulations further clarify that graduation constitutes a change in
placement, requiring written prior notice. Given the importance of a
regular high school diploma for a student's post-school experiences,
including work and further education, making it clear that the
expectation for children with disabilities is the same as for
nondisabled children provides a significant benefit to children with
disabilities. The impact of this change, however, is difficult to
assess. Many States, including most of those that report a high
number of children with disabilities leaving school with a
certificate of completion or some other certificate that is not a
regular high school diploma, indicate that students with
disabilities have the right to continue to work to earn a regular
high school diploma after receiving that certificate. Little
information is available to evaluate how many students who now can
return to school after receiving some other certificate of
completion do so, or how many would return to school if States are
required to adopt a policy that clearly indicates that students who
exited with a certificate have the right to continued services.
Several State directors of special education indicated that
relatively few students who now can return, do so. The cost of
serving even 10,000 of the 25,000 students who exit each year with
certificates would be substantial.
    Section 300.125--Child find--The final regulations clarify the
link between child find under Parts B and C. The final regulations
also add language clarifying that the State's child find
responsibilities extend to highly mobile children such as the
homeless and migrant children and children progressing from grade to
grade if they are suspected of having disabilities and in need of
special education. None of these changes impose any requirements
beyond what the statute has been interpreted to require.
    Section 300.132(c)--LEA participation in transition planning
conference--The regulations require an LEA representative to
participate in planning conferences arranged by the lead agency for
children who are receiving services under Part C and may be eligible
for preschool services under Part B. This requirement does not
result in significant costs for school districts. Only about 100,000
children age out of early intervention services each year and in
many cases, LEA representatives have been participating in the
transition planning conferences for these children, although they
have not been required to do so.
    Section 300.136--Personnel standards--The final regulations add
new paragraphs (b)(3) and (b)(4) to clarify that a State is not
required to establish any particular academic degree requirement for
entry-level employment of personnel in a particular profession or
discipline and that a State may modify its standard if it has only
one entry-level academic degree requirement. This language clarifies
the extent of flexibility afforded to States in meeting IDEA's
personnel standards requirement and therefore may reduce costs for
States and LEAs. The final regulations also add language in a new
paragraph (g)(2) that explains that the State option relating to
allowing LEAs to use the most qualified personnel available can be
invoked even if a State has reached its established date for a
specific profession--another clarification regarding the flexibility
that is available to States. Language is added in a new paragraph
(g)(3) that clarifies that a State that continues to experience
shortages must address them in its CSPD.
    Section 300.139--Reporting on assessments--The final regulations
require SEA reports on wide-scale assessments to include children
with disabilities in aggregated results for all children to better
ensure accountability for results for all children. This regulation
is expected to have a minimal impact on the cost of reporting
assessment results. It could increase the number of data elements
reported depending on whether States continue to report trend data
for a student population that does not include children with
disabilities to the extent required by Sec. 300.138. There will be
no impact on school districts since this requirement applies to
reports that are prepared by the State educational agency.
    Section 300.142--Medicaid reimbursement--The final regulations
add language to paragraph (b)(1) specifying that a noneducational
public agency may not disqualify an eligible service for Medicaid
reimbursement because that service is provided in a school context.
A new paragraph (b)(3) has been added regarding the responsibility
of State agencies and LEAs to provide all services described in a
child's IEP in a timely manner regardless of which agency pays for
the services. These clarifications of statutory requirements
relating to interagency coordination between educational and
noneducational agencies do not impose any additional costs.
    Section 300.142(e)--Use of public insurance--Paragraph (e)
describes the circumstances under which a public agency may access a
parent's Medicaid or other public insurance to pay for required
services. Paragraph (e)(2) provides that a public agency may not
require parents to sign up for public insurance in order for their
child to receive FAPE. Paragraph (e)(2) further clarifies that a
public agency may not require parents to assume an out-of-pocket
expense and may not use a child's benefits if that use would
decrease available coverage, require the parents to pay for services
that would otherwise be covered by public insurance, increase
premiums or lead to discontinuation of insurance, or risk loss of
eligibility for home and community-based waivers. Under the statute,
public agencies are required to provide children with disabilities
with a free, appropriate public education. It has been the
Department's longstanding interpretation under IDEA and section 504
of the Rehabilitation Act that this means a public agency may not
require parents of children with disabilities to use private
insurance

[[Page 12662]]

proceeds to pay for services their children are entitled to receive
if the parents would incur a financial cost as a result. A financial
cost would include an out-of-pocket expense, a decrease in coverage,
or an increase in premiums. This interpretation is equally
applicable to the use of public insurance. Although these changes
appear to limit an LEA's access to public insurance to cover the
costs of FAPE, all of these changes are based on the statutory
requirement to provide FAPE and, therefore, do not impose additional
costs on LEAs beyond what the law would require. Moreover, these
clarifications would not affect the use of public insurance programs
such as Early Periodic Screening, Diagnosis and Testing that do not
impose any limits on coverage or require any co-payments.
    Section 300.142(f) and (g)--Use of private insurance-- Paragraph
(f)(1) clarifies that public agencies may only access parents'
private insurance to pay for required services if the parents
consent to its use. As noted above, it has been the Department's
longstanding interpretation that a public agency may not require
parents to use private insurance proceeds to pay for services the
child is entitled to receive if the parents would incur a financial
cost as a result. Because it is reasonable to assume that use of
private insurance will result in a financial cost in almost all
cases, this provision, which would allow for the use of private
insurance with parental consent, would increase options available to
LEAs for accessing insurance--that is, in cases in which the parents
consent, whether or not a financial cost is incurred.
    However, to ensure that use of parents' insurance proceeds is
voluntary and that parents do not experience unanticipated financial
consequences, the final regulations require that parents provide
informed consent. This consent must be obtained each time a public
agency attempts to access private insurance. This clarification
could have the effect of limiting access to the use of private
insurance but is consistent with the Department's longstanding
interpretation that such use must be voluntary.
    A new paragraph (g) is added that clarifies that Part B funds
may be used for services covered by a parent's public or private
insurance and to cover the costs of accessing a parent's insurance
such as paying deductible or co-pay amounts. This clarification does
not impose any additional costs on LEAs.
    Section 300.142(h)--Program income--This paragraph clarifies
that a public agency that receives proceeds from insurance for
services is not required to return those funds to the Department or
dedicate those funds to this program and that funds expended by a
public agency from reimbursement of Federal funds will not be
considered reimbursement for purposes of Secs. 300.154 and 300.231
of these regulations. This change increases flexibility for State
and local agencies in using the proceeds from insurance.
    Section 300.142(i)--Construction--This paragraph makes it clear
that the IDEA regulations should not be read to alter the
requirements imposed by other laws on a State Medicaid agency or any
other agency administering a public insurance program. This
clarification does not impose any additional costs.
    Section 300.148--Public participation--The final regulations add
language to clarify that if a policy or procedure has been through a
State-required public participation process that is comparable to
and consistent with the Federal requirements, the State would not
have to subject the policy or procedure to public comment again.
This should result in savings to States and would not increase
burden.
    Section 300.152--Commingling--Language has been added to clarify
that the required assurance regarding commingling may be satisfied
by the use of a separate accounting system that includes an audit
trail of the expenditure of Part B funds and that separate bank
accounts are not required. This guidance merely incorporates the
Department's prior interpretation and does not add any burden for
States.
    Section 300.156(b)--Annual description of Part B set-aside
funds--Paragraph (b) provides that if a State's plans for the use of
its State level or State agency funds do not differ from those for
the prior year the State may submit a letter to that effect instead
of submitting a description of how the funds would be used. The
effect of this regulation is inconsequential because it implements
the Department's long-standing interpretation that a letter is
sufficient in this case.
    Section 300.197--Compliance--Paragraph (c) requires SEAs to
consider adverse complaint decisions under the State complaint
procedures in meeting their responsibilities under Sec. 300.197 to
determine whether any LEA or State agency is failing to comply.
Consideration of these decisions is expected to impose minimal
burden on States that are appropriately meeting their
responsibilities under this section.
    Section 300.231--Maintenance of effort (MOE)--The final
regulations make it clear that an LEA meets the maintenance of
effort requirement by spending at least the same total or average
per capita amount of State and local school funds for the education
of children with disabilities as in the prior year. This change
reduces the burden on LEAs of maintaining spending on special
education in those cases in which the State is willing to assume
increased responsibility for funding.
    Section 300.232--Exception to maintenance of effort-- Paragraph
(a) makes it clear that an LEA may only reduce expenditures
associated with departing personnel if those personnel are replaced
by qualified, lower-salaried personnel. Allowing LEAs to reduce
their expenditures by not replacing departing personnel would
violate congressional intent, as expressed in the House and Senate
Committee reports, and diminish special education services in those
districts. The final regulations also clarify that in those cases in
which an LEA is invoking the exception to the MOE requirement and
replacing personnel who have departed with lower salaried personnel,
that this must be done consistent with school board policies,
applicable collective bargaining agreements, and State law. This
clarification of the relationship does not impose any additional
burden beyond what local policies and law would otherwise impose.
    Section 300.234--Schoolwide programs--The final regulations add
language clarifying that children with disabilities in schoolwide
projects must receive services in accordance with an IEP and must be
afforded all of the rights and services guaranteed to such children
under the IDEA. This clarification does not impose any additional
burden on LEAs.
    Section 300.280--Notice for public participation--The final
regulations clarify what constitutes ``adequate'' notice in
paragraphs (b) and (c) and do not impose any additional burden.
    Section 300.281--Public participation--Paragraph (a) further
clarifies the ``reasonableness'' standard implied in the statutory
requirement, while paragraph (b) reflects a statutory requirement in
the General Education Provisions Act. These changes do not impose
any additional costs.
    Section 300.300--Child find--The final regulations clarify that
the State must ensure child find is fully implemented throughout the
State. This clarification does not impose any additional costs. The
final regulations also add language to clarify that the services and
placement needed by each child with a disability must be based on
the child's unique needs and not on the child's disability. This
clarification does not impose any costs on school districts.
    Section 300.301(c)--Implementation of IEP--The final regulations
add language in a new paragraph (d) making it clear that there can
be no delay in implementing a child's IEP in any case in which the
payment source is being reconciled. This clarification does not
impose any additional costs.
    Section 300.308--Assistive technology--The final regulations add
a provision that clarifies that a public agency must permit a child
to have access to a school-purchased assistive technology device at
home or in another setting if necessary to ensure FAPE. This change
does not impose any additional costs on school districts because it
implements a longstanding policy of the Department.
    Section 300.309--Extended school year services--The final
regulations specify that States may not limit eligibility for
extended school year services based on disability and may not limit
types and amounts of services; and clarify that States may establish
standards such as likelihood of regression for determining
eligibility for ESY and that every child is not entitled to receive
ESY. These changes in the regulations impose no burden beyond what
is required by the statute because they reflect the Department's
longstanding policy interpretation of what is required to provide
FAPE.
    Section 300.312--Charter schools--The final regulations add a
new provision that makes clear that children with disabilities who
attend charter schools and their parents retain all rights under
these regulations. The regulations further explain which entity in
the State is responsible for ensuring that the requirements of the
regulations are met. These clarifications do not impose any
additional burdens on States, schools

[[Page 12663]]

districts, or charter schools beyond what the statute would
otherwise require.
    Section 300.313--Developmental delay (DD)--The final regulations
add a new provision describing the use of the developmental delay
designation. This section sets out the requirements for use of the
DD designation. It clarifies that States and LEAs may use the DD
designation for any child who has an identifiable disability,
provided all the child's identified needs are addressed, and
clarifies that States may adopt, if they wish, a common definition
of DD for Parts B and C. These changes clarify the flexibility the
statute affords States in using the DD designation and, therefore,
impose no costs.
    Section 300.341--State standards--The final regulations clarify
that a child placed by a public agency must receive an education
that meets SEA and LEA standards. The cost impact of this change
depends largely on the extent to which non-special education
personnel in schools in which a public agency is placing children do
not meet SEA and LEA standards. Approximately four percent of the
six million children expected to be served under IDEA in school year
1998-1999 are expected to be placed in private schools. Because
these schools are typically schools for exceptional children,
virtually all of the professionals employed by these schools are
special education teachers and related services personnel, who must
meet SEA and LEA under the prior law, as implemented by the
regulations. Paragraph (b) clarifies that each public educational
agency is responsible for developing and implementing an IEP for
each child it serves or places or refers. This clarification imposes
no additional cost on public agencies since it represents a
longstanding interpretation of the statute.
    Section 300.342(b)--Implementation of IEPs--The final
regulations add language requiring that each child's IEP be
accessible to the child's teachers and service providers and that
each teacher and provider be informed of specific responsibilities
related to implementing the IEP and of needed accommodations,
modifications, and supports for the child. This regulation is not
expected to impose any undue burden on schools. The regulations
clarify what is minimally required to promote effective
implementation of the IEP requirements and allow schools flexibility
in determining how to comply.
    Section 300.342(c)--Use of IFSP--Paragraph (c) requires school
districts to obtain written informed consent from parents before
using an IFSP instead of an IEP, which is based on an explanation of
the differences between the two documents. The regulation would
impose a cost burden on districts in those States that elect to
allow parents to opt for the use of an IFSP instead of an IEP.
However, once a form is developed that explains the differences
between an IFSP and an IEP, the costs of providing this form to
parents and obtaining written consent are most likely minimal, and
are justified by the benefits of ensuring that parents understand
the role of the IEP in providing access to the general education
curriculum.
    Section 300.342(d)--Effective date for IEPs--Paragraph (d)
provides that all IEPs developed, reviewed, or revised on or after
July 1, 1998 must meet the requirements of IDEA, as implemented.
This language clarifies the statute and eliminates the burden that
would be associated with redoing all IEPs to conform with the new
requirements before July 1. The one-time cost of reconvening
millions of IEP teams before July 1 would have been substantial.
    Section 300.344(c) and (d)--Participants in IEP meetings--The
final regulations add a new paragraph (c) clarifying that
determinations about the knowledge and expertise of other
individuals invited to be on the IEP team are made by the parent or
the public agency that invited them. This clarification reduces
potential burden by minimizing opportunities for disputes with
respect to whether the parent or public agency may invite another
individual to participate on the team. A new paragraph (d) has been
added to clarify that a public agency may designate another IEP team
member as the public agency representative of the IEP team.
Permitting an individual to perform dual functions will reduce the
cost of conducting IEP meetings for school districts.
    Section 300.344(b)--Including the child in the IEP meeting--
Paragraph (b) requires the school to invite students to participate
in IEP meetings if the meeting will include consideration of
transition services needs or transition services. The effect of this
provision is to give 14- and 15-year-olds, and in some cases,
younger students the opportunity to participate. The existing
regulations have required schools to invite students to meetings in
which transition services were to be discussed. These would include
all students aged 16 years and older, and in some cases, younger
students. The law has also given other children, if appropriate, the
opportunity to participate in the IEP meeting. Therefore, in some
cases, 14- and 15-year-olds may be already participating. The costs
of notifying students about a meeting or trying to ensure that the
students' interests and preferences are accommodated are more than
justified by the benefits of including students in a discussion of
their own transition needs, including their planned course of study
in secondary school.
    Section 300.345(b)--Participants in IEP meeting--The final
regulations clarify that the public agency must inform parents of
their right and that of the public agency to invite someone to the
IEP meeting who has knowledge or special expertise. This additional
requirement will impose minimal burden on schools because this
information could be included in other notices the schools are
already required to provide to parents.
    Section 300.345(f)--Copy of the IEP--The final regulations
require the public agency to provide parents a copy of the IEP. The
cost of this change will depend on the extent to which parents are
currently receiving copies. Under current regulations, schools are
required to provide a copy to parents who request one. It is
reasonable to assume that schools routinely provide a copy to
parents who attend the IEP meeting. The cost of providing copies to
those parents who would not otherwise receive copies is not likely
to be substantial.
    Section 300.346(a)(1)--Performance on assessments--The final
regulations require the IEP team to consider the child's performance
on general State and district-wide assessments, in considering the
child's initial or most recent evaluation. This clarification is not
likely to impose an additional costs because one can reasonably
assume that most IEP teams would consider this information as a
matter of course in determining the child's present levels of
performance.
    Section 300.347--Transition services--The final regulations
delete the requirement from the existing regulations that requires a
justification for not providing particular transition services. This
change eliminates unnecessary paperwork.
    Section 300.349--Private school placements--The final
regulations incorporate the previous regulatory requirement
regarding inviting a representative of the private school to a
child's IEP meeting. This requirement does not impose a significant
burden, while helping to ensure appropriate implementation of IEPs
for children placed in private schools.
    Section 300.350--Accountability--The final regulations include a
statement regarding the responsibilities of public agencies and
teachers to make good faith efforts to ensure that a child achieves
the growth projected in the IEP, even though the IEP should not be
regarded as a performance contract. This clarification does not
impose any additional costs on agencies and is intended to promote
proper implementation of the IEP requirements.
    Section 300.401--Children placed in private schools--The final
regulations specify that a child placed in a private school by a
public agency as a means of providing FAPE must receive an education
that meets the standards that apply to the SEA and LEA. For example,
all personnel who provide educational services must meet the
personnel standards that apply to SEA and LEA personnel providing
similar services. This change could increase the costs of these
placements to the extent this change required private schools to
increase their salaries in order to recruit regular education
personnel who meet SEA and LEA standards. However, the costs imposed
by this change are expected to be minimal. Less than two percent of
the six million children served under Part B are placed by public
agencies in private schools. These schools are typically special
schools in which most of the education personnel are providing
special education and related services. These personnel have been
required to meet SEA and LEA standards under prior law.
    Section 300.403--Reimbursement for private placements--The final
regulations include language in paragraph (c) that makes it clear
that a private placement must be appropriate to be eligible for
reimbursement, but does not need to meet State standards. This
clarification, which is based on Supreme Court decisions regarding
the basic standard for reimbursement, does not impose any additional
costs on State or local agencies.
    Section 300.451--Consultation on child find--The final
regulations add a new

[[Page 12664]]

paragraph (b) to require public agencies to consult with
representatives of parentally-placed private school students on how
to conduct child find. Paragraph (a) clarifies that the child find
activities for parentally-placed children must be comparable to
child find activities for children with disabilities in public
schools. The consultation requirement may impose an additional
burden but is expected to better enable school districts to carry
out this mandatory function. The requirement for comparability does
not impose any additional burden, but clarifies the intent of the
statute, which does not distinguish between child find activities
for children enrolled in public schools and those conducted for
children in private schools.
    Section 300.452--Services plan--A paragraph has been added that
clarifies that a services plan must be implemented for each
parentally-placed private child who is receiving services under Part
B. This clarification does not impose any additional burden.
    Section 300.453--Expenditures on child find in private schools--
A new paragraph (b) requires States to conduct a child count of
private school children with disabilities and consult with
representatives of private school children in deciding how to
conduct that count. This count is necessary to enable States to
determine how much they are required to spend on providing special
education and related services to this population. A new paragraph
(c) clarifies that the costs of child find for private school
children may not be considered in determining whether the LEA met
the requirement for proportionate expenditures on parentally-placed
children. This provision does not impose any additional cost on
school districts because it has been the Department's longstanding
interpretation that child find includes the identification of
children in private schools and that the cost of child find for
private school children may not be considered in determining whether
the LEA has met the requirements to serve children in private
schools. Paragraph (d), which clarifies that States and LEAs are not
prohibited from spending additional funds on providing special
education and related services to parentally-placed children beyond
what would be required, does not impose any additional costs.
Paragraph (b) requires the LEA to conduct a child count of children
with disabilities in private schools on the same day in which the
overall count is conducted, to consult with private school
representatives on conducting that annual count, and to use that
count to determine required expenditures. Although the requirement
to conduct the child count on a date certain limits LEA flexibility
and the required consultation imposes a burden, both requirements
help ensure that the child count accurately reflects the size of the
private school population.
    Section 300.454--Services to children in private schools--The
final regulations clarify that no private school child has an
individual right to receive any of the services the child would
receive if enrolled in a public school. This section further
provides that each LEA shall consult with representatives of private
school children in determining which children will receive services,
what services will be provided, how and where services would be
provided, and how they would be evaluated. The regulations make it
clear that the representatives must have a genuine opportunity to
express their views and that the consultation must be before the LEA
makes its final decisions. The regulations also require the LEA to
conduct meetings to develop a services plan for each private school
child and to ensure the participation of a representative of the
child's private school at the meeting. These regulations help ensure
effective implementation of the provisions relating to serving
parentally-placed children and impose minimal burden on school
districts.
    Section 300.455--Services to children in private schools--The
final regulations clarify that services provided private school
children must be provided by personnel meeting SEA standards; that
children in private schools may receive different amounts of
services than children in public schools; and that there is no
individual entitlement to services; each child to be provided
services must have a services plan. These changes do not impose any
additional costs on school districts; indeed they reflect the
Department's longstanding interpretation of the provisions relating
to serving parentally-placed children.
    Section 300.456--Treatment of transportation--Consistent with
the Department's longstanding interpretation, the final regulations
state that transportation must be provided to private school
children if necessary to enable them to benefit from the services
that are offered. The regulations also clarify that the cost of
providing the transportation may be included in calculating whether
the LEA has met its financial obligations. The final regulations
further clarify that the LEA is not required to provide
transportation between the child's home and the private school.
These clarifications could reduce the potential cost for school
districts of complying with the requirement for proportionate
expenditures.
    Section 300.457--Complaints of parentally-placed children--The
final regulations make it clear that due process procedures do not
apply to parentally-placed children. This clarification will reduce
costs to the extent that LEAs have allowed parents to use the due
process procedures to bring complaints relating to parentally-placed
children. This section also clarifies that due process procedures do
apply to child find. This change will increase costs to the extent
that parents were unaware of their ability to bring complaints about
child find and now do so.
    Section 300.500(b)(1)(iii)--Parental consent--The final
regulations add language to clarify that a revocation of consent
does not have retroactive effect if the action consented to has
already occurred. This change protects LEAs from complaints
regarding services provided in reliance on parental consent that was
subsequently revoked. It does not impose any costs on LEAs.
    Section 300.501(b)--Parental access to meetings--Paragraph (b)
of Sec. 300.501 defines when and how to provide notice to parents of
meetings in which they are entitled to participate. It further
limits what is meant by the term ``meeting.'' These regulations
impose the minimal requirements necessary to implement the statute.
The language in paragraph (b)(1) helps to clarify what is required
to provide parents with a meaningful opportunity to attend meetings
while the language in paragraph (b)(2) is designed to reduce
unnecessary burden by clarifying what constitutes a ``meeting.''
    Section 300.501(c)--Placement meetings--Paragraph (c) of
Sec. 300.501 specifies that the procedures to be used to meet the
new statutory requirement of parental involvement in placement
decisions. It provides that the procedures used for parental
involvement in IEP meetings also be used for placement meetings.
These include specific requirements relating to notice, methods for
involving parents in the meeting, and recordkeeping of attempts to
ensure their participation. Because in many cases placement
decisions will be made as part of IEP meetings, as is already the
case in most jurisdictions, the impact of this regulation will be
minimal. In those cases in which placement meetings are conducted
separately from the IEP meetings, the benefits of making substantial
efforts to secure the involvement of parents and provide for their
meaningful participation in any meeting to discuss their child's
placement more than justify the costs.
    Section 300.502--Independent educational evaluation--Paragraph
(a) provides that on request for an independent education evaluation
(IEE) parents are provided with information about where an IEE may
be obtained and the agency criteria applicable to IEEs, criteria
that must be consistent with the definition of an IEE. Paragraph (b)
makes it clear that if a parent requests an IEE, the agency must
either initiate a due process hearing to show that its evaluation is
appropriate or provide for an IEE at public expense. The final
regulations also provide that a public agency may request an
explanation from the parents regarding their concerns when a parent
requests an IEE at public expense, but such an explanation may not
be required and the public agency may not delay providing the IEE,
or initiating a due process hearing. These provisions requiring the
agency to provide information to the parents and take action do not
result in significant additional costs because if the agency did not
take action, parents would be free to request due process to compel
action. It is important for parents to be informed about the
relevant agency criteria for an IEE since the parent has a right to
an IEE at public expense and the IEE must meet agency criteria to be
considered by the public agency in determining eligibility.
    Paragraph (e) provides that a public agency may not impose
conditions or timelines related to obtaining an independent
evaluation. This requirement, which arguably limits the flexibility
of school districts, is critical to ensuring that school districts
do not find ways to circumvent the right provided by the IDEA to
parents to obtain an independent evaluation.
    Sections 300.504(b)(14)--Notice to parents regarding complaint
procedures--The final regulations require that the required

[[Page 12665]]

procedural safeguards notice to parents include information about
how to file a complaint under State complaint procedures. Because
districts are already required to provide this notice to parents,
the additional cost of adding this information will be one-time and
minimal. The burden on small districts could be minimized if each
SEA were to provide its LEAs with appropriate language describing
the State procedures for inclusion in the parental notices. Making
parents aware of a low cost and less adversarial mechanism that they
can use to resolve disputes with school districts should result in
cost savings and more cooperative relationships between parents and
districts.
    Section 300.505(a)(3)--Parental consent for reevaluation--
Paragraph (a)(3) clarifies that the new statutory right of parents
to consent to a reevaluation of their child does not require
parental consent prior to the review of existing data or
administering a test or other evaluation procedure that is given to
all children (unless all parents must consent). As a matter of good
practice, school personnel should be engaged in reviewing
information about the child's performance on an on-going basis.
Requiring parental consent for this activity would have imposed a
significant burden on school districts with little discernable
benefit to the children served under these regulations.
    Paragraph (c)(2) uses the procedures that were in the prior
regulations dealing with inviting parents to IEP meetings as a basis
for defining what it means to undertake ``reasonable measures'' in
obtaining parental consent. The intent of the change is to
meaningfully operationalize the statutory right of parents to
consent to a reevaluation of their child. Given the importance of
parental involvement in all parts of the process, any burden imposed
by the proposed recordkeeping requirements is justified by the
benefits of securing parental consent to the reevaluation.
    Section 300.506--Impartial mediation--Paragraph (b)(2) specifies
that if the mediator is not selected from the list of mediators on a
random basis, such as rotation, both parties must be involved in
selecting the mediator and agree with the selection of the mediator.
Paragraph (c) interprets the statutory requirement that mediation be
conducted by an impartial mediator to mean that a mediator may not
be an employee of any LEA or a State agency that is providing direct
services to the child and must not have a personal or professional
conflict of interest. However, a person will not be considered an
employee merely for being paid to serve as a mediator. Since
participation in mediation is voluntary, it must be viewed as an
attractive alternative to both public agencies and parents. Both
parties must trust the process and the first test of that is the
selection of the mediator. It is unlikely that parents would regard
an employee of the other party to the dispute to be impartial or a
person who has a personal or professional conflict of interest.
Providing for impartiality should help promote the use of mediation
and improve its overall effectiveness in resolving disagreements.
The impact of disallowing these individuals from serving as
mediators is not likely to have a significant impact on States,
given current practices. Many States contract with private
organizations to conduct their mediations. Others use employees of
the State educational agency, which, in most cases, is not the
agency providing direct services. Given the significant benefits to
children, families, and school districts of expeditiously resolving
disagreements without resort to litigation, the benefits of this
change easily justify any cost or inconvenience to States.
    Section 300.506(d)(2)--Failure to participate in meeting--
Paragraph (d)(2) would specify that a parent's failure to
participate in a meeting at which a disinterested person explains
the benefits of and encourages the use of mediation could not be
used as a reason to deny or delay the parent's right to a due
process hearing. This change is not likely to limit the benefits to
school districts of mediation as it is unlikely that parents who are
unwilling to participate in such a meeting with a disinterested
person would be willing to engage in the voluntary mediation
provided for in the statute.
    Section 300.507(c)(4)--Failure to provide notice--Paragraph
(c)(4) makes it clear that failure by parents to provide the notice
required by the statute cannot be used by a school district to delay
or deny the parents' right to due process. This regulation would
eliminate the possibility that public agencies will delay a due
process hearing pending receipt of a notice that they deem to be
acceptable. This regulation does not impose any cost on school
districts and would help ensure that parents are afforded
appropriate and timely access to due process.
    Section 300.510(b)(2)(vi)--Access to findings and decisions--The
final regulations give parents the option of selecting an electronic
or written copy of the findings and decisions in the administrative
appeal of a due process decision. This is consistent with the
statutory right of the parents to a written or electronic copy of
the decision and findings in the due process hearing. It is
important to ensure that parents are provided the decisions and
findings in a way that is most useful to them. The cost of
implementing this requirement is expected to be negligible.
    Section 300.513(b)--Attorneys' fees--Paragraph (b) provides that
funds provided under Part B of IDEA could not be used to pay
attorneys' fees or costs of a party related to an action or
proceeding under section 615 of IDEA. This regulation does not
increase the burden on school districts or otherwise substantially
affect the ability of school districts to pay attorneys' fees that
are awarded under IDEA or to pay for their own attorneys. It merely
establishes that attorneys' fees must be paid by a source of funding
other than Part B based on the Department's position that limited
Federal resources not be used for these costs. This regulation is
not expected to have a cost impact on small (or large) districts
because all districts have non-Federal sources of funding that are
significantly greater than the funding provided under IDEA.
Currently, funds provided to States under the IDEA represent about
ten percent of special education expenditures.
    Section 300.514(c)--Hearing officer decisions--The final
regulations clarify that if a State hearing officer in a due process
hearing or a review official in a State level review agrees with the
parents that a change in placement is appropriate, the child's
placement must be treated in accordance with that agreement. This
regulation is not expected to have a significant cost impact because
it is based on the Supreme Court's language in Burlington School
Committee v. Department of Education, and the decisions of appellate
courts in such circuits as the 3rd and 9th. If paragraph (c) were
not included in the regulation, in many cases, parents would be
expected to be able to successfully argue, as they have in the past,
that the hearing officer's decision to change the placement of a
child be implemented. The cost impact of this regulation in other
circuits and cases in which the placement change would not have
occurred is indeterminate because in some cases implementation of
the hearing officer's decision will result in moving children to
more costly placements and, in other cases, to less costly
placements. In either case, the benefits to the child of securing an
appropriate placement justify any potential increase in costs or
other burdens to the school district.
    Section 300.519--Change in placement--The final regulations
define a change in placement in the context of disciplinary removals
as a removal for more than 10 consecutive school days or a series of
removals that constitute a pattern because they cumulate to more
than 10 school days in a school year and, because of such factors as
the length of each removal, the total amount of time the child is
removed, and the proximity of the removals to one another. This
change does not impose any additional costs. It is consistent with
longstanding interpretations of the law.
    Section 300.520(a)--Authority of School Personnel--Paragraph (a)
clarifies that school personnel may remove a child with a disability
for school code violations for up to 10 days at a time more than
once during a school year, as long as such removals do not
constitute a change in placement. This clarification does not result
in any additional costs or savings for school districts because it
is consistent with the Department's longstanding interpretation of
the law and the statute, as amended.
    Section 300.520(b) and (c)--Behavioral interventions--Paragraph
(b) of this section makes it clear that if a child is removed from
his or her current placement for 10 schools days or fewer in a given
year, the school is not required to convene the IEP team to develop
an assessment plan for the child. Paragraph (b) further provides
that a school would be required to do so if the child were suspended
for more than 10 days in a given school year. Paragraph (b)
specifies that the IEP team meeting to consider behavioral
interventions occur within 10 business days of the behavior that
leads to discipline rather than 10 calendar days, and clarifies
that, if the child does not have a behavior intervention plan, the
purpose of the meeting is to develop an assessment plan. After
completing the assessments specified in the plan, the team must meet
to develop appropriate behavioral interventions to address that
behavior. Because the statute

[[Page 12666]]

could be read to require that the IEP team be convened for this
purpose the first time a child is suspended in a given year, the
requirement in the final regulations would significantly reduce the
burden on school districts.
    The business day alternative would further minimize the burden
on school districts and would not have a significant impact on
children with disabilities, in light of other protections for
children.
    In determining whether to regulate on this issue, the Secretary
considered the potential benefits of providing behavioral
interventions to children who need them and the impact on school
districts of convening the IEP team to develop behavioral
interventions if children are suspended.
    Based on consideration of the costs and benefits to children and
schools, the IEP team should not be required to meet and develop or
review behavioral interventions for a child unless the child was
engaged in repeated or significant misconduct. The costs and burden
of convening the team the first time a child is suspended outweigh
any potential benefits to the child if the child is receiving a
short-term suspension for an infraction. At the same time, the
benefits of requiring a plan for a child who has already been
suspended for more than 10 days justify the costs given the benefits
of early intervention to both students and schools.
    The final regulations further provide that in the case of a
subsequent suspension of less than 10 days that does not constitute
a change in placement for a child who has a behavioral intervention
plan, a meeting would not be required to review the behavioral
intervention plan unless one or more team members believe that the
child's IEP or its implementation need modification. Since the
statute could be read to require that the IEP team meet to review
the child's plan each time the child is suspended, this language
further reduces the cost to school districts.
    Section 300.521--Due process hearing for removal--The final
regulations specify that a hearing officer is to make the
determination authorized by section 615(k)(2) of IDEA (regarding
whether a child's current educational placement is substantially
likely to result in injury to self or others) in a due process
hearing.
    A hearing that meets the requirement for a due process hearing
is the most appropriate forum for expeditiously and fairly
determining whether the district has demonstrated by substantial
evidence (defined by statute as ``beyond a preponderance of the
evidence'') that maintaining the current placement is substantially
likely to result in injury and to consider the appropriateness of
the child's current placement and the efforts of the district to
minimize the risk of harm.
    The cost impact of this regulation on school districts will be
limited because in cases in which school districts and parents agree
about the proposed removal of a dangerous child, no hearing is
necessary. In those few cases in which there is disagreement, the
benefits of conducting a due process hearing justify the costs.
    Section 300.523--Manifestation determination--Paragraph (a)
makes it clear that a school is required to conduct a manifestation
review only when the removal constitutes a change in placement.
    As was the case in considering section 300.520(c), the
Department considered the potential benefits to the child and impact
on districts of convening the IEP team.
    The conclusion was that the IEP team should not be required to
meet and determine whether the child's behavior was a manifestation
of the disability unless the district is proposing a suspension of
more than 10 days at a time or a suspension that constitutes a
pattern of exclusion. The cost of convening the team to conduct a
manifestation review outweigh the potential benefits to a child
being suspended for a few days, particularly because the statute
clearly allows the school a period of ten days after the misconduct
occurs to convene the team for purposes of conducting the
manifestation determination. In the case of short term suspensions,
the team would often be meeting after the child had already returned
to school.
    The primary purpose of this review is to ensure that a child
will not be punished for behavior that is related to his or her
disability. The team is required to consider, for example, whether
the child's disability has impaired his or her ability to understand
the impact and consequences of his or her behavior and whether the
child's disability has impaired the child's ability to control the
behavior subject to discipline. Conducting this review is of little
use after the child has returned to school. A review would have
limited applicability to future actions. Even in those cases in
which the child engaged in identical misconduct, one's assessment of
the relationship between the child's behavior and disability could
change. Moreover, the statute clearly contemplates an individualized
assessment of the conduct at issue. Once a child has been suspended
for more than 10 days in a given year, the team will already be
considering the need for changes in the child's behavior
intervention plan, if the child has one, or will be meeting to
develop one, if the child does not. Requiring an additional meeting
to examine the relationship between the child's behavior and
disability is unlikely to produce additional information that would
inform the development of appropriate behavioral strategies.
Requiring the behavioral assessment to be conducted once a child has
been suspended for 10 days in a school day will help ensure that the
district responds appropriately to the child's behavior.
    This regulation would significantly reduce costs for school
districts if the statute is read to require a manifestation review
every time a child is suspended.
    Section 300.523(f)--Manifestation determination--The final
regulations clarify that if the team identifies deficiencies in the
child's IEP, its implementation, or placement, the agency must take
immediate steps to remedy the deficiencies. This clarification does
not impose any costs beyond what the statute would require.
    Section 300.526--Placement in alternative setting--Language is
added to paragraph (c) to make clear that a school district may
request a hearing officer to extend a 45-day placement on the
grounds that returning a child to his or her regular placement would
be dangerous. This change, which increases the options available to
school districts for dealing with a child engaged in dangerous
behavior, does not impose any costs on school districts.
    Section 300.527--Basis of knowledge--The final regulations make
a number of clarifying changes: Language is added to paragraph
(b)(2) to clarify that the behavior or performance must be in
relation to one of the disability categories. Paragraph (b)(4) has
been revised to require that expressions of concern about the child
be made to personnel who have responsibility for child find or
special education referrals. A new paragraph has been added to
clarify that if an agency acts and determines that the child is not
eligible, and provides proper notice to the parents, and there are
no additional bases of knowledge that were not considered, the
agency would not be held to have a basis of knowledge. These changes
reduce costs for LEAs by further specifying what is required for
determining that an LEA has a basis for knowledge that a child is a
child with a disability. By specifying, for example, that
expressions of concern be made to personnel responsible for child
find or special education referral eliminates the possible
interpretation that a school must provide services and other
protections to children who were the subject of conversation between
any two people in the school. Without these clarifications,
commenters have suggested that potentially all children could avail
themselves of IDEA protections.
    Roughly three million nondisabled children are expected to be
the subject of disciplinary actions during this school year. Parents
are likely to raise this issue in the case of long-term suspensions
and expulsions in which identification as a child with a disability
ensures the non-cessation of educational services, among other
protections. An estimated 300,000 nondisabled children receive long-
term suspensions or expulsions in a given school year. Based on the
public comments on this section of the regulations, it would appear
that a basis for knowledge claim could be sustained in a significant
percentage of these cases. Assuming for purposes of this analysis
that it could be sustained in about 10 percent of cases, the costs
of providing services, for example, to those children during the
period in which they are excluded from school would be considerable
because only a minority of States currently provide services to
children without disabilities who have been disciplined. Therefore,
the savings resulting from these clarifications are considerable.
    Section 300.528--Expedited due process hearings--The final
regulations specify that States establish a timeline for expedited
due process hearings that meets certain standards. These include:
ensuring written decisions are mailed to the parties in less than 45
days, with no extensions that result in a decision more than 45 days
from the request for the hearing, and providing for the same
timeline whether the hearing is requested by a public agency or
parent. Paragraph (b) further clarifies that the State

[[Page 12667]]

may alter other State-imposed procedural rules from those it uses
for other hearings. These clarifications provide States with maximum
flexibility in conducting these hearings while ensuring equitable
treatment for parents and public agencies. Requiring such hearings
within 45 days imposes minimal burden on States since 45 days
provides ample time--more time than proposed by many of the
commenters--and the requests for such hearings are not expected to
be great. Requests for expedited hearings will only be made in those
cases involving serious misconduct in which there is a disagreement
between the parents and public agency regarding action proposed by
the public agency.
    Section 300.529--Transmittal of education records--The final
regulations clarify that a child's special education and
disciplinary records may only be transmitted to the extent that such
transmission is permitted under the Family Educational Rights and
Privacy Act (FERPA). This clarification, which restricts the extent
to which such records may be transmitted to certain agencies,
consistent with the requirements of FERPA, does not impose any
burden on school districts.
    Section 300.532--Evaluation procedures--The final regulations
require that assessments of children with limited English
proficiency must be selected and administered to ensure that they
measure the extent to which a child has a disability and needs
special education, and do not instead measure the child's English
language skills. This change, which clarifies requirements under
both IDEA and Title VI, does not impose any additional burden. The
final regulations also add language requiring that if an assessment
is not conducted under standard conditions, information about the
extent to which the assessment varied from standard conditions, such
as the qualifications of the person administering the test or the
method of test administration, must be included in the evaluation
report. This change will impose a burden on school districts only to
the extent that the evaluation team does not currently include
information in its report on the extent to which an assessment
varied from standard conditions. Information about the
qualifications of the person administering the test and the method
of test administration is needed so that the team of qualified
professionals can evaluate the effects of variances in such areas on
the validity and reliability of the reported information. The final
regulations clarify that in evaluating a child all needs of the
child must be identified, including any commonly linked to a
disability other than the child's. This change does not impose any
additional burden on districts, but clarifies what is intended by
the term ``comprehensive'.
    Section 300.533(b)--Review of existing data--The final
regulations make it clear that the group that is responsible for
reviewing existing data on the child as part of an initial
evaluation or a reevaluation need not meet to conduct this review.
This clarification reduces costs for school districts by eliminating
unnecessary meetings of this group.
    Section 300.534(b)--Eligibility determination--Paragraph (b)
clarifies that children are not eligible if they need specialized
instruction because of limited English proficiency or lack of
instruction in reading or math, but do not need specialized
instruction because of a disability. This clarification does not
impose any costs on school districts, but reflects the statutory
intent.
    Section 300.534(c)--Termination of eligibility--Paragraph (c)
clarifies that an evaluation is not required before the termination
of a student's eligibility under Part B due to graduation with a
regular high school diploma or aging out under State law. This
clarification reduces the costs for school districts by eliminating
the need to conduct evaluations for the 146,000 students who are
expected to exit high school in school year 1998-1999 by graduating
or aging out.
    Section 300.535(a)(1)--Eligibility determination procedures--The
final regulations add parents to the variety of sources from which
the public agency will draw in interpreting evaluation data for the
purpose of determining if the child is a child with a disability.
This change imposes minimal burden while providing for meaningful
parental involvement, consistent with the requirements for including
parents in the team that determines eligibility.
    Section 300.552(e)--Placement in regular classroom--The final
regulations provide that a child may not be denied placement in an
age-appropriate regular classroom solely because the child's
education requires modification to the general curriculum. This
change clarifies the requirement in the law that a child may only be
removed from the regular educational environment if education in the
regular class cannot be achieved satisfactorily with the use of
supplementary aids and services. Although this clarification may
result in an increase in the number of children served in regular
classes, it does not impose costs on school districts beyond what
the statute itself would require because of the longstanding
requirement to serve children in the least restrictive environment.
    Section 300.562--Access to records--The final regulations make
clear that agencies must comply with requests for access to records
by parents prior to any meetings, but no more than 45 days after
request, consistent with FERPA. This provision minimizes burden on
LEAs by not imposing a shorter deadline than provided by FERPA,
except as necessary to provide access before an IEP meeting or
hearing. This provision helps ensure that parents have the ability
to adequately prepare for and participate in IEP meetings and due
process hearings, which are crucial to ensuring each child's right
to a free appropriate public education.
    Section 300.571--Consent for disclosure of information--The
final regulations provide for an exception to the requirement for
parental consent for disclosure of education records, consistent
with the language in Sec. 300.529. This does not impose any costs on
school districts and resolves an apparent contradiction in the
regulations with respect to disclosure of education records to law
enforcement and juvenile justice agencies.
    Section 300.574--Children's rights relating to records--The
final regulations clarify that the parents' rights under FERPA
transfer to the student at age 18. The regulations further provide
that if the rights of parents under Part B of IDEA are transferred
to the student at the age of majority, then the rights of parents
regarding education records also transfer. This clarification does
not impose any additional costs on school districts.
    Section 300.581-300.587--Procedures for enforcement--The final
regulations clarify the types of notice and hearing that the
Department would provide before taking an enforcement action under
Part B of IDEA. Providing clarity about the applicable procedures
for the various types of enforcement actions will benefit potential
subjects of enforcement actions and the Department by ensuring that
time and resources are not spent on unnecessary disputes about
procedures or needless process.
    Section 300.589--Waiver procedures--The final regulations
describe the procedures to be used by the Secretary in considering a
request from an SEA of a waiver of the supplement, not supplant and
maintenance of effort requirements in the IDEA Amendments of 1997.
This regulation does not impose any cost on local school districts.
The procedures will only affect a State requesting a waiver under
Part B.
    Section 300.624--Capacity-building subgrants--The final
regulations make it clear that States can establish priorities in
awarding these subgrants. The language provides permissive authority
to be used at the discretion of each State, clarifying the intent of
the statutory change and imposing no burden on State agencies.
Allowing States to use these funds to foster State-specific
improvements should lead to improving educational results for
children with disabilities.
    Section 300.652--Advisory panel functions--The final regulations
add language stating that the panel's responsibilities include
advising on the education of students with disabilities who have
been incarcerated in adult prisons. This additional burden will not
impose significant costs.
    Section 300.653--Advisory panel procedures--The final
regulations include language in paragraph (d) to require panel
meetings to be announced long enough in advance to afford people a
reasonable opportunity to attend and require that agenda items be
announced in advance and that meetings be open. These changes impose
minimal burden while facilitating meaningful participation in the
meetings.
    Sections 300.660(a) and 303.510(a)--Information about State
complaint procedures--The final regulations require States to widely
disseminate their complaint procedures. While this proposed
requirement would increase costs for those State educational
agencies that have not established procedures for widely
disseminating this information, the Secretary could have prescribed
specific mechanisms for this dissemination but chooses not to, in
order to give SEAs flexibility in determining how to accomplish
this. The requirement would not have any direct impact on small
districts and would benefit parents who believe that a public agency
is violating a

[[Page 12668]]

requirement of these regulations, by providing them the information
they would need to get an official resolution of their issue without
having to resort to a more formal, and generally more costly,
dispute resolution mechanism.
    Section 300.660(b) and 303.510(b)--Remedies--The final
regulations require States in resolving complaints to address how to
remedy the failure to provide appropriate services, including
awarding of compensatory relief and corrective action. This
clarification does not impose any additional costs beyond those that
would be otherwise required by the statute.
    Section 300.661(c) and 303.512(c)--Requirements for complaint
procedures--The final regulations add language that clarifies how
the State complaint process interacts with the due process hearing
process. The language clarifies that a State may set aside any part
of a complaint being addressed in a due process hearing; that the
due process hearing decision is binding; and that failure to
implement a due process decision must be addressed by the SEA. This
clarification is expected to reduce costs by reducing unnecessary
disputes about the relationship between the two processes.
    Sections 300.661 and 303.512--Secretarial review--The final
regulations delete the provision providing for Secretarial review of
complaints filed under State complaint procedures. The effect of
this change on small (and large) districts would be inconsequential
because of the small number of requests for these reviews. This was
done in recognition of the report of the Department's Inspector
General of August 1997, that noted that this procedure provides very
limited benefits to children with disabilities or to IDEA programs
and involves a considerable expenditure of the resources of the
Office of Special Education Programs and other offices of the
Department. The Inspector General's report concluded that greater
benefit to the programs and individuals covered by IDEA would be
achieved if the Department eliminated the Secretarial review process
and focused on improving State procedures for resolving complaints
and implementing IDEA programs. This change, and the changes in
Secs. 300.660(b), 300.503(b)(8), 303.510(b), and 303.403(b)(4) that
require greater public notice about the State complaint procedures,
would implement those recommendations.
    Sections 300.662 and 303.511--State reviews--This change
relieves States of the requirement to review complaints about
violations that occurred more than three years before the complaint.
This limitation on the age of the complaints is expected to reduce
the cost to SEAs of investigating and reviewing complaints. There is
no reason to believe this change would adversely affect small
districts. There is also no reason to expect that this proposal
would have a significant negative impact on individuals or entities
submitting complaints under these procedures as it is unlikely that
complaints alleging a violation that occurred more than three years
in the past and that do not allege a continuing violation or request
compensatory services would result in an outcome that puts the
protected individuals under these regulations in a better position
than they would have been in if no complaint had been filed. On the
other hand, allowing States to focus their complaint resolution
procedures on issues that are relevant to the current operation of
the State's special education program may serve to improve services
for these children.
    Section 300.712--Allocations to LEAs--The final regulations
clarify how to calculate the base payments to LEAs under the
permanent formula in a case in which LEAs have been created,
combined, or otherwise reconfigured. Although recalculation itself
imposes some burden on the SEA, the regulations provide the SEA with
considerable flexibility in doing that recalculation. For example,
the SEA determines which LEAs have been affected by the creation,
combination, or reconfiguration and what child count data to use in
allocating the funds among the affected LEAs.
    Language has also been added to the regulations that in
implementing the permanent formula States must apply, on a uniform
basis, the best data available to them. This clarification does not
impose any additional burden on States in allocating funds.
    Section 300.753--Annual child count--The final regulations
clarify that the SEA may count parentally-placed private school
children if a public agency is providing special education or
related services that meet State standards to these children. This
clarification does not impose any burden on SEAs or LEAs while
helping to ensure a more equitable distribution of IDEA funds.

   Attachment 3.--Disposition of NPRM Notes in Final Part 300 and 303
                             Regulations \1\
     [Note: Attachment 3 will not be codified in the Code of Federal
                              Regulations]
------------------------------------------------------------------------
                                                II. Disposition of notes
     I. List of notes by section in NPRM          in final regulations
------------------------------------------------------------------------
                                Subpart A
------------------------------------------------------------------------
300.1--Purposes:
    * Independent living..............  * In discussion
                                                under Sec.  300.1; and
                                                in Appendix A (Re-
                                                transition services).
300.2--Applicability to State, local, and
 private agencies:
    * Requirements are binding on each  * Added to Reg as
     public agency regardless of whether it     Sec.  300.2(a)(2).
     receives B funds.

        Definitions Used in This Part

    1. List of terms defined in specific       1. Moved to Index under
     sections.                                  ``Definitions.''
    2. Abbreviations used....................  2. Terms identified in
                                                Reg text.
300.6--Assistive technology service:
    * Definitions of assistive          * Deleted.
     technology device and service are
     identical to Technology Act of 1988.
300.7--Child with a disability:
    1. Autism characteristics after age 3 is   1. Added to Reg as Sec.
     still Autism.                              300.7(c)(1)(ii).
    2. Developmental Delay--Explanation......  2. Added to Reg at Sec.
                                                300.7(b)(2).
    3. Dev. Delay--H.Rpt statement on          3. In discussion under
     importance of.                             Sec.  300.7(b).
    4. Emotional disturbance (ED)--H.Rpt       4. In discussion under
     statement.                                 Sec.  300.7(c).
    5. ADD/ADHD--Eligible under OHI or other   5. ``ADD/ADHD'' and
     disability category if meet criteria       ``limited alertness''
     under Sec.  300.7(a).                      added to Sec.
                                                300.7(c)(9).
300.12--General curriculum:
    * Term relates to content and not   * Added to Reg
     setting.                                   (IEP--Sec.  300.347(a)(1
                                                )(i), (2)(i)). In
                                                discussion of ``Gen.
                                                Cur.''
300.15--IEP Team:
    * IEP team may also serve as        * In discussion
     placement team.                            under Sec.  300.16.
300.17--LEA:
    * Charter school that meets def of  * Added to Reg as
     ``LEA'' is eligible for B-$; & must        part of Sec.  300.312.
     comply w/B if it receives B-$.
300.18--Native language:
    * (1) Sections where term is used.  * (1) Listed in
                                                Index.

[[Page 12669]]

      (2) Exceptions to definition...........    (2) Added to Reg at
                                                Sec.  300.19.
                                                 In discussion under
                                                Sec.  300.19.
300.19--Parent:
    * ``Parent'' includes a             * Added to Reg at
     grandparent or stepparent, etc.            Sec.  300.20(a)(3).
300.22--Related services:
    1. All related services may not be         1. In discussion under
     required.                                  Sec.  300.24.
    2. H. Rpt. on O/M services and travel      2. In discussion under
     training.                                  Sec.  300.24.
                                               --Travel training added
                                                as Sec.
                                                300.26(a)(2)(ii) and
                                                (b)(4).
    3. Use of paraprofessionals if consistent  3. In discussion under
     w/.136.                                    Secs.  300.24; 300.136.
    4. Transportation--same as nondisabled;    4. Added to Q-33 in
     accommodations.                            Appendix A.
300.24--Special education:
    * A child must need special         * Added to Reg as
     education to be eligible under Part B of   Sec.  300.(7)(a)(2); In
     the Act.                                   discussion under Sec.
                                                300.26.
300.27--Transition services:
    * May be special education or
     related services..
    List under Sec.  300.27(c) is not          * Added to Reg as
     exhaustive.                                Sec.  300.29(b).
                                               In discussion under Sec.
                                                300.29.
------------------------------------------------------------------------
                                Subpart B
------------------------------------------------------------------------
300.121--Free appropriate public education:
    1. FAPE obligation begins on 3rd birthday  1. Added to Reg as Sec.
                                                300.121(c).
    2. Re-child progressing from grade to      2. Added to Reg as Secs.
     grade.                                     300.121(e),
                                                300.125(a)(2)(ii), and
                                                Sec.  300.300(d).
300.122--Exception to FAPE for certain ages:
    1. FAPE and graduation...................  1. ``Prior notice'' added
                                                to Reg as Sec.
                                                300.122(a)(3)(iii).
                                               --A new Sec.
                                                300.534(c)(2) states
                                                that evaluation is not
                                                required for graduation
                                                with a regular diploma.
    2. H.Rpt. Re-students with disabilities    2. Added as Sec.
     in adult prisons.                          300.122(a)(2)(ii).
300.125--Child find:
    1. Collection of data subject to           1. Added to Reg as Sec.
     confidentiality.                           300.125(e).
    2. Services must be based on unique needs  2. Added to Reg as Sec.
                                                300.300(a)(3).
    3. Child find under Parts B and C........  3. Added to Reg as Sec.
                                                300.125(c).
    4. Extend child find to highly mobile      4. Added to Reg as Sec.
     children.                                  300.125(a)(2)(i).
300.127--Confidentiality of * * *
 information:
    * Reference to FERPA..............  * Deleted.
                                                (Already covered under
                                                300.560-300.576.)
300.130--Least restrictive environment:
    * H. Rpt. statement Re-continuum..  * Added to Reg at
                                                Sec.  300.130(a).
300.135--Comprehensive system of personnel
 development:
    * H.Rpt--Disseminate information    * In discussion
     on Ed research * * * States able to use    under Sec.  300.135.
     info--(a)(2) Re--SIP.
300.136--Personnel standards:
    1. Regs require States to use own highest  1. Added to Reg as Sec.
     requirements. Defs not limited to          300.136(b)(2).
     traditional categories.
    2. State may require * * * good faith      Added to Reg as Sec.
     effort * * * shortages.                    300.136(g)(2).
    3. If State only 1 entry-level degree,     3. Added to Reg as Sec.
     modification of standard to ensure FAPE    300.136(b)(4).
     won't violate (b)/(c).
300.138--Participation in assessments:
    * Only small no. children need      * In discussion
     alternate assmts.                          under Sec.  300.138.
300.139--Reports relating to assessments:
    * Re aggregate data ((b)), PA may   * In discussion
     also Rpt data other ways (e.g.,..          under Sec.  300.139.
     trendline * * *).
300.142--Methods of ensuring services:
    1. H.Rpt--Import. of ensuring services Re  1. Added to Reg at Sec.
     E/non-ed agencies* * *Medicaid.            300.142(b)(1)(ii).
    2. Intent of (e) = services @ no cost-     2. In discussion under
     parents.                                   Sec.  300.142.
    3. Pub Agency can pay certain pvt insur    3. Added to Reg at Sec.
     costs for parents.                         300.142(g).
    4. If PA receives $ from insurers to       4. Added to Reg at Sec.
     return the $.                              300.142(h)(2).
300.152--Prohibition against commingling:
    * Assurance is satisfied by sep     * Added to Reg as
     accounting system..                        Sec.  300.152(b).
300.185--Meeting the excess cost requirement:
    * LEA must spend certain minimum    * In discussion
     amount * * * Excess costs = costs of       under Sec.  300.185.
     special ed that exceed minimum.
300.232--Exception to maintenance of effort:
    * H.Rpt--Voluntary departure Re--   * Added to Reg as
     personnel paid at/ near top--scale;        Sec.  300.232(a)(2).
     guidelines to invoke exception.
300.234--Schoolwide programs:
    * Although funds may be combined,   * Added to Reg at
     disabled children must still receive       Sec.  300.234(c).
     services re-IEP.
200.241--Treatment of charter schools:

[[Page 12670]]

    * B-Regs that apply to pub schools  * In discussion
     also apply to charter schools; H.Rpt--     under Sec.  300.241.
     Expect full compliance.
------------------------------------------------------------------------
                                Subpart C
------------------------------------------------------------------------
300.300--Provision of FAPE:
    1. FAPE Requirement applies to disabled    1. In discussion under
     children in school and those with less     Sec.  300.300.
     severe disabilities.
    2. State must ensure child find fully      2. Added to Reg at Sec.
     implemented.                               300.300(a)(2).
    3. Why age range--child find is greater    3. In discussion under
     than FAPE.                                 Sec.  300.300.
300.302--Residential placement:
    * Requirement applies to            * In discussion
     placements in St. schools.                 under Sec.  300.302.
300.303--Proper functioning of hearing aids:
    * Statement from H. Rpt. on 1978    * In discussion
     appropriation bill related to status of    under Sec.  300.303.
     hearing aids.
300.304--Full educational opportunity goal:
    * S.Rpt (1975) on arts--Brooklyn    * In discussion
     Museum:.                                   under Sec.  300.304.
300.305--Program options:
    * List not exhaustive.............  * In discussion
                                                under Sec.  300.305.
300.307--Physical education:
    * H.Rpt (142)--Must assure PE       * In discussion
     available to all HC.                       under Sec.  300.307.
300.309--Extended school year services:
    1. LEA may not limit to particular         1. Added to Reg at Sec.
     categories or duration. All disabled       300.309(a)(3).
     children not entitled.
    2. States may establish standards * * *    2. In discussion under
     Factors may consider = likelihood of       Sec.  300.309.
     regression.
300.341--SEA Responsibility (Re--IEPs):
    * Section applies-all public        * Added to Reg as
     agencies, including other State agencies.  Sec.  300.341(b).
300.342--When IEPs must be in effect:
    1. It is expected that IEPs will be        1. In discussion under
     implemented immediately after the          Sec.  300.342.
     meeting (with exceptions).
    2. Requirements--incarcerated youth apply  2. Deleted.
     6-4-97.
    3. IEP vs IFSP--written informed consent.  3. In discussion under
                                                Sec.  300.342(c).
300.343--IEP meetings:
    * Offer of services within 60       * In discussion
     days--consent.                             under Sec.  300.343.
300.344--IEP Team:
    * Reg Ed teacher at IEP meeting =   * In discussion
     one who works with the child; if more      under Sec.  300.344
     than one--designate.
300.345--Parent participation:
    * Parent notice Re--bring           * Added to Reg as
     others..procedure used = agency            Sec.  300.345(b).
     discretion * * * But keep record of
     efforts.
300.346--Development; review, & revision of
 IEP:
    1. Importance Re--Consideration of         1. In discussion under
     special factors.                           Sec.  300.346.
    2. Re--``Deaf Students Educational         2. In discussion under
     Services'' (1992).                         Sec.  300.346.
    3. IEP team and LEP students.............  3. In discussion under
                                                Sec.  300.346.
300.347--Content of IEP:
    1. Import of transition services for       1. In discussion under
     students below 16.                         Sec.  300.347.
    2. H.Rpt Re--import of general curriculum  2. In discussion under
                                                Sec.  300.347.
    3. H.Rpt--Gen Curriculum--length of IEP    3. In discussion under
     vs adjustments.                            Sec.  300.347.
    4. H.Rpt--Teaching methods not in IEP....  4. In discussion under
                                                Sec.  300.347.
    5. Reports to parents on Annual Goals vs   5. In discussion under
     Reg. Reports.                              Sec.  300.347.
    6. H.Rpt--transition service needs vs      6. In discussion under
     services.                                  Sec.  300.347.
    7. OK for transition-needs/services below  7. In discussion under
     14 and 16.                                 Sec.  300.347.
300.350--IEP--accountability:
    * Public agency must make good      * Added to Reg as
     faith effort; parents have right to        Sec.  300.350(b).
     complain.
300.360--Use of LEA allocation for direct
 services:
    * If LEA doesn't apply for Pt. B    * Added to Reg at
     funds, SEA must use in LEA.                Sec.  300.360(b).
------------------------------------------------------------------------
                                Subpart D
------------------------------------------------------------------------
300.453--Expenditures:
    * LEAs may provide services beyond  * Added to Reg at
     those required.                            Sec.  300.453(d).
300.456--Location of services:
    1. Zobrest--Re on-site services..........  1. In discussion under
                                                Sec.  300.456.
    2. Transportation to from site * * * not   2. Added to Reg at Sec.
     from home.                                 300.456(b)(1).
------------------------------------------------------------------------
                                Subpart E
------------------------------------------------------------------------
300.500--Gen. Resp. of public agencies;
 definitions:
    * Parent consent, if revoked is     * Added to Reg at
     not retroactive.                           Sec.  300.500(b)(1)(iii)
                                                .
300.502--Independent educational evaluation:
    1. Parent not required to specify areas    1. Added to Reg at Sec.
     of disagreement.                           300.501(b).
    2. Pub agencies--should make info on IEEs  2. Added to Reg at Sec.
     widely available; may not require parent-  300.502(a)(2).
     evals meet all criteria.

[[Page 12671]]

300.505--Parental consent:
    1. Pub. agency may use due process to      1. In discussion under
     override refusal, unless doing so--        Sec.  300.503.
     inconsistent w/St law.
    2. PA must provide servs in any area not   2. In discussion under
     in dispute; if nec--FAPE--use override;    Sec.  300.503.
     may recons proposal.
    3. If parents refuse-reeval needed for     3. In discussion under
     servs, & St law prevnts override-reeval,   Sec.  300.503.
     PA may cease servs.
300.506 Mediation:
    1. H. Rep--If mediator not selected        1. Added to Reg at Sec.
     randomly Pub. agency and parents both      300.506(b)(2)(ii).
     must select.
    2. H. Rep--Preserve parental access Rts--  2. In discussion under
     FERPA; confidentiality pledge.             Sec.  300.506.
300.507--Impartial due process hearing;
 parent notice; disclosure:
    1. Determination of whether hearing        1. In discussion under
     request is based on new info must be       Sec.  300.507.
     made by HO.
    2. H. Rep. Re--Attorneys' fees; and the    2. In discussion under
     value of the parent notice requirement.    Sec.  300.507.
300.510--Finality of decision; appeal;
 impartial review:
    1. SEA may conduct review directly or      1. In discussion under
     thru another agency; but remains           Sec.  300.510.
     response for final decision.
    2. All parties have right to counsel; if   2. In discussion under
     Rev Officer holds a hearing, other         Sec.  300.510.
     rights in 300.509 apply.
300.513--Attorneys' fees:
    * A State may enact a law           * In discussion
     permitting HOs to award fees.              under Sec.  300.513.
300.514--Child's status during proceedings:
    * Public agency may use normal      * In discussion
     procedures for dealing with children who   under Sec.  300.514.
     are endangering themselves or others.
300.520--Authority of School personnel:
    1. Removal for 10 days or less--not a chg  1. In discussion under
     in placmt; a series of removals that       Sec.  300.520.
     total +10 days may be.
    2. PA need not conduct review in (b), but  2. In discussion under
     encouraged Ck if--serves in accord w/      Sec.  300.520.
     IEP..or addressed.
300.523--Manifestation determination review:
    1. H.Rpt--Ex of manifestation vs not * *   1. In discussion under
     * But not intended-- base finding on       Sec.  300.523.
     tech violation-IEP.
    2. If manifestation--LEA must correct any  2. Added to Reg at Sec.
     deficiencies found.                        300.523(f).
300.524--Determination that behavior not a
 manifestation of disability:
    * During pendency--child remains    * In discussion
     in current placmt or placmt under          under Sec.  300.524.
     300.526, whichever applies.
300.526--Placement during appeals:
    * An LEA may seek subsequent        * Added to Reg as
     expedited hearings if child still          Sec.  300.526(c)(4).
     dangerous & issue not resolved.
300.532--Evaluation procedures:
    1. Re LEP--accurate assmt of child's lang  1. In discussion under
     proficency.                                Sec.  300.532.
    2. If no one at sch Re-LEP, contact LEAs,  2. In discussion under
     IHEs.                                      Sec.  300.532.
    3. If assmt not done under standard        3. Added to Reg as Sec.
     conditions, include in eval Rpt. Info      300.532(a)(2).
     needed by team.
300.533--Determination of needed evaluation
 data:
    * Purpose of review by a group;     * In discussion
     composition of team will vary depending    under Sec.  300.533.
     on nature or disability.
300.535--Procedures for determining
 eligibility and placement:
    * All eval sources not required     * In discussion
     for each child.                            under Sec.  300.535.
300.551--Continuum of alternative placements:
    * Home instruction usually only     * In discussion
     for limited No. children (medically        under Sec.  300.551.
     fragile).
300.552--Placements:
    1. Group in (a)(1) could also be IEP       1. In discussion under
     team--if .344.                             Sec.  300.552.
    2. Main rule in LRE = indiv decisions +    2. Added to Reg at Sec.
     alternate placmts; applicability to        300.552.
     preschool children.
    3. If IEP team considers-provides for      3. In discussion under
     behavioral interventions * * * many        Sec.  300.552.
     disruptive children-Reg cl.
300.553--Nonacademic settings:
    * Section taken from 504 Regs.....  * In discussion
                                                under Sec.  300.553.
300.554--Children in public or private
 institutions:
    * LRE provisions apply to Children  * In discussion
     in public and private institutions.        under Sec.  300.554.
300.573--Destruction of information:
    * Info may be kept forever unless   * In discussion
     parents reject; (Why records are           under Sec.  300.573.
     important * * *).
300.574--Children's rights:
    1. Under FERPA Regs, Rts transfer at age   1. Added to Reg at Sec.
     18.                                        300.574(b).
    2. If Rts transfer re-.517, Rts re Ed-     2. Added to Reg at Sec.
     records also transfer; but public agency   300.574(c).
     must give 615 notice to parents and
     student.
300.587--Enforcement:
    * Other enforcement actions         * In discussion
     include cease and desist order * * * and   under Sec.  300.587.
     a compliance agreement.
------------------------------------------------------------------------

[[Page 12672]]

                                Subpart F
------------------------------------------------------------------------
300.600--Responsibility for all educational
 programs:
    * Provision = Congressional         * In discussion
     desire--central point of contact. S.Rpt    under Sec.  300.600.
     (1975) * * * Options.
300.623--Amount required for subgrants to
 LEAs':
    * Amt. required for subgrants will  * In discussion
     vary--yr-to-yr. $ for subgrants 1 yr       under Sec.  300.623.
     become flow-thru in next.
300.624--State discretion in awarding
 subgrants:
    * Purpose of subgrants to LEAs--to  * In discussion
     provide $ SEA can direct Re needs--can't   under Sec.  300.624.
     address Re-formula-$.
300.650--Establishment of Advisory panels:
    * Panel must advise on students in  * Added to Reg at
     Adult prisons.                             Sec.  300.652(b).
300.660--Adoption of State complaint
 procedures:
    * SEA may award compensory damages  * Added to Reg at
     Re-denial of FAPE.                         Sec.  300.660(b).
300.661--Minimum State complaint procedures:
    1. If complaint also subject of a          1. Added to Reg at Sec.
     hearing, must set aside any part           300.661(c)(1).
     addressed-hearing; but resolve the rest.
    2. If issue in complaint already decided   2. Added to Reg at Sec.
     in a hearing (same parties), H-decision    300.661(c)(2).
     = binding.
300.662--Filing a complaint:
    * SEA must resolve complaint, even  * Added to Reg at
     if it is filed by indiv-organization in    Sec.  300.662(a).
     another State.
------------------------------------------------------------------------
                                Subpart G
------------------------------------------------------------------------
300.712--Allocations to LEAs:
    * Re-85%--use best data available;  * Added to Reg at
     new data not needed-pvt schs. Re-15%--     Sec.  300.712.
     use best (Examples).
300.750--Annual report of children served-
 report requirement:
    * Report--solely for allocation     * In discussion
     purposes; count may differ from children   under Sec.  300.750.
     who receive FAPE.
300.753--Annual report of children served-
 criteria for counting children:
    1. State may count children in Head Start  1. Covered by reg. note
     if Sp Ed.                                  deleted.
    2. Criteria related to counting children   2. Covered by reg. note
     in private schools and certain Indian      deleted.
     children.
300.754--Annual report of children served-
 other responsibilities of SEA:
    * Data are not to go to Secretary   * In discussion
     in personally identifiable form.           under Sec.  300.754.
------------------------------------------------------------------------
                                Part 303
------------------------------------------------------------------------
303.19--Parent:
    * Definition: examples of           * Added to Reg in
     grandparent, stepparent.                   Sec.  303.19(a)(3).
303.510--Adopting Complaint Procedures:
    1. Complaints can be against any public    1. Public/private added
     agency or private provider; these          to Reg in Sec.
     procedures are in addition to other        303.510(a)(1); ``other
     rights.                                    rights'' in discussion
                                                under Sec.  303.512.
    2. Compensatory services possible........  2. Added to Reg in Sec.
                                                303.510(b).
303.511--An organization or individual may
 file a complaint:
    * Complaints from out-of-state OK.  * Added to Reg in
                                                Sec.  303.510(a)(1).
303.512--Minimum State complaint procedures:
    1. Same issues in complaint and due        1. Added to Reg in Sec.
     process hearing.                           303.512(c)(1).
    2. Issues previously decided in due        2. Added to Reg in Sec.
     process hearing.                           303.512(c)(2).
303.520--Policies related to payment for
 services:
    1. Use of private insurance must be        1. Deleted.
     voluntary.
    2. State can use Part C funds to pay       2. Deleted.
     insurance costs.
    3. Insurance reimbursements not treated    3. ``Program income''
     as program income; spending Federal        added to discussion
     reimbursements doesn't violate             under Sec.  303.512;
     nonsupplanting rule.                       ``nonsupplanting'' added
                                                to Reg in Sec.
                                                303.512(d)(2).
------------------------------------------------------------------------
\1\ All notes have been removed as notes from the regulations. The
  substance of certain notes has been added to the text of the
  regulation, or included in the Notice of Interpretation on IEPs in
  ``Appendix A.'' A description of each of these notes (and most of the
  other notes in the NPRM) is included in the ``discussion'' under the
  Analysis of Comments (Attachment 1 to the final regulations). Column
  II, above, describes the primary action taken with each note (e.g.,
  (1) ``Added to Reg * * *'' (or to Appendix A); (2) ``In discussion
  under * * *;'' or ``Deleted.'')

[FR Doc. 99-5754 Filed 3-11-99; 8:45 am]
BILLING CODE 4000-01-P