FR Doc 06-6656

[Federal Register: August 14, 2006 (Volume 71, Number 156)]
[Rules and Regulations]               
[Page 46539-46845]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14au06-14]                         
 

[[Page 46539]]
Download: download files
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Part II





Department of Education





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34 CFR Parts 300 and 301



Assistance to States for the Education of Children With Disabilities 
and Preschool Grants for Children With Disabilities; Final Rule


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DEPARTMENT OF EDUCATION

34 CFR Parts 300 and 301

RIN 1820-AB57

 
Assistance to States for the Education of Children With 
Disabilities and Preschool Grants for Children With Disabilities

AGENCY: Office of Special Education and Rehabilitative Services, 
Department of Education.

ACTION: Final regulations.

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SUMMARY: The Secretary issues final regulations governing the 
Assistance to States for Education of Children with Disabilities 
Program and the Preschool Grants for Children with Disabilities 
Program. These regulations are needed to implement changes made to the 
Individuals with Disabilities Education Act, as amended by the 
Individuals with Disabilities Education Improvement Act of 2004 (Act or 
IDEA).

DATES: These regulations take effect on October 13, 2006.

FOR FURTHER INFORMATION CONTACT: Alexa Posny, U.S. Department of 
Education, Potomac Center Plaza, 550 12th Street, SW., Washington, DC 
20202-2641. Telephone: (202) 245-7459, ext. 3.
    If you use a telecommunications device for the deaf (TDD), you may 
call the Federal Relay System (FRS) at 1-800-877-8339.
    Individuals with disabilities may obtain this document in an 
alternate format (e.g., Braille, large print, audiotape, or computer 
diskette) on request to the contact person listed under FOR FURTHER 
INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION: These regulations implement changes in the 
regulations governing the Assistance to States for Education of 
Children with Disabilities Program and the Preschool Grants for 
Children with Disabilities Program necessitated by the reauthorization 
of the IDEA. With the issuance of these final regulations, part 301 has 
been removed and the regulations implementing the Preschool Grants for 
Children with Disabilities Program are included under subpart H of 
these final regulations.
    On June 21, 2005, the Secretary published a notice of proposed 
rulemaking in the Federal Register (70 FR 35782) (NPRM) to amend the 
regulations governing the Assistance to States for Education of 
Children with Disabilities Program, the Preschool Grants for Children 
with Disabilities Program, and Service Obligations under Special 
Education Personnel Development to Improve Services and Results for 
Children with Disabilities. In the preamble to the NPRM, the Secretary 
discussed, on pages 35783 through 35819, the changes proposed to the 
regulations for these programs; specifically, the amendments to 34 CFR 
part 300, the removal of 34 CFR part 301 and relocation of those 
provisions to subpart H of 34 CFR part 300, and the amendments to 34 
CFR part 304.
    Final regulations for 34 CFR Part 304--Special Education-Personnel 
Development to Improve Services and Results for Children with 
Disabilities were published in the Federal Register (71 FR 32396) on 
June 5, 2006, and became effective July 5, 2006.

Major Changes in the Regulations

    The following is a summary of the major substantive changes in 
these final regulations from the regulations proposed in the NPRM (the 
rationale for each of these changes is discussed in the Analysis of 
Comments and Changes section of this preamble):

Subpart A--General

Definitions

    • The definition of child with a disability in Sec.  300.8 
has been revised as follows:
    (1) Section 300.8(b) (Children aged three through nine experiencing 
developmental delays) has been changed to clarify that the use of the 
term ``developmental delay'' is subject to the conditions described in 
Sec.  300.111(b).
    (2) The definition of other health impairment in Sec.  
300.8(c)(9)(i) has been changed to add ``Tourette Syndrome'' to the 
list of chronic or acute health problems.
    • The definition of excess costs in Sec.  300.16 has been 
revised to clarify that the computation of excess costs may not include 
capital outlay and debt service. In addition, a new ``Appendix A to 
Part 300--Excess Cost Calculation'' has been added to provide a 
description (and an example) of how to calculate excess costs under the 
Act and these regulations.
    • The definition of highly qualified special education 
teacher in Sec.  300.18 has been revised, as follows:
    (1) Section 300.18(b), regarding requirements for highly qualified 
special education teachers in general, has been modified to clarify 
that, when used with respect to any special education teacher teaching 
in a charter school, highly qualified means that the teacher meets the 
certification or licensing requirements, if any, set forth in the 
State's public charter school law.
    (2) A new Sec.  300.18(e), regarding separate ``high objective 
uniform State standards of evaluation'' (HOUSSE), has been added to 
provide that a State may develop a separate HOUSSE for special 
education teachers, provided that any adaptations of the State's HOUSSE 
would not establish a lower standard for the content knowledge 
requirements for special education teachers and meets all the 
requirements for a HOUSSE for regular education teachers. This 
provision also clarifies that a State may develop a separate HOUSSE for 
special education teachers, which may include single HOUSSE evaluations 
that cover multiple subjects.
    (3) Section 300.18(g) (proposed Sec.  300.18(f)) (``Applicability 
of definition to ESEA requirements; and clarification of new special 
education teacher'') has been revised as follows: (1) The heading has 
been revised, and (2) the language changed to clarify when a special 
education teacher is considered ``new'' for some purposes.
    (4) Section 300.18(h) (proposed Sec.  300.18(g)) has been modified 
to clarify that the highly qualified special education teacher 
requirements also do not apply to private school teachers hired or 
contracted by LEAs to provide equitable services to parentally-placed 
private school children with disabilities under Sec.  300.138.
    • The definition of Indian and Indian tribe in Sec.  300.21 
has been changed to clarify that nothing in the definition is intended 
to indicate that the Secretary of the Interior is required to provide 
services or funding to a State Indian tribe that is not listed in the 
Federal Register list of Indian entities recognized as eligible to 
receive services from the United States, published pursuant to Section 
104 of the Federally Recognized Indian Tribe List Act of 1994, 25 
U.S.C. 479a-1.
    • The definition of parent in Sec.  300.30 has been revised 
to substitute ``biological'' for ``natural'' each time it appears in 
the definition, and to add language clarifying that to be considered a 
parent under this definition a ``guardian'' must be a person generally 
authorized to act as the child's parent, or authorized to make 
educational decisions for the child.
    • The definition of related services in Sec.  300.34 has 
been revised as follows:
    (1) Section 300.34(a) (General) has been modified to (A) add the 
statutory term ``early identification and assessment of disabilities in 
children,'' which was inadvertently omitted from the NPRM, (B) combine 
``school health services'' and ``school nurse services,'' and (C) 
remove the clause relating to a free appropriate public education under

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``school nurse services'' because it duplicates the clause in Sec.  
300.34(c)(13).
    (2) Section 300.34(b) has been changed to (A) expand the title to 
read ``Exception; services that apply to children with surgically 
implanted devices, including cochlear implants,'' and (B) clarify, in 
new paragraph (b)(1), that related services do not include a medical 
device that is surgically implanted, the optimization of that device's 
functioning (e.g., mapping), maintenance of that device, or the 
replacement of that device.
    (3) A new Sec.  300.34(b)(2) has been added to make clear that 
nothing in paragraph (b)(1) of Sec.  300.34 (A) limits the right of a 
child with a surgically implanted device (e.g., a cochlear implant) to 
receive related services, as listed in Sec.  300.34(a), that are 
determined by the IEP Team to be necessary for the child to receive 
FAPE; (B) limits the responsibility of a public agency to appropriately 
monitor and maintain medical devices that are needed to maintain the 
health and safety of the child, including breathing, nutrition, or 
operation of other bodily functions, while the child is transported to 
and from school or is at school; or (C) prevents the routine checking 
of an external component of a surgically-implanted device to make sure 
it is functioning properly, as required in Sec.  300.113(b).
    (4) The definition of interpreting services in Sec.  300.34(c)(4) 
has been changed to clarify that the term includes (A) transcription 
services, such as communication access real-time translation (CART), C-
Print, and TypeWell for children who are deaf or hard of hearing, and 
(B) special interpreting services for children who are deaf-blind.
    (5) The definition of orientation and mobility services in Sec.  
300.34(c)(7) has been changed to remove the term ``travel training 
instruction.'' The term is under the definition of special education, 
and is defined in Sec.  300.39(b)(4).
    (6) The definition of school nurse services in 300.34(c)(13) has 
been expanded and re-named school health services and school nurse 
services. The expanded definition clarifies that ``school nurse 
services'' are provided by a qualified school nurse, and ``school 
health services'' may be provided by a qualified school nurse or other 
qualified person.
    • A definition of scientifically based research has been 
added in new Sec.  300.35 that incorporates by reference the definition 
of that term from the Elementary and Secondary Education Act of 1965, 
as amended, 20 U.S.C. 6301 et seq. (ESEA).
    With the addition of the new definition in Sec.  300.35, the 
definitions in subpart A, beginning with the definition of secondary 
school, have been renumbered.
    • The definition of special education in Sec.  300.39 
(proposed Sec.  300.38) has been revised to remove the definition of 
vocational and technical education that was included in proposed Sec.  
300.38(b)(6).
    • The definition of supplementary aids and services in Sec.  
300.42 (proposed Sec.  300.41) has been modified to specify that aids, 
services, and other supports are also provided to enable children with 
disabilities to participate in extracurricular and nonacademic 
settings.

Subpart B--State Eligibility

FAPE Requirements

    • Section 300.101(c) has been revised to clarify that a free 
appropriate public education (FAPE) must be available to any individual 
child with a disability who needs special education and related 
services, even though the child has not failed or been retained in a 
course, and is advancing from grade to grade.
    • Section 300.102(a)(3), regarding exceptions to FAPE, has 
been changed to clarify that a regular high school diploma does not 
include an alternative degree that is not fully aligned with the 
State's academic standards, such as a certificate or a general 
educational development credential (GED).
    • Section 300.105, regarding assistive technology and proper 
functioning of hearing aids, has been re-titled ``Assistive 
technology,'' and proposed paragraph (b), regarding the proper 
functioning of hearing aids, has been moved to new Sec.  300.113(a).
    • Section 300.107(a), regarding nonacademic services, has 
been revised to specify the steps each public agency must take, 
including the provision of supplementary aids and services determined 
appropriate and necessary by the child's IEP Team, to provide 
nonacademic and extracurricular services and activities in the manner 
necessary to afford children with disabilities an equal opportunity for 
participation in those services and activities.
    • Proposed Sec.  300.108(a), regarding physical education 
services, has been revised to specify that physical education must be 
made available to all children with disabilities receiving FAPE, unless 
the public agency enrolls children without disabilities and does not 
provide physical education to children without disabilities in the same 
grades.
    • A new Sec.  300.113, regarding routine checking of hearing 
aids and external components of surgically implanted medical devices, 
has been added, as follows:
    (1) Paragraph (a) of Sec.  300.113 requires each public agency to 
ensure that hearing aids worn in school by children with hearing 
impairments, including deafness, are functioning properly.
    (2) A new Sec.  300.113(b)(1) requires each public agency to ensure 
that the external components of surgically implanted medical devices 
are functioning properly. However, new Sec.  300.113(b)(2) has been 
added to make it clear that, for a child with a surgically implanted 
medical device who is receiving special education and related services, 
a public agency is not responsible for the post-surgical maintenance, 
programming, or replacement of the medical device that has been 
surgically implanted (or of an external component of the surgically 
implanted medical device).

Least Restrictive Environment

    • Section 300.116(b)(3) and (c) regarding placements, has 
been revised to remove the qualification ``unless the parent agrees 
otherwise'' from the requirements that (1) the child's placement be as 
close as possible to the child's home, and (2) the child is educated in 
the school he or she would attend if not disabled.
    • Section 300.117 (Nonacademic settings) has been changed to 
clarify that each public agency must ensure that each child with a 
disability has the supplementary aids and services determined by the 
child's individualized education program (IEP) Team to be appropriate 
and necessary for the child to participate with nondisabled children in 
the extracurricular services and activities to the maximum extent 
appropriate to the needs of that child.

Children With Disabilities Enrolled by Their Parents in Private Schools

    • Section 300.130 (definition of parentally-placed private 
school children with disabilities) has been revised to clarify that the 
term means children with disabilities enrolled by their parents in 
private, including religious, schools or facilities, that meet the 
definition of elementary school in Sec.  300.13 or secondary school in 
Sec.  300.36.
    • A new Sec.  300.131(f), regarding child find for out-of-
State parentally-placed private school children with disabilities, has 
been added to clarify that each LEA

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in which private (including religious) elementary schools and secondary 
schools are located must include parentally-placed private school 
children who reside in a State other than the State in which the 
private schools that they attend are located.
    • Section 300.133, regarding expenditures for parentally-
placed private school children with disabilities, has been revised, as 
follows:
    (1) A new Sec.  300.133(a)(2)(ii), has been added to clarify that 
children aged three through five are considered to be parentally-placed 
private school children with disabilities enrolled by their parents in 
private, including religious, elementary schools, if they are enrolled 
in a private school that meets the definition of elementary school in 
Sec.  300.13.
    (2) A new Sec.  300.133(a)(3) has been added to specify that, if an 
LEA has not expended for equitable services for parentally-placed 
private school children with disabilities all of the applicable funds 
described in Sec.  300.133(a)(1) and (a)(2) by the end of the fiscal 
year for which Congress appropriated the funds, the LEA must obligate 
the remaining funds for special education and related services 
(including direct services) to parentally-placed private school 
children with disabilities during a carry-over period of one additional 
year.
    • Section 300.136, regarding compliance related to 
parentally-placed private school children with disabilities, has been 
revised to remove the requirement that private school officials must 
submit complaints to the SEA using the procedures in Sec. Sec.  300.151 
through 300.153.
    • Section 300.138(a), regarding the requirement that 
services to parentally-placed private school children with disabilities 
must be provided by personnel meeting the same standards as personnel 
providing services in the public schools, has been modified to clarify 
that private elementary school and secondary school teachers who are 
providing equitable services to parentally-placed private school 
children with disabilities do not have to meet the highly qualified 
special education teacher requirements in Sec.  300.18.
    • Section 300.140, regarding due process complaints and 
State complaints, has been revised to make the following changes:
    (1) Section 300.140(b)(1) (proposed Sec.  300.140(a)(2)), regarding 
child find complaints, has been changed to clarify that the procedures 
in Sec. Sec.  300.504 through 300.519 apply to complaints that an LEA 
has failed to meet the child find requirements in Sec.  300.131, 
including the requirements in Sec. Sec.  300.301 through 300.311.
    (2) A new paragraph (b)(2) has been added to provide that any due 
process complaint regarding the child find requirements (as described 
in Sec.  300.140(b)(1)) must be filed with the LEA in which the private 
school is located and a copy of the complaint must be forwarded to the 
SEA.
    (3) A new Sec.  300.140(c), regarding State complaints by private 
school officials, has been added to clarify that (A) any complaint that 
an SEA or LEA has failed to meet the requirements in Sec. Sec.  300.132 
through 300.135 and 300.137 through 300.144 must be filed in accordance 
with the procedures described in Sec. Sec.  300.151 through 300.153, 
and (B) a complaint filed by a private school official under Sec.  
300.136(a) must be filed with the SEA in accordance with the procedures 
in Sec.  300.136(b).

Children With Disabilities Enrolled by Their Parents in Private Schools 
When FAPE Is at Issue

Section 300.148 Placement of Children by Parents if FAPE Is at Issue
    • A new Sec.  300.148(b), regarding disagreements about 
FAPE, has been added (from current Sec.  300.403(b)) to clarify that 
disagreements between a parent and a public agency regarding the 
availability of a program appropriate for a child with a disability, 
and the question of financial reimbursement, are subject to the due 
process procedures in Sec. Sec.  300.504 through 300.520.

State Complaint Procedures

    • Section 300.152(a)(3)(ii) (proposed paragraph (a)(3)(B)) 
has been revised to clarify that each SEA's complaint procedures must 
provide the public agency with an opportunity to respond to a complaint 
filed under Sec.  300.153, including, at a minimum, an opportunity for 
a parent who has filed a complaint and the public agency to voluntarily 
engage in mediation consistent with Sec.  300.506.
    • Section 300.152(b)(1)(ii), regarding time extensions for 
filing a State complaint, has been revised to clarify that it would be 
permissible to extend the 60-day timeline if the parent (or individual 
or organization if mediation or other alternative means of dispute 
resolution is available to the individual or organization under State 
procedures) and the public agency agree to engage in mediation or to 
engage in other alternative means of dispute resolution, if available 
in the State.
    • Section 300.152(c), regarding complaints filed under Sec.  
300.152 and due process hearings under Sec.  300.507 and Sec. Sec.  
300.530 through 300.532, has been revised to clarify that if a written 
complaint is received that is also the subject of a due process hearing 
under Sec. Sec.  300.507 or 300.530 through 300.532, or contains 
multiple issues of which one or more are part of a due process hearing, 
the State must set aside any part of the complaint that is being 
addressed in the due process hearing until the conclusion of the 
hearing. However, any issue in the complaint that is not part of the 
due process hearing must be resolved using the time limit and 
procedures described elsewhere in the State complaint procedures. A new 
paragraph (c)(3) also has been added to require SEAs to resolve 
complaints alleging a public agency's failure to implement a due 
process hearing. This is the same requirement in current Sec.  
300.661(c)(3).
    • Section 300.153(c), regarding the one year time limit from 
the date the alleged violation occurred and the date the complaint is 
received in accordance with Sec.  300.151, has been revised by removing 
the exception clause related to complaints covered under Sec.  
300.507(a)(2).

Methods of Ensuring Services

    • Section 300.154(d), regarding children with disabilities 
who are covered by public benefits or insurance, has been revised to 
clarify that the public agency must (1) obtain parental consent each 
time that access to the parent's public benefits or insurance is 
sought, and (2) notify parents that refusal to allow access to their 
public benefits or insurance does not relieve the public agency of its 
responsibility to ensure that all required services are provided at no 
cost to the parents.

Additional Eligibility Requirements

    • Section 300.156(e), regarding personnel qualifications, 
has been revised (1) to add ``or a class of students,'' to clarify that 
a judicial action on behalf of a class of students may not be filed for 
failure of a particular SEA or LEA employee to be highly qualified, and 
(2) to substitute the word ``employee'' for ``staff person,'' to be 
more precise in the rule of construction in new Sec.  300.18(f) 
(proposed Sec.  300.18(e)).
    • Section 300.160 (participation in assessments) has been 
removed, and the section has been designated as ``Reserved.'' 
Participation in assessments is the subject of a new notice of proposed 
rulemaking issued on December 15, 2005 (70 FR 74624) to amend the 
regulations governing programs under Title I of the ESEA and

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Part B of the IDEA regarding additional flexibility for States to 
measure the achievement of children with disabilities based on modified 
achievement standards.

Other Provisions Required for State Eligibility

    • Section 300.172, regarding access to instructional 
materials, has been revised: (1) To make clear that States must adopt 
the National Instructional Materials Accessibility Standard (NIMAS), 
published as Appendix C to these final regulations; (2) to establish a 
definition of ``timely manner,'' for purposes of Sec.  300.172(b)(2) 
and (b)(3) if the State is not coordinating with the National 
Instructional Materials Access Center (NIMAC), or Sec.  300.172(b)(3) 
and (c)(2) if the State is coordinating with the NIMAC; (3) to add a 
new Sec.  300.172(b)(4) to require SEAs to ensure that all public 
agencies take all reasonable steps to provide instructional materials 
in accessible formats to children with disabilities who need those 
instructional materials at the same time as other children receive 
instructional materials; and (4) to add a new Sec.  300.172(e)(2) to 
clarify, that all definitions in Sec.  300.172(e)(1) apply to each 
State and LEA, whether or not the State or LEA chooses to coordinate 
with the NIMAC.
    • A new Sec.  300.177 has been added to include a provision 
regarding ``States' sovereign immunity.'' That provision, which has 
been added to incorporate the language in section 604 of the Act, makes 
clear that a State that accepts funds under Part B of the Act waives 
its immunity under the 11th amendment of the Constitution of the United 
States from suit in Federal court for a violation of Part B of the Act.

Subpart D--Evaluations, Eligibility Determinations, Individualized 
Education Programs, and Educational Placements

Parental Consent

    • Section 300.300, regarding parental consent, has been 
revised, as follows:
    (1) Paragraph (a) of Sec.  300.300, regarding consent for initial 
evaluation, has been changed to provide that the public agency 
proposing to conduct an initial evaluation to determine if a child 
qualifies as a child with a disability must, after providing notice 
consistent with Sec. Sec.  300.503 and 300.504, obtain informed 
consent, consistent with Sec.  300.9, from the parent of the child 
before conducting the evaluation. A new paragraph (a)(1)(iii) has been 
added to require a public agency to make reasonable efforts to obtain 
the informed consent from the parent for an initial evaluation.
    (2) Section 300.300(a)(3), regarding a parent's failure to provide 
consent for initial evaluation, has been changed to clarify, in a new 
paragraph (a)(3)(ii), that the public agency does not violate its 
obligation under Sec.  300.111 and Sec. Sec.  300.301 through 300.311 
if it declines to pursue the evaluation.
    (3) Section 300.300(b), regarding parental consent for services, 
has been modified by a new paragraph (b)(2) that requires a public 
agency to make reasonable efforts to obtain informed consent from the 
parent for the initial provision of special education and related 
services.
    (4) Section 300.300(c)(1), regarding parental consent for 
reevaluations, has been modified to clarify that if a parent refuses to 
consent to a reevaluation, the public agency may, but is not required 
to, pursue the reevaluation by using the consent override procedures in 
Sec.  300.300(a)(3), and the public agency does not violate its 
obligation under Sec.  300.111 and Sec. Sec.  300.301 through 300.311 
if it declines to pursue the evaluation or reevaluation.
    (5) A new Sec.  300.300(d)(4) has been added to provide that if a 
parent of a child who is home schooled or placed in a private school by 
the parent at the parent's expense, does not provide consent for an 
initial evaluation or a reevaluation, or the parent fails to respond to 
a request to provide consent, the public agency (A) may not use the 
consent override procedures (described elsewhere in Sec.  300.300), and 
(B) is not required to consider the child eligible for services under 
the requirements relating to parentally-placed private school children 
with disabilities (Sec. Sec.  300.132 through 300.144).
    (6) A new Sec.  300.300(d)(5) has been added to clarify that in 
order for a public agency to meet the reasonable efforts requirement to 
obtain informed parental consent for an initial evaluation, initial 
services, or a reevaluation, a public agency must document its attempts 
to obtain parental consent using the procedures in Sec.  300.322(d).

Additional Procedures for Evaluating Children With Specific Learning 
Disabilities (SLD)

    • Section 300.307 (Specific learning disabilities) has been 
revised, as follows:
    (1) Proposed paragraph (a)(1) of Sec.  300.307, which allowed a 
State to prohibit the use of a severe discrepancy between intellectual 
ability and achievement for determining if a child has an SLD, has been 
removed, and proposed paragraph (a)(2) of Sec.  300.307 has been 
redesignated as paragraph (a)(1).
    (2) Section 300.307(a)(2) (proposed paragraph (a)(3)) has been 
changed to clarify that the criteria adopted by the State must permit 
the use of a process based on the child's response to scientific, 
research-based intervention.
    • Section 300.308 (Group members) has been changed to 
require the eligibility group for children suspected of having SLD to 
include the child's parents and a team of qualified professionals, 
which must include the child's regular teacher (or if the child does 
not have a regular teacher, a regular classroom teacher qualified to 
teach a child of his or her age) or for a child of less than school 
age, an individual qualified by the SEA to teach a child of his or her 
age; and at least one person qualified to conduct individual diagnostic 
examinations of children, such as a school psychologist, speech-
language pathologist, or remedial reading teacher. These are the same 
requirements in current Sec.  300.540.
    • Section 300.309 (Determining the existence of a specific 
learning disability) has been revised, as follows:
    (1) Paragraph (a) of Sec.  300.309 has been changed (A) to clarify 
that the group described in 300.306 may determine that a child has a 
specific learning disability if the child does not achieve adequately 
for the child's age or to meet State-approved grade-level standards in 
one or more of eight areas (e.g., oral expression, basic reading skill, 
etc.), when provided with learning experiences and instruction 
appropriate for the child's age or State-approved grade-level 
standards; and (B) to add ``limited English proficiency'' to the other 
five conditions that could account for the child's learning problems, 
and that the group considers in determining whether the child has an 
SLD.
    (2) Section 300.309(b) has been changed to clarify (A) that, in 
order to ensure that underachievement in a child suspected of having an 
SLD is not due to lack of appropriate instruction in reading or math, 
the group must consider, as part of the evaluation described in 
Sec. Sec.  300.304 through 300.306, data that demonstrate that prior 
to, or as a part of, the referral process, the child was provided 
appropriate instruction in regular education settings, delivered by 
qualified personnel, and (B) to replace (in paragraph (b)(1)) the term 
``high quality research-based instruction'' with ``appropriate 
instruction.''
    (3) Section 300.309(c) has been changed to provide that the public 
agency must promptly request parental

[[Page 46544]]

consent to evaluate a child suspected of having an SLD who has not made 
adequate progress after an appropriate period of time when provided 
appropriate instruction, and whenever a child is referred for an 
evaluation.
    • Section 300.310, regarding Observation, has been revised, 
as follows:
    (1) Paragraph (a) of proposed Sec.  300.310 has been revised (A) to 
remove the phrase ``trained in observation, and (B) to specify that the 
public agency must ensure that the child is observed in the child's 
learning environment.
    (2) A new Sec.  300.310(b) has been added to require the 
eligibility group to decide to (A) use information obtained from an 
observation in routine classroom instruction and monitoring of the 
child's performance that was done before the child was referred for an 
evaluation, or (B) have at least one member of the group described in 
Sec.  300.306(a)(1) conduct an observation of the child's academic 
performance in the regular classroom after the child has been referred 
for an evaluation and parental consent is obtained.
    Paragraph (b) of proposed Sec.  300.310 has been redesignated as 
new Sec.  300.310(c).
    • Section 300.311 (Written report) has been renamed 
``Specific documentation for the eligibility determination,'' and has 
been revised, as follows:
    (1) Section 300.311(a)(5), regarding whether the child does not 
achieve commensurate with the child's age, has been modified and 
expanded to add whether the child does not achieve adequately for the 
child's age or to meet State-approved grade-level standards consistent 
with Sec.  300.309(a)(1), and (A) the child does not make sufficient 
progress to meet age or to meet State-approved grade-level standards 
consistent with Sec.  300.309(a)(2)(i), or (B) the child exhibits a 
pattern of strengths and weaknesses in performance, achievement, or 
both, relative to age, State-approved grade level standards or 
intellectual development consistent with Sec.  300.309(a)(2)(ii).
    (2) Proposed Sec.  300.311(a)(6), regarding whether there are 
strengths or weaknesses or both in performance or achievement or both 
relative to intellectual development, has been removed.
    (3) A new Sec.  300.311(a)(6) has been added to clarify that the 
documentation must include a statement of the determination of the 
group concerning the effects of visual, hearing, or motor disability, 
mental retardation, emotional disturbance, cultural factors, 
environmental or economic disadvantage, or limited English proficiency 
on the child's achievement level.
    (4) A new Sec.  300.311(a)(7) has been added to provide that if the 
child has participated in a process that assesses the child's response 
to scientific, research-based intervention, the documentation must 
include the instructional strategies used and the student-centered data 
collected, and documentation that the child's parents were notified 
about (A) the State's policies regarding the amount and nature of 
student performance data that would be collected and the general 
education services that would be provided, (B) strategies for 
increasing the child's rate of learning, and (C) the parents' right to 
request an evaluation.

Individualized Education Programs

    • Section 300.320 (Definition of IEP) has been revised in 
paragraph (a)(5) to replace ``regular education environment'' with 
``regular class,'' in order to be consistent with the language in the 
Act.
    • Section 300.321(e), regarding attendance at IEP Team 
meetings, has been revised to clarify that the excusal of IEP Team 
members from attending an IEP Team meeting under certain circumstances, 
refers to the IEP Team members in Sec.  300.320(a)(2) through (a)(5).
    • Section 300.322, regarding parent participation, has been 
revised to: (1) Include, in Sec.  300.322(d), examples of the records a 
public agency must keep of its attempts to involve the parents in IEP 
meetings; (2) add a new Sec.  300.322(e), which requires the public 
agency to take whatever action is necessary to ensure that the parent 
understands the proceedings of the IEP meeting, including arranging for 
an interpreter for parents with deafness or whose native language is 
other than English; and (3) redesignate paragraph (e) as paragraph (f) 
accordingly.
    • Section 300.323(d) has been revised to require public 
agencies to ensure that each regular teacher, special education 
teacher, related services provider, and any other service provider who 
is responsible for the implementation of a child's IEP, is informed of 
his or her specific responsibilities related to implementing the 
child's IEP and the specific accommodations, modifications, and 
supports that must be provided for the child in accordance with the 
child's IEP. These are the same requirements in current Sec.  
300.342(b)(3)(i) and (b)(3)(ii).
    • Section 300.323(e), regarding IEPs for children who 
transfer public agencies, has been revised to: (1) Divide the provision 
into three separate paragraphs (Sec.  300.323(e), (f), and (g)) for 
purposes of clarity and improved readability (e.g., transfers within 
the same State, transfers from another State, and transmittal of 
records); (2) adopt ``school year'' in lieu of ``academic year'' as the 
term commonly used by parents and public agencies; and (3) adopt other 
modifiers (e.g., ``new'' and ``previous'') to distinguish between 
States and public agencies that are involved in transfers by children 
with disabilities.
    • Section 300.324(a)(4), regarding changes to an IEP after 
the annual IEP meeting for a school year, has been restructured into 
two paragraphs, and a new paragraph (a)(4)(ii) has been added to 
require the public agency to ensure that, if changes are made to a 
child's IEP without an IEP meeting, that the child's IEP Team is 
informed of the changes.
    • Section 300.324(b), regarding the review and revision of 
IEPs, has been changed to include a new paragraph (b)(2), to clarify 
that, in conducting a review of a child's IEP, the IEP Team must 
consider the same special factors it considered when developing the 
child's IEP.

Subpart E--Procedural Safeguards

    • Section 300.502, regarding independent educational 
evaluations, has been revised, as follows:
    (1) A new Sec.  300.502(b)(5) has been added to make clear that a 
parent is entitled to only one independent educational evaluation at 
public expense each time the public agency conducts an evaluation with 
which the parent disagrees.
    (2) Section 300.502(c) has been changed to clarify that if a parent 
obtains an independent evaluation at public expense or shares with the 
public agency an evaluation obtained at private expense, the public 
agency must consider the evaluation, if it meets agency criteria, in 
any decision made with respect to the provision of FAPE to the child.
    • Section 300.504 (Procedural safeguards notice) has been 
revised, as follows:
    (1) Paragraph (a)(2) of Sec.  300.504 has been changed to add that 
a copy of the procedural safeguards notice must be given upon receipt 
of the first due process complaint under Sec.  300.507 in a school 
year, as well as upon receipt of the first State complaint under Sec.  
300.151 through 300.153.
    (2) A new Sec.  300.504(a)(3) has been added to provide that the 
notice must be given to the parents of a child with a disability in 
accordance with the discipline procedures in Sec.  300.530(h).

[[Page 46545]]

    • Section 300.506(b), regarding the requirements for 
mediation, has been revised by (1) removing the provision about the 
``confidentiality pledge,'' in proposed paragraph (b)(9), because it is 
no longer required under the Act, and (2) changing paragraph (b)(8), 
regarding the prohibition against using discussions that occur in the 
mediation process, to clarify that ``civil proceedings'' includes any 
Federal court or State court of a State receiving assistance under this 
part.
    • Section 300.509, regarding model forms to assist parents 
and public agencies in filing due process complaints and parents and 
other parties in filing State complaints, has been revised to add, with 
respect to due process complaints, ``public agencies,'' and with 
respect to State complaints, ``other parties,'' as well as parents, and 
to clarify that (1) while each SEA must develop model forms, the SEA or 
LEA may not require the use of the forms, and (2) parents, public 
agencies, and other parties may either use the appropriate model form, 
or another form or other document, so long as the form or document 
meets, as appropriate, the requirements for filing a due process 
complaint or a State complaint.
    • Section 300.510 (Resolution process) has been revised, as 
follows:
    (1) Section 300.510(b)(1), regarding the resolution period, has 
been changed to state that a due process hearing ``may occur'' (in lieu 
of ``must occur'') by the end of the resolution period, if the parties 
have not resolved the dispute that formed the basis for the due process 
complaint.
    (2) A new Sec.  300.510(b)(3) has been added to provide that, 
except where the parties have jointly agreed to waive the resolution 
process or to use mediation (notwithstanding Sec.  300.510(b)(1) and 
(2)), the failure of a parent filing a due process complaint to 
participate in the resolution meeting will delay the timelines for the 
resolution process and due process hearing until the meeting is held.
    (3) A new Sec.  300.510(b)(4) has been added to provide that if an 
LEA is unable to obtain the participation of the parent in the 
resolution meeting after reasonable efforts have been made, and 
documented using the procedures in Sec.  300.322(d), the LEA may, at 
the conclusion of the 30-day resolution period, request that a hearing 
officer dismiss the parent's due process complaint.
    (4) A new paragraph (b)(5) of Sec.  300.510 has been added to 
provide that, if the LEA fails to hold the resolution meeting within 15 
days of receiving notice of a parent's due process complaint or fails 
to participate in the resolution meeting, the parent may seek the 
intervention of a hearing officer to begin the due process hearing 
timelines.
    (5) A new Sec.  300.510(c) (Adjustments to the 30-day resolution 
period) has been added that specifies exceptions to the 30-day 
resolution period (e.g., (A) both parties agree in writing to waive the 
resolution meeting; (B) after either the mediation or resolution 
meeting starts but before the end of the 30-day period, the parties 
agree in writing that no agreement is possible; or (C) if both parties 
agree in writing to continue the mediation at the end of the 30-day 
resolution period, but later, the parent or public agency withdraws 
from the mediation process). Subsequent paragraphs have been renumbered 
accordingly.
    (6) Paragraph (d)(2) of Sec.  300.510 (proposed paragraph(c)(2)), 
regarding the enforceability of a written settlement agreement in any 
State court of competent jurisdiction or in a district court of the 
United States, has been expanded to add the SEA, if the State has other 
mechanisms or procedures that permit parties to seek enforcement of 
resolution agreements, pursuant to a new Sec.  300.537.
    • Section 300.513(a) (Decision of hearing officer) has been 
revised by (1) changing the paragraph title to read ``Decision of 
hearing officer on the provision of FAPE,'' and (2) clarifying that a 
hearing officer's determination of whether a child received FAPE must 
be based on substantive grounds.
    • Section 300.515(a), regarding timelines and convenience of 
hearings and reviews, has been revised to include a specific reference 
to the adjusted time periods described in Sec.  300.510(c).
    • Section 300.516(b), regarding the 90-day time limitation 
from the date of the decision of the hearing to file a civil action, 
has been revised to provide that the 90-day period begins from the date 
of the decision of the hearing officer or the decision of the State 
review official.
    • Section 300.518 (Child's status during proceedings) has 
been revised by adding a new paragraph (c), which provides that if a 
complaint involves an application for initial services under this part 
from a child who is transitioning from Part C of the Act to Part B and 
is no longer eligible for Part C services because the child has turned 
3, the public agency is not required to provide the Part C services 
that the child had been receiving. If the child is found eligible for 
special education and related services under Part B and the parent 
consents to the initial provision of special education and related 
services under Sec.  300.300(b), then the public agency must provide 
those special education and related services that are not in dispute 
between the parent and the public agency.
    • Section 300.520(b), regarding a special rule about the 
transfer of parental rights at the age of majority, has been revised to 
more clearly state that a State must establish procedures for 
appointing the parent of a child with a disability, or if the parent is 
not available, another appropriate individual, to represent the 
educational interests of the child throughout the child's eligibility 
under Part B of the Act if, under State law, a child who has reached 
the age of majority, but has not been determined to be incompetent, can 
be determined not to have the ability to provide informed consent with 
respect to the child's educational program.

Discipline Procedures

    • Section 300.530(d)(1)(i), regarding services, has been 
revised to be consistent with section 615(k)(1)(D)(i) of the Act, by 
adding a reference to the FAPE requirements in Sec.  300.101(a).
    • Section 300.530(d)(4), regarding the removal of a child 
with a disability from the child's current placement for 10 school days 
in the same school year, has been revised to remove the reference to 
school personnel, in consultation with at least one of the child's 
teachers, determining the location in which services will be provided.
    • Section 300.530(d)(5), regarding removals that constitute 
a change of placement under Sec.  300.536, has been revised to remove 
the reference to the IEP Team determining the location in which 
services will be provided.
    • A new Sec.  300.530(e)(3), has been added to provide that, 
if the LEA, the parent, and members of the child's IEP Team determine 
that the child's behavior was the direct result of the LEA's failure to 
implement the child's IEP, the LEA must take immediate steps to remedy 
those deficiencies.
    • Section 300.530(h), regarding notification, has been 
changed to specify that, on the date on which a decision is made to 
make a removal that constitutes a change in the placement of a child 
with a disability because of a violation of a code of student conduct, 
the LEA must notify the parents of that decision, and provide the 
parents the procedural safeguards notice described in Sec.  300.504.
    • Section 300.532 (Appeal) has been revised, as follows:
    (1) Paragraph (a) of Sec.  300.532, regarding the conditions in 
which the parent of a child with a disability or an LEA may request a 
hearing, has been

[[Page 46546]]

modified to clarify that the hearing is requested by filing a complaint 
pursuant to Sec. Sec.  300.507 and 300.508(a) and (b).
    (2) Section 300.532(b)(3) has been changed to more definitively 
provide that if the LEA believes that returning the child to his or her 
original placement is substantially likely to result in injury to the 
child or others.
    (3) Section 300.532(c)(3), regarding an expedited due process 
hearing, has been adjusted to provide that unless the parents and an 
LEA agree in writing to waive a resolution meeting, or agree to use the 
mediation process described in Sec.  300.506, the resolution meeting 
must occur within seven days of receiving notice of the due process 
complaint, and the hearing may proceed within 15 days of receipt of the 
due process complaint unless the matter has been resolved to 
satisfaction of both parties.
    (4) Proposed Sec.  300.532(c)(4), regarding the two-day timeframe 
for disclosing information to the opposing party prior to an expedited 
due process hearing, has been removed.
    • Section 500.536(a)(2)(ii) (proposed Sec.  300.536(b)(2)) 
has been revised to remove the requirement that a child's behavior must 
have been a manifestation of the child's disability before determining 
that a series of removals constitutes a change in placement under Sec.  
300.536. Paragraph (a)(2)(ii) has also been amended to reference the 
child's behavior in ``previous'' incidents that resulted in the series 
of removals.
    • A new Sec.  300.536(b) has been added to clarify that the 
public agency (subject to review through the due process and judicial 
proceedings) makes the determination, on a case-by-case basis, whether 
a pattern of removals constitutes a change in placement and that the 
determination is subject to review through due process and judicial 
determinations.
    • A new Sec.  300.537 (State enforcement mechanisms) has 
been added to clarify that notwithstanding Sec.  300.506(b)(7) and 
Sec.  300.510(c)(2), which provide for judicial enforcement of a 
written agreement reached as a result of a mediation or resolution 
meeting, nothing in this part would prevent the SEA from using other 
mechanisms to seek enforcement of that agreement, provided that use of 
those mechanisms is not mandatory and does not delay or deny a party 
the right to seek enforcement of the written agreement in a State court 
of competent jurisdiction or in a district court of the United States.

Subpart F--Monitoring, Enforcement, Confidentiality, and Program 
Information

Monitoring, Technical Assistance, and Enforcement

    • Section 300.600 (State monitoring and enforcement) has 
been revised, as follows:
    (1) Section 300.600(a) has been amended to require the State to 
enforce Part B of the Act in accordance with Sec.  300.604(a)(1) and 
(a)(3), (b)(2)(i) and (b)(2)(v), and (c)(2).
    (2) A new paragraph (d) has been added, which provides that the 
State must monitor the LEAs located in the State, using quantifiable 
indicators in each of the following priority areas, and such 
qualitative indicators as are needed to adequately measure performance 
in those areas, including: (A) Provision of FAPE in the least 
restrictive environment; (B) State exercise of general supervision, 
including child find, effective monitoring, the use of resolution 
meetings, and a system of transition services as defined in Sec.  
300.43 and in 20 U.S.C. 1437(a)(9); and (C) disproportionate 
representation of racial and ethnic groups in special education and 
related services, to the extent the representation is the result of 
inappropriate identification.
    • A new Sec.  300.601(b)(2), regarding State use of targets 
and reporting, has been added to specify that, if permitted by the 
Secretary, if a State collects data on an indicator through State 
monitoring or sampling, the State must collect data on the indicator at 
least once during the period of the State performance plan.
    • A new Sec.  300.608(b), regarding State enforcement, has 
been added to specify that States are not restricted from utilizing any 
other authority available to them to monitor and enforce the 
requirements of Part B of the Act.

Confidentiality of Information

    • Section 300.622 (Consent) has been restructured and 
revised to more accurately reflect the Department's policy regarding 
when parental consent is required for disclosures of personally 
identifiable information, as follows:
    (1) Paragraph (a) of Sec.  300.622 has been changed to provide that 
parental consent must be obtained before personally identifiable 
information is disclosed to parties other than officials of 
participating agencies, unless the information is contained in 
education records, and the disclosure is authorized without parental 
consent under the regulations for the Family Educational Rights and 
Privacy Act (FERPA, 34 CFR part 99).
    (2) A new Sec.  300.622(b)(1) has been added to clarify that 
parental consent is not required before personally identifiable 
information is released to officials of participating agencies for 
purposes of meeting a requirement of Part B of the Act or these 
regulations.
    (3) A new Sec.  300.622(b)(2) has been added to provide that 
parental consent must be obtained before personally identifiable 
information is released to officials of participating agencies that 
provide or pay for transition services.
    (4) A new paragraph (b)(3) has been added to require that, with 
respect to parentally-placed private school children with disabilities, 
parental consent must be obtained before any personally identifiable 
information is released between officials in the LEA where the private 
school is located and the LEA of the parent's residence.
    (5) Proposed Sec.  300.622(c), regarding the requirement to provide 
policies and procedures for use in the event that a parent refuses to 
consent, has been removed because it is covered elsewhere in these 
regulations.

Subpart G--Authorization, Allotment, Use of Funds, and Authorization of 
Appropriations

Allotments, Grants, and Use of Funds

    • Section 300.701(a)(1)(ii)(A), regarding the applicable 
requirements of Part B of the Act that apply to freely associated 
States, has been revised by removing the five listed requirements 
because those requirements did not include all requirements that apply 
to freely associated States. This change clarifies that freely 
associated States must meet the applicable requirements that apply to 
States under Part B of the Act.
    • Section 300.704(c)(3)(i), regarding the requirement to 
develop, annually review, and revise (if necessary) a State plan for 
the high cost fund, has been revised to add a new paragraph (F) that 
requires that if the State elects to reserve funds for supporting 
innovative and effective ways of cost sharing, it must describe in its 
State plan how these funds will be used.
    • Section 300.706 (Allocation for State in which by-pass is 
implemented for parentally-placed private school children with 
disabilities) has been removed because it is no longer applicable. The 
section has been redesignated as ``Reserved.''

Secretary of the Interior

    • Section 300.707 (Use of amounts by Secretary of the 
Interior) has been changed, as follows:

[[Page 46547]]

    (1) The definition of Tribal governing body of a school has been 
replaced with the definition of tribal governing body from 25 U.S.C. 
2021(19).
    (2) Section 300.707(c), regarding an additional requirement under 
``Use of amounts by Secretary of the Interior,'' has been revised to 
clarify that, with respect to all other children aged 3 to 21, 
inclusive, on reservations, the SEA of the State in which the 
reservation is located must ensure that all the requirements of Part B 
of the Act are met.
    • Section 300.713 (Plan for coordination of services) has 
been revised to require (1) in Sec.  300.713(a), the Secretary of the 
Interior to develop and implement a plan for the coordination of 
services for all Indian children with disabilities residing on 
reservations served by elementary schools and secondary schools for 
Indian children operated or funded by the Secretary of the Interior, 
and (2) in Sec.  300.713(b), the plan to provide for the coordination 
of services benefiting these children from whatever source covered by 
the plan, including SEAs, and State, local, and tribal juvenile and 
adult correctional facilities.

Analysis of Comments and Changes

Introduction

    In response to the invitation in the NPRM, more than 5,500 parties 
submitted comments on the proposed regulations. An analysis of the 
comments and of the changes in the regulations since publication of the 
NPRM immediately follows this introduction.
    The perspectives of parents, individuals with disabilities, 
teachers, related services providers, State and local officials, 
members of Congress, and others were very important in helping us to 
identify where changes to the proposed regulations were necessary, and 
in formulating many of the changes. In light of the comments received, 
a number of significant changes are reflected in these final 
regulations.
    We discuss substantive issues under the subpart and section to 
which they pertain. References to subparts in this analysis are to 
those contained in the final regulations. The analysis generally does 
not address--
    (a) Minor changes, including technical changes made to the language 
published in the NPRM;
    (b) Suggested changes the Secretary is not legally authorized to 
make under applicable statutory authority; and
    (c) Comments that express concerns of a general nature about the 
Department or other matters that are not directly relevant to these 
regulations, such as requests for information about innovative 
instructional methods or matters that are within the purview of State 
and local decision-makers.

Subpart A--General

Definitions Used in This Part

Applicability of This Part to State and Local Agencies (Sec.  300.2)
    Comment: None.
    Discussion: Section Sec.  300.2(c)(2) contains an incorrect 
reference to Sec.  300.148(b). The correct reference should be to Sec.  
300.148.
    Changes: We have removed the reference to Sec.  300.148(b) and 
replaced it with a reference to Sec.  300.148.
Assistive Technology Device (Sec.  300.5)
    Comment: Some commenters opposed the exclusion of surgically 
implanted medical devices in the definition of assistive technology 
device. Another commenter recommended limiting the definition of 
assistive technology device to a device that is needed to achieve 
educational outcomes, rather than requiring local educational agencies 
(LEAs) to pay for any assistive technology device that increases, 
maintains, or improves any functional need of the child.
    Discussion: The definition of assistive technology device in Sec.  
300.5 incorporates the definition in section 602(1)(B) of the Act. We 
do not believe the definition should be changed in the manner suggested 
by the commenters because the changes are inconsistent with the 
statutory definition. The definition in the Act specifically refers to 
any item, piece of equipment, or product system that is used to 
increase, maintain, or improve the functional capabilities of the child 
and specifically excludes a medical device that is surgically implanted 
or the replacement of such device. Accordingly, we continue to believe 
it is appropriate to exclude surgically implanted medical devices from 
this definition. In response to the second comment, Sec.  300.105(a) 
requires each public agency to ensure that assistive technology devices 
(or assistive technology services, or both) are made available to a 
child with a disability if required as part of the child's special 
education, related services, or supplementary aids and services. This 
provision ties the definition to a child's educational needs, which 
public agencies must meet in order to ensure that a child with a 
disability receives a free appropriate public education (FAPE).
    Changes: None.
    Comment: One commenter requested that the regulations clarify that 
an assistive technology device is not synonymous with an augmentative 
communication device. A few commenters recommended including recordings 
for the blind and dyslexic playback devices in the definition of 
assistive technology devices. Some commenters recommended including 
language in the regulations clarifying that medical devices used for 
breathing, nutrition, and other bodily functions are assistive 
technology devices.
    Discussion: The definition of assistive technology device does not 
list specific devices, nor would it be practical or possible to include 
an exhaustive list of assistive technology devices. Whether an 
augmentative communication device, playback devices, or other devices 
could be considered an assistive technology device for a child depends 
on whether the device is used to increase, maintain, or improve the 
functional capabilities of a child with a disability, and whether the 
child's individualized education program (IEP) Team determines that the 
child needs the device in order to receive a free appropriate public 
education (FAPE). However, medical devices that are surgically 
implanted, including those used for breathing, nutrition, and other 
bodily functions, are excluded from the definition of an assistive 
technology device in section 602(1)(B) of the Act. The exclusion 
applicable to a medical device that is surgically implanted includes 
both the implanted component of the device, as well as its external 
components.
    Changes: None.
    Comment: A few commenters asked whether the definition of assistive 
technology device includes an internet-based instructional program, and 
what the relationship is between internet-based instructional programs 
and specially-designed instruction.
    Discussion: An instructional program is not a device, and, 
therefore, would not meet the definition of an assistive technology 
device. Whether an internet-based instructional program is appropriate 
for a particular child is determined by the child's IEP Team, which 
would determine whether the program is needed in order for the child to 
receive FAPE.
    Changes: None.
    Comment: A few commenters recommended including the proper 
functioning of hearing aids in the definition of assistive technology 
device.
    Discussion: We believe that the provision requiring public agencies 
to ensure that hearing aids worn in school are functioning properly is 
more appropriately included in new Sec.  300.113

[[Page 46548]]

(proposed Sec.  300.105(b)). As noted in the Analysis of Comments and 
Changes section discussing subpart B, we have added a new Sec.  300.113 
to address the routine checking (i.e., making sure they are turned on 
and working) of hearing aids and external components of surgically 
implanted devices.
    Changes: None.
Assistive Technology Service (Sec.  300.6)
    Comment: One commenter requested clarifying ``any service'' in the 
definition of assistive technology service.
    Discussion: We believe the definition is clear that an assistive 
technology service is any service that helps a child with a disability 
select an appropriate assistive technology device, obtain the device, 
or train the child to use the device.
    Changes: None.
    Comment: One commenter stated that services necessary to support 
the use of playback devices for recordings for the blind and dyslexic 
should be added to the definition of assistive technology service.
    Discussion: A service to support the use of recordings for the 
blind and dyslexic on playback devices could be considered an assistive 
technology service if it assists a child with a disability in the 
selection, acquisition, or use of the device. If so, and if the child's 
IEP Team determines it is needed for the child to receive FAPE, the 
service would be provided. The definition of assistive technology 
service does not list specific services. We do not believe it is 
practical or possible to include an exhaustive list of assistive 
technology services, and therefore, decline to add the specific 
assistive technology service recommended by the commenter to the 
definition.
    Changes: None.
    Comment: One commenter recommended evaluating all children with 
speech or hearing disabilities to determine if they can benefit from 
the Federal Communications Commission's specialized telephone assistive 
services for people with disabilities.
    Discussion: Evaluations under section 614 of the Act are for the 
purpose of determining whether a child has a disability and because of 
that disability needs special education and related services, and for 
determining the child's special education and related services needs. 
It would be inappropriate under the Act to require evaluations for 
other purposes or to require an evaluation for telephone assistive 
services for all children with speech and hearing disabilities. 
However, if it was determined that learning to use telephone assisted 
services, was an important skill for a particular child (e.g., as part 
of a transition plan), it would be appropriate to conduct an evaluation 
of that particular child to determine if the child needed specialized 
instruction in order to use such services.
    Changes: None.
    Comment: One commenter requested that the definition of assistive 
technology service specifically exclude a medical device that is 
surgically implanted, the optimization of device functioning, 
maintenance of the device, and the replacement of the device.
    Discussion: The definition of related services in Sec.  300.34(b) 
specifically excludes a medical device that is surgically implanted, 
the optimization of device functioning, maintenance of the device, or 
the replacement of that device. In addition, the definition of 
assistive technology device in Sec.  300.5 specifically excludes a 
medical device that is surgically implanted and the replacement of that 
device. We believe it is unnecessary to repeat these exclusions in the 
definition of assistive technology service.
    Changes: None.
Charter School (Sec.  300.7)
    Comment: Several commenters suggested that we include in the 
regulations the definitions of terms that are defined in other 
statutes. For example, one commenter requested including the definition 
of charter school in the regulations.
    Discussion: Including the actual definitions of terms that are 
defined in statutes other than the Act is problematic because these 
definitions may change over time (i.e., through changes to statutes 
that establish the definitions). In order for these regulations to 
retain their accuracy over time, the U.S. Department of Education 
(Department) would need to amend the regulations each time an included 
definition that is defined in another statute changes. The Department 
believes that this could result in significant confusion.
    However, we are including the current definition of charter school 
in section 5210(1) of the ESEA here for reference.
    The term charter school means a public school that:
    1. In accordance with a specific State statute authorizing the 
granting of charters to schools, is exempt from significant State or 
local rules that inhibit the flexible operation and management of 
public schools, but not from any rules relating to the other 
requirements of this paragraph [the paragraph that sets forth the 
Federal definition];
    2. Is created by a developer as a public school, or is adapted by a 
developer from an existing public school, and is operated under public 
supervision and direction;
    3. Operates in pursuit of a specific set of educational objectives 
determined by the school's developer and agreed to by the authorized 
public chartering agency;
    4. Provides a program of elementary or secondary education, or 
both;
    5. Is nonsectarian in its programs, admissions policies, employment 
practices, and all other operations, and is not affiliated with a 
sectarian school or religious institution;
    6. Does not charge tuition;
    7. Complies with the Age Discrimination Act of 1975, Title VI of 
the Civil Rights Act of 1964, Title IX of the Education Amendments of 
1972, Section 504 of the Rehabilitation Act of 1973, Title II of the 
Americans with Disabilities Act of 1990, and Part B of the Individuals 
with Disabilities Education Act;
    8. Is a school to which parents choose to send their children, and 
that admits students on the basis of a lottery, if more students apply 
for admission than can be accommodated;
    9. Agrees to comply with the same Federal and State audit 
requirements as do other elementary schools and secondary schools in 
the State, unless such requirements are specifically waived for the 
purpose of this program [the Public Charter School Program];
    10. Meets all applicable Federal, State, and local health and 
safety requirements;
    11. Operates in accordance with State law; and
    12. Has a written performance contract with the authorized public 
chartering agency in the State that includes a description of how 
student performance will be measured in charter schools pursuant to 
State assessments that are required of other schools and pursuant to 
any other assessments mutually agreeable to the authorized public 
chartering agency and the charter school.
    Changes: None.
Child With a Disability (Sec.  300.8)
General (Sec.  300.8(a))
    Comment: Several commenters stated that many children with fetal 
alcohol syndrome (FAS) do not receive special education and related 
services and recommended adding a disability category for children with 
FAS to help solve this problem.
    Discussion: We believe that the existing disability categories in 
section

[[Page 46549]]

602(3) of the Act and in these regulations are sufficient to include 
children with FAS who need special education and related services. 
Special education and related services are based on the identified 
needs of the child and not on the disability category in which the 
child is classified. We, therefore, do not believe that adding a 
separate disability category for children with FAS is necessary to 
ensure that children with FAS receive the special education and related 
services designed to meet their unique needs resulting from FAS.
    Changes: None.
    Comment: Some commenters suggested that the definition of child 
with a disability be changed to ``student with a disability'' and that 
the word ``student,'' rather than ``child,'' be used throughout the 
regulations because students over the age of 18 are not children.
    Discussion: Section 602(3) of the Act defines child with a 
disability, not student with a disability. Therefore, we do not believe 
it is appropriate to change the definition as requested by the 
commenters. The words ``child'' and ``student'' are used throughout the 
Act and we generally have used the word ``child'' or ``children,'' 
except when referring to services and activities for older students 
(e.g., transition services, postsecondary goals).
    Changes: None.
    Comment: Some commenters supported Sec.  300.8(a)(2), which states 
that if a child needs only a related service and not special education, 
the child is not a child with a disability under the Act. Another 
commenter recommended a single standard for the provision of a related 
service as special education, rather than allowing States to determine 
whether a related service is special education.
    Discussion: Section 300.8(a)(2)(i) states that if a child has one 
of the disabilities listed in Sec.  300.8(a)(1), but only needs a 
related service, the child is not a child with a disability under the 
Act. However, Sec.  300.8(a)(2)(ii) provides that, if a State considers 
a particular service that could be encompassed by the definition of 
related services also to be special education, then the child would be 
determined to be a child with a disability under the Act. We believe it 
is important that States have the flexibility to determine whether, 
consistent with the definition of the term special education in section 
602(29) of the Act and new Sec.  300.39 (proposed Sec.  300.38), such a 
service should be regarded as special education and to identify a child 
who needs that service as a child with a disability. States are in the 
best position to determine whether a service that is included in the 
definition of related services should also be considered special 
education in that State.
    Changes: None.
    Comment: None.
    Discussion: Section Sec.  300.8(a)(2)(ii) contains an incorrect 
reference to Sec.  300.38(a)(2). The correct reference should be to 
Sec.  300.39(a)(2).
    Changes: We have removed the reference to Sec.  300.38(a)(2) and 
replaced it with a reference to Sec.  300.39(a)(2).
Children Aged Three Through Nine Experiencing Developmental Delays 
(Sec.  300.8(b))
    Comment: Several commenters expressed support for allowing LEAs to 
select a subset of the age range from three through nine for their 
definition of developmental delay. A few commenters recommended 
clarifying that States, not the LEAs, define the age range of children 
eligible under this category of developmental delay.
    Discussion: Section 300.8(b) states that the use of the 
developmental delay category for a child with a disability aged three 
through nine, or any subset of that age range, must be made in 
accordance with Sec.  300.111(b). Section 300.111(b) gives States the 
option of adopting a definition of developmental delay, but does not 
require an LEA to adopt and use the term. However, if an LEA uses the 
category of developmental delay, the LEA must conform to both the 
State's definition of the term and the age range that has been adopted 
by the State. If a State does not adopt the category of developmental 
delay, an LEA may not use that category as the basis for establishing a 
child's eligibility for special education and related services.
    Based on the comments, it appears that Sec.  300.8(b) has been 
misinterpreted as stating that LEAs are allowed to establish the age 
range for defining developmental delay independent of the State. We 
believe it is important to avoid such confusion and, therefore, will 
modify Sec.  300.8(b) to clarify the provision.
    Changes: For clarity, we have removed the phrase, ``at the 
discretion of the State and LEA in accordance with Sec.  300.111(b)'' 
and replaced it with ``subject to the conditions in Sec.  300.111(b).''
Deafness (Sec.  300.8(c)(3))
    Comment: One commenter stated that children who are hard of hearing 
are often denied special education and related services because the 
definition of deafness includes the phrase, ``adversely affects a 
child's educational performance,'' which school district personnel 
interpret to mean that the child must be failing in school to receive 
special education and related services.
    Discussion: As noted in the Analysis of Comments and Changes 
section discussing subpart B, we have clarified in Sec.  300.101(c) 
that a child does not have to fail or be retained in a course or grade 
in order to be considered for special education and related services. 
However, in order to be a child with a disability under the Act, a 
child must have one or more of the impairments identified in section 
602(3) of the Act and need special education and related services 
because of that impairment. Given the change in Sec.  300.101(c), we do 
not believe clarification in Sec.  300.8(c)(3) is necessary.
    Changes: None.
Emotional Disturbance (Sec.  300.8(c)(4))
    Comment: Numerous commenters requested defining or eliminating the 
term ``socially maladjusted'' in the definition of emotional 
disturbance stating that there is no accepted definition of the term, 
and no valid or reliable instruments or methods to identify children 
who are, or are not, ``socially maladjusted.'' Some commenters stated 
that children who need special education and related services have been 
denied these services, or have been inappropriately identified under 
other disability categories and received inappropriate services because 
the definition of emotional disturbance excludes children who are 
socially maladjusted. One commenter stated that using the term 
``socially maladjusted'' contributes to the negative image of children 
with mental illness and does a disservice to children with mental 
illness and those who seek to understand mental illness.
    One commenter stated that emotional disturbance is one of the most 
misused and misunderstood disability categories and is often improperly 
used to protect dangerous and aggressive children who violate the 
rights of others. The commenter stated that the definition of emotional 
disturbance is vague and offers few objective criteria to differentiate 
an emotional disability from ordinary development, and requires the 
exclusion of conditions in which the child has the ability to control 
his or her behavior, but chooses to violate social norms.
    One commenter recommended adding autism to the list of factors in 
Sec.  300.8(c)(4)(i)(A) that must be ruled out before making an 
eligibility determination based on emotional disturbance. The commenter 
stated that

[[Page 46550]]

many children with autism are inappropriately placed in alternative 
educational programs designed for children with serious emotional and 
behavioral problems.
    Discussion: Historically, it has been very difficult for the field 
to come to consensus on the definition of emotional disturbance, which 
has remained unchanged since 1977. On February 10, 1993, the Department 
published a ``Notice of Inquiry'' in the Federal Register (58 FR 7938) 
soliciting comments on the existing definition of serious emotional 
disturbance. The comments received in response to the notice of inquiry 
expressed a wide range of opinions and no consensus on the definition 
was reached. Given the lack of consensus and the fact that Congress did 
not make any changes that required changing the definition, the 
Department recommended that the definition of emotional disturbance 
remain unchanged. We reviewed the Act and the comments received in 
response to the NPRM and have come to the same conclusion. Therefore, 
we decline to make any changes to the definition of emotional 
disturbance.
    Changes: None.
    Comment: One commenter suggested that the regulations include a 
process to identify children who are at risk for having an emotional 
disturbance.
    Discussion: We decline to include a process to identify children 
who are at risk for having an emotional disturbance. A child who is at 
risk for having any disability under the Act is not considered a child 
with a disability under Sec.  300.8 and section 602(3) of the Act and, 
therefore, is not eligible for services under the Act.
    Changes: None.
Mental Retardation (Sec.  300.8(c)(6))
    Comment: One commenter suggested using the term ``intellectual 
disability'' in place of ``mental retardation'' because ``intellectual 
disability'' is a more acceptable term. The commenter also stated that 
the definition of mental retardation is outdated, and should, instead, 
address a child's functional limitations in specific life areas.
    Discussion: Section 602(3)(A) of the Act refers to a ``child with 
mental retardation,'' not a ``child with intellectual disabilities,'' 
and we do not see a compelling reason to change the term. However, 
States are free to use a different term to refer to a child with mental 
retardation, as long as all children who would be eligible for special 
education and related services under the Federal definition of mental 
retardation receive FAPE.
    We do not believe the definition of mental retardation needs to be 
changed because it is defined broadly enough in Sec.  300.8(c)(6) to 
include a child's functional limitations in specific life areas, as 
requested by the commenter. There is nothing in the Act or these 
regulations that would prevent a State from including ``functional 
limitations in specific life areas'' in a State's definition of mental 
retardation, as long as the State's definition is consistent with these 
regulations.
    Changes: None.
Multiple Disabilities (Sec.  300.8(c)(7))
    Comment: One commenter asked why the category of multiple 
disabilities is included in the regulations when it is not in the Act.
    Discussion: The definition of multiple disabilities has been in the 
regulations since 1977 and does not expand eligibility beyond what is 
provided for in the Act. The definition helps ensure that children with 
more than one disability are not counted more than once for the annual 
report of children served because States do not have to decide among 
two or more disability categories in which to count a child with 
multiple disabilities.
    Changes: None.
Orthopedic Impairment (Sec.  300.8(c)(8))
    Comment: One commenter requested that the examples of congenital 
anomalies in the definition of orthopedic impairment in current Sec.  
300.7(c)(8) be retained.
    Discussion: The examples of congenital anomalies in current Sec.  
300.7(c)(8) are outdated and unnecessary to understand the meaning of 
orthopedic impairment. We, therefore, decline to include the examples 
in Sec.  300.8(c)(8).
    Changes: None.
Other Health Impairment (Sec.  300.8(c)(9))
    Comment: We received a significant number of comments requesting 
that we include other examples of specific acute or chronic health 
conditions in the definition of other health impairment. A few 
commenters recommended including children with dysphagia because these 
children have a swallowing and feeding disorder that affects a child's 
vitality and alertness due to limitations in nutritional intake. Other 
commenters recommended including FAS, bipolar disorders, and organic 
neurological disorders. Numerous commenters requested including 
Tourette syndrome disorders in the definition of other health 
impairment because children with Tourette syndrome are frequently 
misclassified as emotionally disturbed. A number of commenters stated 
that Tourette syndrome is a neurological disorder and not an emotional 
disorder, yet children with Tourette syndrome continue to be viewed as 
having a behavioral or conduct disorder and, therefore, do not receive 
appropriate special education and related services.
    Discussion: The list of acute or chronic health conditions in the 
definition of other health impairment is not exhaustive, but rather 
provides examples of problems that children have that could make them 
eligible for special education and related services under the category 
of other health impairment. We decline to include dysphagia, FAS, 
bipolar disorders, and other organic neurological disorders in the 
definition of other health impairment because these conditions are 
commonly understood to be health impairments. However, we do believe 
that Tourette syndrome is commonly misunderstood to be a behavioral or 
emotional condition, rather than a neurological condition. Therefore, 
including Tourette syndrome in the definition of other health 
impairment may help correct the misperception of Tourette syndrome as a 
behavioral or conduct disorder and prevent the misdiagnosis of their 
needs.
    Changes: We have added Tourette syndrome as an example of an acute 
or chronic health problem in Sec.  300.8(c)(9)(i).
    Comment: A few commenters expressed concern about determining a 
child's eligibility for special education services under the category 
of other health impairment based on conditions that are not medically 
determined health problems, such as ``central auditory processing 
disorders'' or ``sensory integration disorders.'' One commenter 
recommended that the regulations clarify that ``chronic or acute health 
problems'' refer to health problems that are universally recognized by 
the medical profession.
    Discussion: We cannot make the change requested by the commenters. 
The determination of whether a child is eligible to receive special 
education and related services is made by a team of qualified 
professionals and the parent of the child, consistent with Sec.  
300.306(a)(1) and section 614(b)(4) of the Act. The team of qualified 
professionals and the parent of the child must base their decision on 
careful consideration of information from a variety of sources, 
consistent with Sec.  300.306(c). There is nothing in the Act that 
requires the team of qualified professionals and the parent to consider 
only health problems that are

[[Page 46551]]

universally recognized by the medical profession, as requested by the 
commenters. Likewise, there is nothing in the Act that would prevent a 
State from requiring a medical evaluation for eligibility under other 
health impairment, provided the medical evaluation is conducted at no 
cost to the parent.
    Changes: None.
    Comment: One commenter stated that the category of other health 
impairment is one of the most rapidly expanding eligibility categories 
because the definition is vague, confusing, and redundant. The 
commenter noted that the definition of other health impairment includes 
terms such as ``alertness'' and ``vitality,'' which are difficult to 
measure objectively.
    Discussion: We believe that the definition of other health 
impairment is generally understood and that the group of qualified 
professionals and the parent responsible for determining whether a 
child is a child with a disability are able to use the criteria in the 
definition and appropriately identify children who need special 
education and related services. Therefore, we decline to change the 
definition.
    Changes: None.
Specific Learning Disability (Sec.  300.8(c)(10))
    Comment: One commenter recommended changing the definition of 
specific learning disability to refer to a child's response to 
scientific, research-based intervention as part of the procedures for 
evaluating children with disabilities, consistent with Sec.  
300.307(a). A few commenters recommended aligning the definition of 
specific learning disability with the requirements for determining 
eligibility in Sec.  300.309.
    One commenter recommended using the word ``disability,'' instead of 
``disorder,'' and referring to specific learning disabilities as a 
``disability in one or more of the basic psychological processes.'' A 
few commenters stated that the terms ``developmental aphasia'' and 
``minimal brain dysfunction'' are antiquated and should be removed from 
the definition. A few commenters questioned using ``imperfect ability'' 
in the definition because it implies that a child with minor problems 
in listening, thinking, speaking, reading, writing, spelling, or 
calculating math could be determined to have a specific learning 
disability.
    Discussion: The definition of specific learning disability is 
consistent with the procedures for evaluating and determining the 
eligibility of children suspected of having a specific learning 
disability in Sec. Sec.  300.307 through 300.311. We do not believe it 
is necessary to repeat these procedures in the definition of specific 
learning disability.
    Section 602(30) of the Act refers to a ``disorder'' in one or more 
of the basic psychological processes and not to a ``disability'' in one 
or more of the basic psychological processes. We believe it would be 
inconsistent with the Act to change ``disorder'' to ``disability,'' as 
recommended by one commenter. We do not believe that the terms 
``developmental aphasia'' and ``minimal brain dysfunction'' should be 
removed from the definition. Although the terms may not be as commonly 
used as ``specific learning disability,'' the terms continue to be used 
and we see no harm in retaining them in the definition. We do not agree 
that the phrase ``imperfect ability'' implies that a child has a minor 
problem and, therefore, decline to change this phrase in the definition 
of specific learning disability.
    Changes: None.
    Comment: We received several requests to revise the definition of 
specific learning disability to include specific disabilities or 
disorders that are often associated with specific learning 
disabilities, including Aspergers syndrome, FAS, auditory processing 
disorders, and nonverbal learning disabilities.
    Discussion: Children with many types of disabilities or disorders 
may also have a specific learning disability. It is not practical or 
feasible to include all the different disabilities that are often 
associated with a specific learning disability. Therefore, we decline 
to add these specific disorders or disabilities to the definition of 
specific learning disability.
    Changes: None.
    Comment: A few commenters suggested clarifying the word 
``cultural'' in Sec.  300.8(c)(10)(ii) to clarify that cultural 
disadvantage or language cannot be the basis for determining that a 
child has a disability.
    Discussion: We believe the term ``cultural'' is generally 
understood and do not see a need for further clarification. We also do 
not believe that it is necessary to clarify that language cannot be the 
basis for determining whether a child has a specific learning 
disability. Section 300.306(b)(1)(iii), consistent with section 
614(b)(5)(C) of the Act, clearly states that limited English 
proficiency cannot be the basis for determining a child to be a child 
with a disability under any of the disability categories in Sec.  
300.8.
    Changes: None.
Consent (Sec.  300.9)
    Comment: Numerous commenters noted that the regulations include the 
terms ``consent,'' ``informed consent,'' ``agree,'' and ``agree in 
writing'' and asked whether all the terms have the same meaning.
    Discussion: These terms are used throughout the regulations and are 
consistent with their use in the Act. The definition of consent 
requires a parent to be fully informed of all information relevant to 
the activity for which consent is sought. The definition also requires 
a parent to agree in writing to an activity for which consent is 
sought. Therefore, whenever consent is used in these regulations, it 
means that the consent is both informed and in writing.
    The meaning of the terms ``agree'' or ``agreement'' is not the same 
as consent. ``Agree'' or ``agreement'' refers to an understanding 
between the parent and the public agency about a particular question or 
issue, which may be in writing, depending on the context.
    Changes: None.
    Comment: A few commenters recommended adding a requirement to the 
definition of consent that a parent be fully informed of the reasons 
why a public agency selected one activity over another.
    Discussion: We do not believe it is necessary to include the 
additional requirement recommended by the commenter. The definition of 
consent already requires that the parent be fully informed of all the 
information relevant to the activity for which consent is sought.
    Changes: None.
    Comment: A few commenters requested that the Department address 
situations in which a child is receiving special education services and 
the child's parent wants to discontinue services because they believe 
the child no longer needs special education services. A few commenters 
stated that public agencies should not be allowed to use the procedural 
safeguards to continue to provide special education and related 
services to a child whose parent withdraws consent for the continued 
provision of special education and related services.
    Discussion: The Department intends to propose regulations to permit 
parents who previously consented to the initiation of special education 
services, to withdraw their consent for their child to receive, or 
continue to receive, special education services. Because this is a 
change from the Department's longstanding policies and was not proposed 
in the NPRM, we will provide the public the opportunity to comment

[[Page 46552]]

on this proposed change in a separate notice of proposed rulemaking.
    Changes: None.
Core Academic Subjects (Sec.  300.10)
    Comment: A few commenters suggested adding the definition of core 
academic subjects from the ESEA to the regulations and including any 
additional subjects that are considered core academic subjects for 
children in the State in which the child resides.
    Discussion: The definition of core academic subjects in Sec.  
300.10, consistent with section 602(4) of the Act, is the same as the 
definition in section 9101 of the ESEA. We believe it is unnecessary to 
change the definition to include additional subjects that particular 
States consider to be core academic subjects. However, there is nothing 
in the Act or these regulations that would prevent a State from 
including additional subjects in its definition of ``core academic 
subjects.''
    Changes: None.
    Comment: A few commenters requested clarifying the definition of 
core academic subjects for a secondary school student when the student 
is functioning significantly below the secondary level.
    Discussion: The definition of core academic subjects does not vary 
for secondary students who are functioning significantly below grade 
level. The Act focuses on high academic standards and clear performance 
goals for children with disabilities that are consistent with the 
standards and expectations for all children. As required in Sec.  
300.320(a), each child's IEP must include annual goals to enable the 
child to be involved in and make progress in the general education 
curriculum, and a statement of the special education and related 
services and supplementary aids and services to enable the child to be 
involved and make progress in the general education curriculum. It 
would, therefore, be inconsistent and contrary to the purposes of the 
Act for the definition of core academic subjects to be different for 
students who are functioning below grade level.
    Changes: None.
    Comment: One commenter asked that the core content area of 
``science'' apply to social sciences, as well as natural sciences.
    Discussion: We cannot change the regulations in the manner 
recommended by the commenter because the ESEA does not identify 
``social sciences'' as a core academic subject. Neither does it 
identify ``social studies'' as a core academic subject. Instead, it 
identifies specific core academic areas: History, geography, economics, 
and civics and government. The Department's nonregulatory guidance on 
``Highly Qualified Teachers, Improving Teacher Quality State Grants'' 
(August 3, 2005) explains that if a State issues a composite social 
studies license, the State must determine in which of the four areas 
(history, geography, economics, and civics and government), if any, a 
teacher is qualified. (see question A-20 in the Department's 
nonregulatory guidance available at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.ed.gov/programs/teacherqual/legislation.html#guidance
).

    Changes: None.
Day; Business Day; School Day (Sec.  300.11)
    Comment: A few commenters stated that a partial day should be 
considered a school day only if there is a safety reason for a 
shortened day, such as a two hour delay due to snow, and that regularly 
scheduled half days should not be considered a school day for funding 
purposes. One commenter stated that many schools count the time on the 
bus, recess, lunch period, and passing periods as part of a school day 
for children with disabilities, and recommended that the regulations 
clarify that non-instructional time does not count against a child's 
instructional day unless such times are counted against the 
instructional day of all children. One commenter recommended the 
definition of school day include days on which extended school year 
(ESY) services are provided to children with disabilities.
    Discussion: The length of the school day and the number of school 
days do not affect the formula used to allocate Part B funds to States. 
School day, as defined in Sec.  300.11(c)(1), is any day or partial day 
that children are in attendance at school for instructional purposes. 
If children attend school for only part of a school day and are 
released early (e.g., on the last day before summer vacation), that day 
would be considered to be a school day.
    Section 300.11(c)(2) already defines school day as having the same 
meaning for all children, including children with and without 
disabilities. Therefore, it is unnecessary for the regulations to 
clarify that non-instructional time (e.g., recess, lunch) is not 
counted as instructional time for a child with a disability unless such 
times are counted as instructional time for all children. Consistent 
with this requirement, days on which ESY services are provided cannot 
be counted as a school day because ESY services are provided only to 
children with disabilities.
    Changes: None.
Educational Service Agency (Sec.  300.12)
    Comment: One commenter questioned the accuracy of the citation, 20 
U.S.C. 1401(5), as the basis for including ``intermediate educational 
unit'' in the definition of educational service agency.
    Discussion: The definition of educational service agency is based 
on the provisions in section 602(5) of the Act. The definition was 
added by the Amendments to the Individuals with Disabilities Education 
Act in 1997, Pub. L. 105-17, to replace the definition of 
``intermediate educational unit'' (IEU) in section 602(23) of the Act, 
as in effect prior to June 4, 1997. Educational service agency does not 
exclude entities that were considered IEUs under prior law. To avoid 
any confusion about the use of this term, the definition clarifies that 
educational service agency includes entities that meet the definition 
of IEU in section 602(23) of the Act as in effect prior to June 4, 
1997. We believe the citation for IEU is consistent with the Act.
    Changes: None.
    Comment: One commenter requested that the regulations clarify that 
the reference to the definition of educational service agency in the 
definition of local educational agency or LEA in Sec.  300.28 means 
that educational service agencies (ESAs) and Bureau of Indian Affairs 
(BIA) schools have full responsibility and rights as LEAs under all 
provisions of the Act, including Sec.  300.226 (early intervening 
services).
    Discussion: With respect to ESAs, we believe that the provisions in 
Sec.  300.12 and Sec.  300.28 clarify that ESAs have full 
responsibility and rights as LEAs, including the provisions in Sec.  
300.226 related to early intervening services. However, the commenter's 
request regarding BIA schools is inconsistent with the Act. The 
definition of local educational agency in Sec.  300.28 and section 
602(19) of the Act, including the provision on BIA funded schools in 
section 602(19)(C) of the Act and in Sec.  300.28(c), states that the 
term ``LEA'' includes an elementary school or secondary school funded 
by the BIA, ``but only to the extent that the inclusion makes the 
school eligible for programs for which specific eligibility is not 
provided to the school in another provision of law and the school does 
not have a student population that is smaller than the student 
population of the LEA receiving assistance under the Act with the 
smallest student population.'' Therefore, BIA schools do not have full 
responsibility and rights as LEAs under all provisions of the Act.
    Changes: None.

[[Page 46553]]

Excess Costs (Sec.  300.16)
    Comment: One commenter stated that an example on calculating excess 
costs would be a helpful addition to the regulations.
    Discussion: We agree with the commenter and will include an example 
of calculating excess costs in Appendix A to Part 300--Excess Costs 
Calculation. In developing the example, we noted that while the 
requirements in Sec.  300.202 exclude debt service and capital outlay 
in the calculation of excess costs, the definition of excess costs in 
Sec.  300.16 does not mention this exclusion. We believe it is 
important to include this exclusion in the definition of excess costs 
and will add language in Sec.  300.16 to make this clear and consistent 
with the requirements in Sec.  300.202.
    Changes: We have revised Sec.  300.16(b) to clarify that the 
calculation of excess costs may not include capital outlay or debt 
service. We have also added Appendix A to Part 300--Excess Costs 
Calculation that provides an example and an explanation of how to 
calculate excess costs under the Act. A reference to Appendix A has 
been added in Sec.  300.16(b).
Free Appropriate Public Education or FAPE (Sec.  300.17)
    Comment: One commenter stated that the requirements in Sec. Sec.  
300.103 through 300.112 (Other FAPE Requirements) should be included in 
the definition of FAPE.
    Discussion: The other FAPE requirements in Sec. Sec.  300.103 
through 300.112 are included in subpart B of these regulations, rather 
than in the definition of FAPE in subpart A, to be consistent with the 
order and structure of section 612 of the Act, which includes all the 
statutory requirements related to State eligibility. The order and 
structure of these regulations follow the general order and structure 
of the provisions in the Act in order to be helpful to parents, State 
and LEA personnel, and the public both in reading the regulations, and 
in finding the direct link between a given statutory requirement and 
the regulation related to that requirement.
    Changes: None.
    Comment: Some commenters stated that the definition of FAPE should 
include special education services that are provided in conformity with 
a child's IEP in the least restrictive environment (LRE), consistent 
with the standards of the State educational agency (SEA).
    Discussion: The definition of FAPE in Sec.  300.17 accurately 
reflects the specific language in section 602(9) of the Act. We believe 
it is unnecessary to change the definition of FAPE in the manner 
recommended by the commenters because providing services in conformity 
with a child's IEP in the LRE is implicit in the definition of FAPE. 
Consistent with Sec.  300.17(b), FAPE means that special education and 
related services must meet the standards of the SEA and the 
requirements in Part B of the Act, which include the LRE requirements 
in Sec. Sec.  300.114 through 300.118. Additionally, Sec.  300.17(d) 
provides that FAPE means that special education and related services 
are provided in conformity with an IEP that meets the requirements in 
section 614(d) of the Act. Consistent with section 614(d)(1)(i)(V) of 
the Act, the IEP must include a statement of the extent, if any, to 
which the child will not participate with nondisabled children in the 
regular education class.
    Changes: None.
    Comment: One commenter recommended removing ``including the 
requirements of this part'' in Sec.  300.17(b) because this phrase is 
not included in the Act, and makes every provision in Part B of the Act 
a component of FAPE.
    Discussion: Section 300.17 is the same as current Sec.  300.13, 
which has been in the regulations since 1977. We do not believe that 
Sec.  300.17 makes every provision of this part applicable to FAPE.
    Changes: None.
Highly Qualified Special Education Teachers (Sec.  300.18)
    Comment: One commenter requested including the definition of 
``highly qualified teacher,'' as defined in the ESEA, in the 
regulations.
    Discussion: The ESEA defines ``highly qualified'' with regard to 
any public elementary or secondary school teacher. For the reasons set 
forth earlier in this notice, we are not adding definitions from other 
statutes to these regulations. However, we will include the current 
definition here for reference.
    The term ``highly qualified''--
    (A) When used with respect to any public elementary school or 
secondary school teacher teaching in a State, means that--
    (i) The teacher has obtained full State certification as a teacher 
(including certification obtained through alternative routes to 
certification) or passed the State teacher licensing examination, and 
holds a license to teach in such State, except that when used with 
respect to any teacher teaching in a public charter school, the term 
means that the teacher meets the requirements set forth in the State's 
public charter school law; and
    (ii) The teacher has not had certification or licensure 
requirements waived on an emergency, temporary, or provisional basis;
    (B) When used with respect to--
    (i) An elementary school teacher who is new to the profession, 
means that the teacher--
    (I) Holds at least a bachelor's degree; and
    (II) Has demonstrated, by passing a rigorous State test, subject 
knowledge and teaching skills in reading, writing, mathematics, and 
other areas of the basic elementary school curriculum (which may 
consist of passing a State-required certification or licensing test or 
tests in reading, writing, mathematics, and other areas of the basic 
elementary school curriculum); or
    (ii) A middle or secondary school teacher who is new to the 
profession, means that the teacher holds at least a bachelor's degree 
and has demonstrated a high level of competency in each of the academic 
subjects in which the teacher teaches by--
    (I) Passing a rigorous State academic subject test in each of the 
academic subjects in which the teacher teaches (which may consist of a 
passing level of performance on a State-required certification or 
licensing test or tests in each of the academic subjects in which the 
teacher teaches); or
    (II) Successful completion, in each of the academic subjects in 
which the teacher teaches, of an academic major, a graduate degree, 
coursework equivalent to an undergraduate academic major, or advanced 
certification or credentialing; and
    (C) When used with respect to an elementary, middle, or secondary 
school teacher who is not new to the profession, means that the teacher 
holds at least a bachelor's degree and--
    (i) Has met the applicable standard in clause (i) or (ii) of 
subparagraph (B), which includes an option for a test; or
    (ii) Demonstrates competence in all the academic subjects in which 
the teacher teaches based on a high objective uniform State standard of 
evaluation that--
    (I) Is set by the State for both grade appropriate academic subject 
matter knowledge and teaching skills;
    (II) Is aligned with challenging State academic content and student 
academic achievement standards and developed in consultation with core 
content specialists, teachers, principals, and school administrators;
    (III) Provides objective, coherent information about the teacher's 
attainment of core content knowledge in

[[Page 46554]]

the academic subjects in which a teacher teaches;
    (IV) Is applied uniformly to all teachers in the same academic 
subject and the same grade level throughout the State;
    (V) Takes into consideration, but not be based primarily on, the 
time the teacher has been teaching in the academic subject;
    (VI) Is made available to the public upon request; and
    (VII) May involve multiple, objective measures of teacher 
competency.
    Changes: None.
    Comment: A few commenters recommended defining the term ``special 
education teacher.'' Other commenters recommended that States define 
highly qualified special education teachers and providers. One 
commenter stated that the regulations should define the role of the 
special education teacher as supplementing and supporting the regular 
education teacher who is responsible for teaching course content.
    One commenter requested that the regulations clarify that a special 
education teacher who is certified as a regular education teacher with 
an endorsement in special education meets the requirements for a highly 
qualified special education teacher. Another commenter recommended 
changing the definition of a highly qualified special education teacher 
so that States cannot provide a single certification for all areas of 
special education. One commenter requested clarification regarding the 
highly qualified special education teacher standards for special 
education teachers with single State endorsements in the area of 
special education. A few commenters recommended clarifying that when a 
State determines that a teacher is fully certified in special 
education, this means that the teacher is knowledgeable and skilled in 
the special education area in which certification is received. One 
commenter recommended that teacher qualifications and standards be 
consistent from State to State.
    Discussion: Section 300.18(b), consistent with section 602(10)(B) 
of the Act, provides that a highly qualified special education teacher 
must have full State special education certification (including 
certification obtained through alternative routes to certification) or 
have passed the State special education teacher licensing examination 
and hold a license to teach in the State; have not had special 
education certification or licensure requirements waived on an 
emergency, temporary, or provisional basis; and hold at least a 
bachelor's degree. Except to the extent addressed in Sec.  300.18(c) 
and (d), special education teachers who teach core academic subjects 
must, in addition to meeting these requirements, demonstrate subject-
matter competency in each of the core academic subjects in which the 
teacher teaches.
    States are responsible for establishing certification and licensing 
standards for special education teachers. Each State uses its own 
standards and procedures to determine whether teachers who teach within 
that State meet its certification and licensing requirements. Teacher 
qualifications and standards are consistent from State to State to the 
extent that States work together to establish consistent criteria and 
reciprocity agreements. It is not the role of the Federal government to 
regulate teacher certification and licensure.
    Changes: None.
    Comment: One commenter stated that LEAs must train special 
education teachers because most special education teachers are not 
highly qualified upon graduation from a college program. A few 
commenters recommended that the regulations encourage SEAs to require 
coursework for both special education and general education teachers in 
the areas of behavior management and classroom management. One 
commenter recommended that the requirements for special education 
teachers include competencies in reading instruction and in properly 
modifying and accommodating instruction. Another commenter supported 
training in special education and related services for general 
education teachers. One commenter expressed support for collaboration 
between special education and regular education teachers. Some 
commenters recommended requiring a highly qualified general education 
teacher teaching in a self-contained special education classroom to 
work in close collaboration with the special education teacher assigned 
to those children. Another commenter stated that the definition of a 
highly qualified special education teacher will be meaningless if the 
training for teachers is not consistent across States.
    Discussion: Personnel training needs vary across States and it 
would be inappropriate for the regulations to require training on 
specific topics. Consistent with Sec.  300.156 and section 612(a)(14) 
of the Act, each State is responsible for ensuring that teachers, 
related services personnel, paraprofessionals, and other personnel 
serving children with disabilities under Part B of the Act are 
appropriately and adequately prepared and trained and have the content 
knowledge and skills required to serve children with disabilities.
    Changes: None.
    Comment: One commenter recommended that the regulations include 
standards for highly qualified special education paraprofessionals, 
similar to the requirements under the ESEA.
    Discussion: Section Sec.  300.156(b) specifically requires the 
qualifications for paraprofessionals to be consistent with any State-
approved or State-recognized certification, licensing, registration, or 
other comparable requirements that apply to the professional discipline 
in which those personnel are providing special education or related 
services.
    In addition, the ESEA requires that paraprofessionals, including 
special education paraprofessionals who assist in instruction in title 
I-funded programs, have at least an associate's degree, have completed 
at least two years of college, or meet a rigorous standard of quality 
and demonstrate, through a formal State or local assessment, knowledge 
of, and the ability to assist in instruction in reading, writing, and 
mathematics, reading readiness, writing readiness, or mathematics 
readiness, as appropriate. Paraprofessionals in title I schools do not 
need to meet these requirements if their role does not involve 
instructional support, such as special education paraprofessionals who 
solely provide personal care services. For more information on the ESEA 
requirements for paraprofessionals, see 34 CFR 200.58 and section 1119 
of the ESEA, and the Department's nonregulatory guidance, Title I 
Paraprofessionals (March 1, 2004), which can be found on the 
Department's Web site at: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.ed.gov/policy/elsec/guid/paraguidance.pdf
.

    We believe these requirements are sufficient to ensure that 
children with disabilities receive services from paraprofessionals who 
are appropriately and adequately trained. Therefore, we decline to 
include additional standards for paraprofessionals.
    Changes: None.
    Comment: Numerous commenters requested clarification as to whether 
early childhood and preschool special education teachers must meet the 
highly qualified special education teacher standards. Several 
commenters stated that requiring early childhood and preschool special 
education teachers to meet the highly qualified special education 
teacher standards would exceed statutory authority and exacerbate the 
shortage of special education teachers. A few commenters supported 
allowing States to decide

[[Page 46555]]

whether the highly qualified special education teacher requirements 
apply to preschool teachers.
    Discussion: The highly qualified special education teacher 
requirements apply to all public elementary school and secondary school 
special education teachers, including early childhood or preschool 
teachers if a State includes the early childhood or preschool programs 
as part of its elementary school and secondary school system. If the 
early childhood or preschool program is not a part of a State's public 
elementary school and secondary school system, the highly qualified 
special education teacher requirements do not apply.
    Changes: None.
    Comment: One commenter requested clarification regarding the scope 
of the highly qualified special education teacher requirements for 
instructors who teach core academic subjects in specialized schools, 
such as schools for the blind, and recommended that there be different 
qualifications for instructors who provide orientation and mobility 
instruction or travel training for children who are blind or visually 
impaired.
    One commenter requested adding travel instructors to the list of 
special educators who need to be highly qualified. Some commenters 
recommended adding language to include certified and licensed special 
education teachers of children with low incidence disabilities as 
highly qualified special education teachers. A few commenters requested 
that the requirements for teachers who teach children with visual 
impairments include competencies in teaching Braille, using assistive 
technology devices, and conducting assessments, rather than 
competencies in core subject areas. Some commenters requested more 
flexibility in setting the standards for teachers of children with 
visual impairments and teachers of children with other low incidence 
disabilities. One commenter requested clarification regarding the 
requirements for teachers of children with low incidence disabilities.
    Discussion: Consistent with Sec.  300.156 and section 612(a)(14) of 
the Act, it is the responsibility of each State to ensure that teachers 
and other personnel serving children with disabilities under Part B of 
the Act are appropriately and adequately prepared and trained and have 
the content knowledge and skills to serve children with disabilities, 
including teachers of children with visual impairments and teachers of 
children with other low incidence disabilities.
    The highly qualified special education teacher requirements apply 
to all public school special education teachers. There are no separate 
or special provisions for special education teachers who teach in 
specialized schools, for teachers of children who are blind and 
visually impaired, or for teachers of children with other low incidence 
disabilities and we do not believe there should be because these 
children should receive the same high quality instruction from teachers 
who meet the same high standards as all other teachers and who have the 
subject matter knowledge and teaching skills necessary to assist these 
children to achieve to high academic standards.
    Changes: None.
    Comment: One commenter requested clarification on how the highly 
qualified special education teacher requirements impact teachers who 
teach children of different ages. A few commenters recommended adding a 
provision for special education teachers who teach at multiple age 
levels, similar to the special education teacher who teaches multiple 
subjects.
    Discussion: The Act does not include any special requirements for 
special education teachers who teach at multiple age levels. Teachers 
who teach at multiple age levels must meet the same requirements as all 
other special education teachers to be considered highly qualified. The 
clear intent of the Act is to ensure that all children with 
disabilities have teachers with the subject matter knowledge and 
teaching skills necessary to assist children with disabilities achieve 
to high academic standards. Therefore, we do not believe there should 
be different requirements for teachers who teach at multiple age 
levels.
    Changes: None.
    Comment: One commenter recommended including specific criteria 
defining a highly qualified special education literacy teacher.
    Discussion: Under Sec.  300.18(a), a special education literacy 
teacher who is responsible for teaching reading must meet the ESEA 
highly qualified teacher requirements including competency in reading, 
as well as the highly qualified special education teacher requirements. 
We do not believe that further regulation is needed as the Act leaves 
teacher certification and licensing requirements to States.
    Changes: None.
    Comment: Many commenters expressed concern that the highly 
qualified special education teacher standards will make it more 
difficult to recruit and retain special education teachers. Some 
commenters stated that most special education teachers will need to 
hold more than one license or certification to meet the highly 
qualified special education teacher requirements and that the time and 
expense needed to obtain the additional licenses or certifications is 
unreasonable. One commenter stated that schools will have to hire two 
or three teachers for every one special education teacher, thereby 
increasing education costs.
    One commenter expressed concern about losing special education 
teachers who teach multiple subjects in alternative education and 
homebound programs because they will not meet the highly qualified 
special education teacher requirements. One commenter expressed concern 
that the requirements set a higher standard for teachers in self-
contained classrooms. Another commenter stated that requiring special 
education teachers in secondary schools to be experts in all subjects 
is a burden that elementary teachers do not have.
    Discussion: The Department understands the concerns of the 
commenters. However, the clear intention of the Act is to ensure that 
all children with disabilities have teachers with the subject-matter 
knowledge and teaching skills necessary to assist children with 
disabilities achieve to high academic standards.
    To help States and districts meet these standards, section 651 of 
the Act authorizes State Personnel Development grants to help States 
reform and improve their systems for personnel preparation and 
professional development in early intervention, educational, and 
transition services in order to improve results for children with 
disabilities. In addition, section 662 of the Act authorizes funding 
for institutions of higher education, LEAs, and other eligible local 
entities to improve or develop new training programs for teachers and 
other personnel serving children with disabilities.
    Changes: None.
    Comment: One commenter requested further clarification regarding 
the requirements for secondary special education teachers to be highly 
qualified in the core subjects they teach, as well as certified in 
special education.
    Discussion: Consistent with Sec.  300.18(a) and (b) and section 
602(10)(A) and (B) of the Act, secondary special education teachers who 
teach core academic subjects must meet the highly qualified teacher 
standards established in the ESEA (which includes competency in each 
core academic subject the teacher teaches) and the highly qualified 
special education teacher requirements in

[[Page 46556]]

Sec.  300.18(b) and section 602(10)(B) of the Act.
    Consistent with Sec.  300.18(c) and section 602(10)(C) of the Act, 
a secondary special education teacher who teaches core academic 
subjects exclusively to children assessed against alternate achievement 
standards can satisfy the highly qualified special education teacher 
requirements by meeting the requirements for a highly qualified 
elementary teacher under the ESEA, or in the case of instruction above 
the elementary level, have subject matter knowledge appropriate to the 
level of instruction being provided, as determined by the State, to 
effectively teach to those standards.
    Changes: None.
    Comment: One commenter expressed concern that the highly qualified 
teacher requirements will drive secondary teachers who teach children 
with emotional and behavioral disorders out of the field and requested 
that the requirements be changed to require special education 
certification in one core area, plus a reasonable amount of training in 
other areas. Another commenter recommended permitting special education 
teachers of core academic subjects at the elementary level to be highly 
qualified if they major in elementary education and have coursework in 
math, language arts, and science. One commenter recommended that any 
special education teacher certified in a State prior to 2004 be exempt 
from having to meet the highly qualified special education teacher 
requirements.
    Discussion: The definition of a highly qualified special education 
teacher in Sec.  300.18 accurately reflects the requirements in section 
602(10) of the Act. To change the regulations in the manner recommended 
by the commenters would be inconsistent with the Act and the Act's 
clear intent of ensuring that all children with disabilities have 
teachers with the subject matter knowledge and teaching skills 
necessary to assist children with disabilities achieve to high academic 
standards. Therefore, we decline to change the requirements in Sec.  
300.18.
    Changes: None.
    Comment: One commenter stated that there is a double standard in 
the highly qualified teacher requirements because general education 
teachers are not required to be certified in special education even 
though they teach children with disabilities. Another commenter 
recommended requiring general education teachers who teach children 
with disabilities to meet the highly qualified special education 
teacher requirements.
    Discussion: We cannot make the changes suggested by the commenter 
because the Act does not require general education teachers who teach 
children with disabilities to be certified in special education. 
Further, the legislative history of the Act would not support these 
changes. Note 21 in the U.S. House of Representatives Conference Report 
No. 108-779 (Conf. Rpt.), p. 169, clarifies that general education 
teachers who are highly qualified in particular subjects and who teach 
children with disabilities in those subjects are not required to have 
full State certification as a special education teacher. For example, a 
reading specialist who is highly qualified in reading instruction, but 
who is not certified as a special education teacher, would not be 
prohibited from providing reading instruction to children with 
disabilities.
    The Act focuses on ensuring that children with disabilities achieve 
to high academic standards and have access to the same curriculum as 
other children. In order to achieve this goal, teachers who teach core 
academic subjects to children with disabilities must be competent in 
the core academic areas in which they teach. This is true for general 
education teachers, as well as special education teachers.
    Changes: None.
    Comment: Some commenters expressed concern that LEAs may reduce 
placement options for children with disabilities because of the 
shortage of highly qualified teachers. A few commenters recommended 
requiring each State to develop and implement policies to ensure that 
teachers meet the highly qualified special education teacher 
requirements, while maintaining a full continuum of services and 
alternative placements to respond to the needs of children with 
disabilities.
    Discussion: It would be inconsistent with the LRE requirements in 
section 612(a)(5) of the Act for a public agency to restrict the 
placement options for children with disabilities. Section 300.115, 
consistent with section 612(a)(5) of the Act, requires each public 
agency to ensure that a continuum of alternative placements is 
available to meet the needs of children with disabilities.
    The additional requirements requested by the commenter are not 
necessary because States already must develop and implement policies to 
ensure that the State meets the LRE and personnel standards 
requirements in sections 612(a)(5) and (a)(14) of the Act, 
respectively.
    Changes: None.
    Comment: One commenter stated that personnel working in charter 
schools should meet the same requirements as all other public school 
personnel. Several commenters expressed concern regarding the exemption 
of charter school teachers from the highly qualified special education 
teacher requirements. One commenter stated that while a special 
education teacher in a charter school does not have to be licensed or 
certified by the State if the State's charter school law does not 
require such licensure or certification, all other elements of the 
highly qualified special education teacher requirements should apply to 
charter school teachers, including demonstrated competency in core 
academic subject areas.
    Discussion: The certification requirements for charter school 
teachers are established in a State's public charter school law, and 
may differ from the requirements for full State certification for 
teachers in other public schools. The Department does not have the 
authority to change State charter school laws to require charter school 
teachers to meet the same requirements as all other public school 
teachers.
    In addition to the certification requirements established in a 
State's public charter school law, if any, section 602(10) of the Act 
requires charter school special education teachers to hold at least a 
bachelor's degree and, if they are teaching core academic subjects, 
demonstrate competency in the core academic areas they teach. We will 
add language in Sec.  300.18(b) to clarify that special education 
teachers in public charter schools must meet the certification or 
licensing requirements, if any, established by a State's public charter 
school law.
    Changes: We have added the words ``if any'' in Sec.  
300.18(b)(1)(i) to clarify that special education teachers in public 
charter schools must meet any certification or licensing requirements 
established by a State's public charter school law.
    Comment: One commenter stated that the regulations use the terms 
``highly qualified'' and ``fully certified'' in a manner that implies 
they are synonymous, and recommended that the regulations maintain the 
distinction between the two terms.
    Discussion: Full State certification is determined under State law 
and policy and means that a teacher has fully met State requirements, 
including any requirements related to a teacher's years of teaching 
experience. For example, State requirements may vary for first-year 
teachers versus teachers who are not new to the profession. Full State

[[Page 46557]]

certification also means that the teacher has not had certification or 
licensure requirements waived on an emergency, temporary, or 
provisional basis.
    The terms ``highly qualified'' and ``fully certified'' are 
synonymous when used to refer to special education teachers who are not 
teaching core academic subjects. For special education teachers 
teaching core academic subjects, however, both full special education 
certification or licensure and subject matter competency are required.
    Changes: We have changed the heading to Sec.  300.18(a) and the 
introductory material in Sec.  300.18(a) and (b)(1) for clarity.
    Comment: A few commenters recommended prohibiting States from 
creating new categories to replace emergency, temporary, or provisional 
licenses that lower the standards for full certification in special 
education.
    Discussion: We do not believe it is necessary to add the additional 
language recommended by the commenters. Section 300.18(b)(1)(ii) and 
section 602(10)(B)(ii) of the Act are clear that a teacher cannot be 
considered a highly qualified special education teacher if the teacher 
has had special education certification or licensure waived on an 
emergency, temporary, or provisional basis. This would include any new 
certification category that effectively allows special education 
certification or licensure to be waived on an emergency, temporary, or 
provisional basis.
    Changes: None.
    Comment: Some commenters supported alternative route to 
certification programs for special education teachers. One commenter 
stated that these programs are necessary to increase the number of 
highly qualified teachers and will help schools on isolated tribal 
reservations recruit, train, and retain highly qualified teachers. 
However, numerous commenters expressed concerns and objections to 
alternative route to certification programs for special education 
teachers. Several commenters stated that allowing individuals making 
progress in an alternative route to certification program to be 
considered highly qualified and fully certified creates a lower 
standard, short-changes children, is not supported by any provision in 
the Act, and undermines the requirement for special education teachers 
to be fully certified. One commenter stated that this provision is 
illogical and punitive to higher education teacher training programs 
because it allows individuals in an alternative route to certification 
program to be considered highly qualified and fully certified during 
their training program, while at the same time individuals in regular 
teacher training programs that meet the same requirements as 
alternative route to certification programs are not considered highly 
qualified or fully certified. One commenter argued that an individual 
participating in an alternative route to certification program would 
need certification waived on an emergency, temporary, or provisional 
basis, which means the individual has not met the requirements in Sec.  
300.18(b)(1)(ii). Another commenter stated that three years is not 
enough time for a teacher enrolled in an alternative route to 
certification program to assume the functions of a teacher.
    Discussion: While we understand the general objections to 
alternative route to certification programs expressed by the 
commenters, the Department believes that alternative route to 
certification programs provide an important option for individuals 
seeking to enter the teaching profession. The requirements in Sec.  
300.18(b)(2) were included in these regulations to provide consistency 
with the requirements in 34 CFR 200.56(a)(2)(ii)(A) and the ESEA, 
regarding alternative route to certification programs. To help ensure 
that individuals participating in alternative route to certification 
programs are well trained, there are certain requirements that must be 
met as well as restrictions on who can be considered to have obtained 
full State certification as a special education teacher while enrolled 
in an alternative route to certification program. An individual 
participating in an alternative route to certification program must (1) 
hold at least a bachelor's degree and have demonstrated subject-matter 
competency in the core academic subject(s) the individual will be 
teaching; (2) assume the functions of a teacher for not more than three 
years; and (3) demonstrate satisfactory progress toward full 
certification, as prescribed by the State. The individual also must 
receive, before and while teaching, high-quality professional 
development that is sustained, intensive, and classroom-focused and 
have intensive supervision that consists of structured guidance and 
regular ongoing support.
    It was the Department's intent to allow an individual who wants to 
become a special education teacher, but does not plan to teach a core 
academic subject, to enroll in an alternative route to certification 
program and be considered highly qualified, provided that the 
individual holds at least a bachelor's degree. This requirement, 
however, was inadvertently omitted in the NPRM. Therefore, we will add 
appropriate references in Sec.  300.18(b)(3) to clarify that an 
individual participating in an alternative route to certification 
program in special education who does not intend to teach a core 
academic subject, may be considered a highly qualified special 
education teacher if the individual holds at least a bachelor's degree 
and participates in an alternative route to certification program that 
meets the requirements in Sec.  300.18(b)(2).
    Changes: Appropriate citations have been added in Sec.  
300.18(b)(3) to clarify the requirements for individuals enrolled in 
alternative route to special education teacher certification programs.
    Comment: A few commenters recommended more specificity in the 
requirements for teachers participating in alternative route to 
certification programs, rather than giving too much discretion to 
States to develop programs that do not lead to highly qualified 
personnel. However, one commenter recommended allowing States the 
flexibility to create their own guidelines for alternative route to 
certification programs.
    Several commenters recommended clarifying the requirements for the 
teacher supervising an individual who is participating in an 
alternative route to certification program. One commenter recommended 
requiring supervision, guidance, and support by a professional with 
expertise in the area of special education in which the teacher desires 
to become certified.
    Discussion: Consistent with Sec.  300.18(b)(2)(ii), States are 
responsible for ensuring that the standards for alternative route to 
certification programs in Sec.  300.18(b)(2)(i) are met. It is, 
therefore, up to each State to determine whether to require specific 
qualifications for the teachers responsible for supervising teachers 
participating in an alternative route to certification program.
    Changes: None.
    Comment: One commenter requested clarification regarding the roles 
and responsibilities of special education teachers who do not teach 
core academic subjects.
    Discussion: Special education teachers who do not directly instruct 
children in any core academic subject or who provide only consultation 
to highly qualified teachers of core academic subjects do not need to 
demonstrate subject-matter competency in those subjects. These special 
educators could provide consultation services to other teachers, such 
as adapting curricula,

[[Page 46558]]

using behavioral supports and interventions, or selecting appropriate 
accommodations for children with disabilities. They could also assist 
children with study skills or organizational skills and reinforce 
instruction that the child has already received from a highly qualified 
teacher in that core academic subject.
    Changes: None.
    Comment: Many commenters recommended including language in the 
regulations to clarify that special education teachers who do not teach 
core academic subjects and provide only consultative services must 
restrict their services to areas that supplement, not replace, the 
direct instruction provided by a highly qualified general education 
teacher. One commenter recommended that States develop criteria for 
teachers who provide consultation services. Another commenter stated 
that special education teachers should not work on a consultative 
basis.
    Discussion: The definition of consultation services and whether a 
special education teacher provides consultation services are matters 
best left to the discretion of each State. While States may develop 
criteria to distinguish consultation versus instructional services, the 
Act and the ESEA are clear that teachers who provide direct instruction 
in a core academic subject, including special education teachers, must 
meet the highly qualified teacher requirements, which include 
demonstrated competency in each of the core academic subjects the 
teacher teaches.
    Changes: None.
Requirements for Highly Qualified Special Education Teachers Teaching 
to Alternate Achievement Standards (Sec.  300.18(c))
    Comment: One commenter recommended replacing ``alternate 
achievement standards'' with ``alternate standards.'' A few commenters 
requested including a definition of alternate achievement standards in 
the regulations.
    Discussion: ``Alternate achievement standards'' is statutory 
language and, therefore, it would be inappropriate to change 
``alternate achievement standards'' to ``alternate standards.''
    For the reasons set forth earlier in this notice, we are not adding 
definitions from other statutes to these regulations. However, we will 
include the current description of alternate achievement standards in 
34 CFR 200.1(d) of the ESEA regulations here for reference.
    For children under section 602(3) of the Individuals with 
Disabilities Education Act with the most significant cognitive 
disabilities who take an alternate assessment, a State may, through a 
documented and validated standards-setting process, define alternate 
academic achievement standards, provided those standards--
    (1) Are aligned with the State's academic content standards;
    (2) Promote access to the general curriculum; and
    (3) Reflect professional judgment of the highest achievement 
standards possible.
    Changes: None.
    Comment: Several commenters expressed concern with allowing high 
school students with significant cognitive disabilities to be taught by 
a certified elementary school teacher. One commenter stated that high 
school students with disabilities should be prepared to lead productive 
adult lives, and not be treated as young children. Another commenter 
stated that these requirements foster low expectations for children 
with the most significant cognitive disabilities and will be used to 
justify providing children with instruction that is not age appropriate 
or that denies access to the general education curriculum. A few 
commenters stated that the requirements for special education teachers 
teaching to alternate achievement standards should be the same as the 
requirements for all special education teachers.
    Some commenters recommended requiring teachers who teach to 
alternate achievement standards to have subject matter knowledge to 
provide instruction aligned to the academic content standards for the 
grade level in which the student is enrolled. One commenter recommended 
requiring any special education teacher teaching to alternate 
achievement standards to demonstrate knowledge of age-appropriate core 
curriculum content to ensure children with disabilities are taught a 
curriculum that is closely tied to the general education curriculum 
taught to other children of the same age.
    Discussion: The regulations promulgated under section 1111(b)(1) of 
the ESEA permit States to use alternate achievement standards to 
evaluate the performance of a small group of children with the most 
significant cognitive disabilities who are not expected to meet grade-
level standards even with the best instruction. An alternate 
achievement standard sets an expectation of performance that differs in 
complexity from a grade-level achievement standard. Section 
602(10)(C)(ii) of the Act, therefore, allows special education teachers 
teaching exclusively children who are assessed against alternate 
achievement standards to meet the highly qualified teacher standards 
that apply to elementary school teachers. In the case of instruction 
above the elementary level, the teacher must have subject matter 
knowledge appropriate to the level of instruction being provided, as 
determined by the State, in order to effectively teach to those 
standards.
    We do not agree that allowing middle and high school students with 
the most significant cognitive disabilities to be taught by teachers 
who meet the qualifications of a highly qualified elementary teacher 
fosters low expectations, encourages students to be treated like 
children, promotes instruction that is not age appropriate, or denies 
students access to the general curriculum. Although alternate 
achievement standards differ in complexity from grade-level standards, 
34 CFR 200.1(d) requires that alternate achievement standards be 
aligned with the State's content standards, promote access to the 
general curriculum, and reflect professional judgment of the highest 
achievement standards possible. In short, we believe that the 
requirements in Sec.  300.18(c) will ensure that teachers teaching 
exclusively children who are assessed against alternate achievement 
standards will have the knowledge to provide instruction aligned to 
grade-level content standards so that students with the most 
significant cognitive disabilities are taught a curriculum that is 
closely tied to the general curriculum.
    Changes: None.
    Comment: A few commenters requested clarification regarding the 
meaning of ``subject matter knowledge appropriate to the level of 
instruction provided'' in Sec.  300.18(c)(2).
    Discussion: Section 300.18(c)(2) requires that if a teacher (who is 
teaching exclusively to alternate achievement standards) is teaching 
students who need instruction above the elementary school level, the 
teacher must have subject matter knowledge appropriate to the level of 
instruction needed to effectively teach to those standards. The purpose 
of this requirement is to ensure that teachers exclusively teaching 
children who are assessed based on alternate academic achievement 
standards above the elementary level have sufficient subject matter 
knowledge to effectively instruct in each of the core academic subjects 
being taught, at the level of difficulty being taught. For example, if 
a high school student (determined by the IEP Team to be assessed 
against alternate achievement standards) has knowledge and skills in 
math at the 7th grade level,

[[Page 46559]]

but in all other areas functions at the elementary level, the teacher 
would need to have knowledge in 7th grade math in order to effectively 
teach the student to meet the 7th grade math standards. No further 
clarification is necessary.
    Changes: None.
    Comment: A few commenters recommended that the regulations include 
requirements for teachers who provide instruction to children assessed 
against modified achievement standards. Several commenters stated that 
the requirements for teachers teaching children assessed against 
modified achievement standards should be the same for teachers teaching 
children assessed against alternate achievement standards.
    Discussion: The Department has not issued final regulations 
addressing modified achievement standards and the specific criteria for 
determining which children with disabilities should be assessed based 
on modified achievement standards. As proposed, the modified 
achievement standards must be aligned with the State's academic content 
standards for the grade in which the student is enrolled and provide 
access to the grade-level curriculum. For this reason, we see no need 
for a further exception to the ``highly qualified teacher'' provisions 
at this time.
    Changes: None.
Requirements for Highly Qualified Special Education Teachers Teaching 
Multiple Subjects (Sec.  300.18(d))
    Comment: A few commenters stated that the requirements for teachers 
who teach two or more core academic subjects exclusively to children 
with disabilities are confusing. Some commenters requested additional 
guidance and flexibility for special education teachers teaching two or 
more core academic subjects. Other commenters recommended allowing 
special education teachers more time to become highly qualified in all 
the core academic subjects they teach.
    Discussion: The requirements in Sec.  300.18(d), consistent with 
section 602(10)(C) of the Act, provide flexibility for teachers who 
teach multiple core academic subjects exclusively to children with 
disabilities. Section 300.18(d)(2) and (3) allows teachers who are new 
and not new in the profession to demonstrate competence in all the core 
academic subjects in which the teacher teaches using a single, high 
objective uniform State standard of evaluation (HOUSSE) covering 
multiple subjects. In addition, Sec.  300.18(d)(3) gives a new special 
education teacher who teaches multiple subjects, and who is highly 
qualified in mathematics, language arts, or science at the time of 
hire, two years after the date of employment to demonstrate competence 
in the other core academic subjects in which the teacher teaches. We do 
not believe that further clarification is necessary.
    Changes: None.
    Comment: One commenter requested clarification regarding the 
meaning of the following phrases in Sec.  300.18(d): ``multiple 
subjects,'' ``in the same manner,'' and ``all the core academic 
subjects.''
    Discussion: ``Multiple subjects'' refers to two or more core 
academic subjects. Section 300.18(d) allows teachers who are new or not 
new to the profession to demonstrate competence in ``all the core 
subjects'' in which the teacher teaches ``in the same manner'' as is 
required for an elementary, middle, or secondary school teacher under 
the ESEA. As used in this context, ``in the same manner'' means that 
special education teachers teaching multiple subjects can demonstrate 
competence in the core academic subjects they teach in the same way 
that is required for elementary, middle, or secondary school teachers 
in 34 CFR 200.56 of the ESEA regulations. ``All the core subjects'' 
refers to the core academic subjects, which include English, reading or 
language arts, mathematics, science, foreign languages, civics and 
government, economics, arts, history, and geography, consistent with 
Sec.  300.10.
    Changes: None.
    Comment: One commenter recommended ensuring that the requirements 
in Sec.  300.18(d) apply to special education teachers who teach 
children with severe disabilities in more than one core subject area.
    Discussion: The requirements in Sec.  300.18(d) do not exclude 
teachers who teach children with severe disabilities in more than one 
core subject area. Consistent with Sec.  300.18(d) and section 
602(10)(D) of the Act, the requirements apply to special education 
teachers who teach two or more core academic subjects exclusively to 
children with disabilities, including, but not limited to, children 
with severe disabilities. We do not believe that further clarification 
is necessary.
    Changes: None.
    Comment: A significant number of commenters recommended adding 
language to the regulations to permit a separate HOUSSE for special 
education teachers, including a single HOUSSE that covers multiple 
subjects. Some commenters supported a single HOUSSE covering multiple 
subjects for special education teachers, as long as those adaptations 
of a State's HOUSSE for use with special education teachers do not 
establish lower standards for the content knowledge requirements for 
special education teachers.
    Discussion: States have the option of developing a method by which 
teachers can demonstrate competency in each subject they teach on the 
basis of a HOUSSE. Likewise, we believe States should have the option 
of developing a separate HOUSSE for special education teachers.
    States have flexibility in developing their HOUSSE evaluation as 
long as it meets each of the following criteria established in section 
9101(23)(C)(ii) of the ESEA:
    • Be set by the State for both grade-appropriate academic 
subject-matter knowledge and teaching skills;
    • Be aligned with challenging State academic content and 
student academic achievement standards and developed in consultation 
with core content specialists, teachers, principals, and school 
administrators;
    • Provide objective, coherent information about the 
teacher's attainment of core content knowledge in the academic subjects 
in which a teacher teaches;
    • Be applied uniformly to all teachers in the same academic 
subject and teaching in the same grade level throughout the State;
    • Take into consideration, but not be based primarily on, 
the time the teacher has been teaching in the academic subject; and
    • Be made available to the public upon request.
    The ESEA also permits States, when developing their HOUSSE 
procedures, to involve multiple, objective measures of teacher 
competency. Each evaluation should have a high, objective, uniform 
standard that the candidate is expected to meet or to exceed. These 
standards for evaluation must be applied to each candidate in the same 
way.
    We believe it is appropriate and consistent with the Act to permit 
States to develop a separate HOUSSE for special education teachers to 
demonstrate subject matter competency and to use a single HOUSSE 
covering multiple subjects, provided that any adaptations to the HOUSSE 
do not establish a lower standard for the content knowledge 
requirements for special education teachers and meet all the 
requirements for a HOUSSE for regular education teachers established in 
section 9101(23)(C)(ii) of the ESEA.
    Changes: We have added a new paragraph (e) to Sec.  300.18 to allow 
States to develop a separate HOUSSE for

[[Page 46560]]

special education teachers and to permit the use of a single HOUSSE 
covering multiple subjects. Subsequent paragraphs have been renumbered.
    Comment: A few commenters stated that the HOUSSE should only be 
used to address the content requirements, not primary certification as 
a special educator.
    Discussion: A HOUSSE is a method by which teachers can demonstrate 
competency in each subject they teach. A HOUSSE does not address the 
requirement for full State certification as a special education 
teacher.
    Changes: None.
    Comment: Several commenters recommended clarifying the requirements 
for a HOUSSE, particularly at the high school level. One commenter 
recommended clarifying the use of a separate HOUSSE for teachers of 
children with visual impairments.
    Discussion: The requirements for a HOUSSE apply to public school 
elementary, middle, and high school special education teachers. Neither 
the Act nor the ESEA provides for different HOUSSE procedures at the 
high school level. Similarly, there are no requirements for separate 
HOUSSE procedures for teachers who teach children with visual 
impairments or any other specific type of disability. We do not believe 
it is necessary or appropriate to establish separate requirements for 
separate HOUSSE procedures for teachers who teach children with visual 
impairments or any other specific type of disability. All children with 
disabilities, regardless of their specific disability, should have 
teachers with the subject matter knowledge to assist them to achieve to 
high academic standards.
    Changes: None.
    Comment: One commenter recommended that States work collaboratively 
to ensure there is State reciprocity of content area standards for 
special education teachers, including HOUSSE provisions.
    Discussion: It is up to each State to determine when and on what 
basis to accept another State's determination that a particular teacher 
is highly qualified. Additionally, each State determines whether to 
consider a teacher from another State to be both fully certified and 
competent in each subject area.
    Changes: None.
    Comment: One commenter requested specific guidance on how to design 
a multi-subject HOUSSE for special education teachers.
    Discussion: The Department's non-regulatory guidance on Improving 
Teacher Quality State Grants issued on August 3, 2005 (available at 
http://www.ed.gov/programs/teacherqual/guidance.doc.) provides the 

following guidance to States when developing their HOUSSE procedures 
(see question A-10):
    • Do the HOUSSE procedures provide an ``objective'' way of 
determining whether teachers have adequate subject-matter knowledge in 
each core academic subject they teach?
    • Is there a strong and compelling rationale for each part 
of the HOUSSE procedures?
    • Do the procedures take into account, but not primarily 
rely on, previous teaching experience?
    • Does the plan provide solid evidence that teachers have 
mastered the subject-matter content of each of the core academic 
subjects they are teaching? (Note: experience and association with 
content-focused groups or organizations do not necessarily translate 
into an objective measure of content knowledge.)
    • Has the State consulted with core content specialists, 
teachers, principals, and school administrators?
    • Does the State plan to widely distribute its HOUSSE 
procedures, and are they presented in a format understandable to all 
teachers?
    Changes: None.
    Comment: A few commenters asked whether the additional time allowed 
for teachers living in rural areas who teach multiple subjects applies 
to special education teachers. One commenter requested that teachers in 
rural areas have three extra years after the date of employment to meet 
the standards. Another commenter stated it will be difficult for these 
teachers to meet the highly qualified special education teacher 
requirements even with an extended deadline.
    Discussion: The Department's policy on flexibility for middle and 
high school teachers in rural schools applies to special education 
teachers. Under this policy, announced on March 15, 2004, States may 
permit LEAs eligible to participate in the Small Rural School 
Achievement (SRSA) program that employ teachers who teach multiple 
subjects and are highly qualified in at least one core academic 
subject, to have until the end of the 2006-07 school year for these 
teachers to be highly qualified in each subject that they teach. Newly-
hired teachers in these covered LEAs have three years from the date of 
hire to become highly qualified in each core academic subject that they 
teach. More information about this policy is available in the 
Department's nonregulatory guidance, Improving Teacher Quality State 
Grants (August 3, 2005), which can be found on the Department's Web 
site at: 
http://www.ed.gov/programs/teacherqual/guidance.doc.

    Changes: None.
    Comment: Some commenters requested a definition of ``new'' special 
education teacher and asked whether it applies to teachers hired after 
the date of enactment of the Act, December 3, 2004, or after the 2005-
06 school year. One commenter asked whether a fully certified regular 
education teacher who enrolls in a special education teacher training 
program would be considered ``new'' to the profession when he or she 
completes the training program.
    Discussion: Under the Act, mere completion of a special education 
teacher training program is not a sufficient predicate for being 
considered a highly qualified special education teacher. Section 
602(10)(B) of the Act requires full State certification or licensure as 
a special education teacher, and this would apply to teachers who are 
already certified or licensed as a regular education teacher, as well 
as to other individuals.
    On the question of when a person is ``new to the profession,'' the 
Department's non-regulatory guidance on Improving Teacher Quality State 
Grants issued on August 3, 2005, clarifies that States have the 
authority to define which teachers are new and not new to the 
profession; however, those definitions must be reasonable. The guidance 
further states that the Department strongly believes that a teacher 
with less than one year of teaching experience is ``new'' to the 
profession (see Question A-6). (The guidance is available at 
http://www.ed.gov/programs/teacherqual/guidance.doc
). This guidance is 

applicable to determinations of when a person is new or not new to the 
profession under section 602(10)(C) and (D)(ii) of the Act and Sec.  
300.18(c) and (d)(2).
    Under section 602(10)(D)(iii) of the Act, and reflected in Sec.  
300.18(d)(3), there is additional flexibility for ``a new special 
education teacher'' who is teaching multiple subjects and is highly 
qualified in mathematics, language arts, or science, to demonstrate 
competence in the other core academic subjects in which the teacher 
teaches in the same manner as is required for an elementary, middle, or 
secondary school teacher who is not new to the profession, which may 
include a single, high objective uniform State standard of evaluation 
covering multiple subjects, not later than 2 years after the date of 
employment. The phrase ``2 years after the date of employment'' in 
section

[[Page 46561]]

602(10)(D)(iii) of the Act is interpreted to mean 2 years after 
employment as a special education teacher.
    For purposes of this provision, we consider it appropriate to 
consider a fully certified regular education teacher who subsequently 
becomes fully certified or licensed as a special education teacher to 
be considered a ``new special education teacher'' when they are first 
hired as a special education teacher. We will add language to new Sec.  
300.18(g) (proposed Sec.  300.18(f)) to make this clear.
    Changes: We have restructured Sec.  300.18(g) (proposed Sec.  
300.18(f)) and added a new paragraph (g)(2) to permit a fully certified 
regular education teacher who subsequently becomes fully certified or 
licensed as a special education teacher to be considered a new special 
education teacher when first hired as a special education teacher.
    Comment: Some commenters recommended that the regulations clarify 
how co-teaching fits with the highly qualified special education 
teacher requirements. A few commenters stated that a special education 
teacher should be considered a highly qualified teacher if co-teaching 
with a highly qualified general education teacher. One commenter stated 
that co-teaching will encourage districts to work toward more inclusive 
settings for children with disabilities while also ensuring that 
teachers with appropriate qualifications are in the classroom. One 
commenter supported co-teaching as a method for special education 
teachers to learn core content knowledge and be supported by the 
general education teacher. One teacher recommended that a highly 
qualified general education teacher supervise teachers who do not meet 
the highly qualified special education teacher requirements.
    Discussion: The term ``co-teaching'' has many different meanings 
depending on the context in which it is used. Whether and how co-
teaching is implemented is a matter that is best left to State and 
local officials' discretion. Therefore, we decline to include language 
regarding co-teaching in these regulations. Regardless of whether co-
teaching models are used, States and LEAs must ensure that teachers 
meet the highly qualified teacher requirements in 34 CFR 200.56 and 
section 9101(23) of the ESEA and the highly qualified special education 
teacher requirements in Sec.  300.18 and section 602(10) of the Act, as 
well as the personnel requirements in Sec.  300.156 and section 
612(a)(14) of the Act.
    Changes: None.
    Comment: One commenter recommended requiring schools to post the 
credentials of educational personnel in a place with public access, and 
to include in the procedural safeguards notice a parent's right to 
request the credentials of any teacher who supports the child in an 
educational environment. Another commenter stated that parents should 
have access to records documenting the type of supervision that is 
being provided when a teacher or other service provider is under the 
supervision of a highly qualified teacher. One commenter stated that 
the ESEA requires districts to provide parents with information about 
the personnel qualifications of their child's classroom teachers and 
asked whether this requirement applies to special education teachers.
    Discussion: There is nothing in the Act that authorizes the 
Department to require schools to publicly post the credentials of 
educational personnel or to provide parents with information about the 
qualification of their child's teachers and other service providers. 
Section 615 of the Act describes the guaranteed procedural safeguards 
afforded to children with disabilities and their parents under the Act 
but does not address whether parents can request information about the 
qualifications of teachers and other service providers.
    However, section 1111(h)(6) of the ESEA requires LEAs to inform 
parents about the quality of a school's teachers in title I schools. 
The ESEA requires that at the beginning of each school year, an LEA 
that accepts title I, part A funding must notify parents of children in 
title I schools that they can request information regarding their 
child's classroom teachers, including, at a minimum: (1) Whether the 
teacher has met the State requirements for licensure and certification 
for the grade levels and subject matters in which the teacher provides 
instruction; (2) whether the teacher is teaching under emergency or 
other provisional status through which State qualification or licensing 
criteria have been waived; (3) the college major and any other graduate 
certification or degree held by the teacher, and the field of 
discipline of the certification or degree; and (4) whether the child is 
provided services by paraprofessionals, and if so, their 
qualifications. In addition, each title I school must provide parents 
with timely notice that the parent's child has been assigned, or has 
been taught for four or more consecutive weeks by, a teacher who is not 
highly qualified. These requirements apply only to those special 
education teachers who teach core academic subjects in title I schools.
    Changes: None.
Rule of Construction (New Sec.  300.18(f)) (Proposed Sec.  300.18(e))
    Comment: A number of commenters stated that the rule of 
construction in new Sec.  300.18(f) (proposed Sec.  300.18(e)) and 
Sec.  300.156(e) should use the same language. One commenter stated 
that in order to prevent confusion, the right of action limitations 
regarding highly qualified teachers in new Sec.  300.18(f) (proposed 
Sec.  300.18(e)) and personnel qualifications in Sec.  300.156(e) 
should use consistent language regarding individual and class actions, 
and clearly underscore that the limitations are applicable to both 
administrative and judicial actions. One commenter recommended 
reiterating the language from section 612(a)(14)(D) of the Act that 
nothing prevents a parent from filing a State complaint about staff 
qualifications. Another commenter expressed concern because new Sec.  
300.18(f) (proposed Sec.  300.18(e)) and Sec.  300.156(e) may be 
construed to prevent due process hearings when an LEA or SEA fails to 
provide a highly qualified teacher.
    Discussion: We agree that the rule of construction in new Sec.  
300.18(f) (proposed Sec.  300.18(e)) and Sec.  300.156(e) should be the 
same. We will change the regulations to clarify that a parent or 
student may not file a due process complaint on behalf of a student, or 
file a judicial action on behalf of a class of students for the failure 
of a particular SEA or LEA employee to be highly qualified; however, a 
parent may file a complaint about staff qualifications with the SEA. In 
addition to permitting a parent to file a complaint with the SEA, an 
organization or an individual may also file a complaint about staff 
qualifications with the SEA, consistent with the State complaint 
procedures in Sec. Sec.  300.151 through 300.153.
    Changes: We have added ``or to prevent a parent from filing a 
complaint about staff qualifications with the SEA as provided for under 
this part'' in new Sec.  300.18(f) (proposed Sec.  300.18(e)).
    Comment: Several commenters recommended that the regulations 
specify that the failure of an SEA or LEA to provide a child with a 
disability a highly qualified teacher can be a consideration in the 
determination of whether a child received FAPE, if the child is not 
learning the core content standards or not meeting IEP goals. However, 
a few commenters recommended that the regulations clarify that it is 
not a denial of FAPE if a special education teacher is not highly 
qualified.

[[Page 46562]]

    Discussion: If the only reason a parent believes their child was 
denied FAPE is that the child did not have a highly qualified teacher, 
the parent would have no right of action under the Act on that basis. 
The rules of construction in new Sec.  300.18(f) (proposed Sec.  
300.18(e)) and Sec.  300.156(e) do not allow a parent or student to 
file a due process complaint for failure of an LEA or SEA to provide a 
highly qualified teacher.
    Changes: None.
    Comment: One commenter expressed concern with the rule of 
construction in new Sec.  300.18(f) (proposed Sec.  300.18(e)) because 
there are no requirements to develop a specific enforcement system to 
ensure that teachers meet the highly qualified standard. A few 
commenters recommended changing the rule of construction so that States 
meet their supervisory responsibilities under the Act if LEAs in the 
State are sanctioned under the ESEA for not having highly qualified 
teachers.
    Some commenters recommended clarifying that when the SEA or LEA 
employs an individual who is not highly qualified, States meet their 
responsibilities for general supervision under the Act through the 
notice and other sanction procedures identified under the ESEA.
    One commenter stated that the regulations are silent with regard to 
SEA actions when meeting the general supervision requirements under the 
Act, and noted that unless the regulations are expanded to clarify that 
SEA enforcement procedures under compliance monitoring are limited to 
ESEA enforcement procedures, the highly qualified teacher requirements 
of an individual teacher may inappropriately become the target for a 
finding of noncompliance. This commenter further stated that the ESEA 
contains specific procedures for failure of a district to comply with 
the highly qualified teacher provisions, and if the SEA also exercises 
sanctioning authority under the Act, schools could be punished twice 
under two separate provisions of Federal law for the same infraction. 
The commenter recommended that to avoid double jeopardy the regulations 
should clarify that the ESEA enforcement procedures for a district's 
failure to hire a highly qualified teacher follow the provisions of the 
ESEA, not the Act.
    Discussion: The implementation and enforcement of the highly 
qualified teacher standards under the ESEA and the Act complement each 
other. The Office of Elementary and Secondary Education (OESE) 
currently monitors the implementation of the highly qualified teacher 
standards for teachers of core academic subjects under the ESEA. This 
includes special education teachers who teach core academic subjects.
    The Office of Special Education programs (OSEP) collects data about 
special education personnel qualifications and requires that SEAs 
establish and maintain qualifications to ensure that personnel 
essential to carrying out the purposes of Part B of the Act are 
appropriately and adequately prepared and trained. Those personnel must 
also have the content knowledge and skills to serve children with 
disabilities, consistent with Sec.  300.156.
    OESE and OSEP will share their data to ensure that the highly 
qualified teacher requirements under the ESEA and the Act are met. This 
sharing of information will also prevent schools from being punished 
twice for the same infraction.
    Changes: None.
Teachers Hired by Private Elementary and Secondary Schools (New Sec.  
300.18(h)) (Proposed Sec.  300.18(g))
    Comment: Some commenters agreed with new Sec.  300.18(h) (proposed 
Sec.  300.18(g)), which states that the highly qualified special 
education teacher requirements do not apply to teachers hired by 
private elementary schools and secondary schools. However, many 
commenters disagreed, stating that children placed by an LEA in a 
private school are entitled to receive the same high quality 
instruction as special education children in public schools. A few 
commenters stated that LEAs will place children in private schools to 
avoid hiring highly qualified teachers. Some commenters stated that 
public funds should not be used for any school that is not held to the 
same high standards as public schools. Other commenters stated that 
children with the most significant disabilities who are placed in 
private schools are children with the most need for highly qualified 
teachers. A few commenters stated that this provision is contrary to 
the intent of the ESEA and the Act to support the educational 
achievement of children with disabilities. Other commenters stated that 
if instruction by a highly qualified teacher is a hallmark of FAPE, it 
should be an element of FAPE in any educational setting in which the 
child is enrolled by a public agency.
    A few commenters recommended that States have the discretion to 
determine whether and to what extent the highly qualified teacher 
requirements apply to teachers who teach publicly-placed and 
parentally-placed children with disabilities. The commenters stated 
that the SEA is in the best position to weigh the needs of private 
school children for highly qualified teachers and to assess what effect 
these requirements would have on the shortage of special education 
teachers in the State. One commenter asked whether the highly qualified 
teacher requirements apply to providers in private residential 
treatment centers where children with disabilities are placed to 
receive FAPE.
    Discussion: New Sec.  300.18(h) (proposed Sec.  300.18(g)) 
accurately reflects the Department's position that the highly qualified 
special education teacher requirements do not apply to teachers hired 
by private elementary schools and secondary schools. This includes 
teachers hired by private elementary schools and secondary schools who 
teach children with disabilities. Consistent with this position and in 
light of comments received regarding the requirements for private 
school teachers providing equitable services for parentally-placed 
private school children with disabilities under Sec.  300.138, we will 
add language to new Sec.  300.18(h) (proposed Sec.  300.18(g)) to 
clarify that the highly qualified special education teacher 
requirements also do not apply to private school teachers who provide 
equitable services to parentally-placed private school children with 
disabilities under Sec.  300.138.
    Changes: We have added language in new Sec.  300.18(h) (proposed 
Sec.  300.18(g)) to clarify that the highly qualified special education 
teacher requirements also do not apply to private school teachers who 
provide equitable services to parentally-placed private school children 
with disabilities under Sec.  300.138.
Homeless Children (Sec.  300.19)
    Comment: Several commenters requested adding the definition of 
homeless children in the regulations so that it is readily accessible 
to parents, advocates, and educators.
    Discussion: The term homeless children is defined in the McKinney-
Vento Homeless Assistance Act. For the reasons set forth earlier in 
this notice, we are not adding the definitions of other statutes to 
these regulations. However, we will include the current definition of 
homeless children in section 725 (42 U.S.C. 11434a) of the McKinney-
Vento Homeless Assistance Act, as amended, 42 U.S.C. 11431 et seq. 
(McKinney-Vento Act) here for reference.
    The term homeless children and youths--
    (A) means individuals who lack a fixed, regular, and adequate 
nighttime

[[Page 46563]]

residence (within the meaning of section 103(a)(1)); and
    (B) includes--
    (i) children and youths who are sharing the housing of other 
persons due to loss of housing, economic hardship, or a similar reason; 
are living in motels, hotels, trailer parks, or camping grounds due to 
the lack of alternative adequate accommodations; are living in 
emergency or transitional shelters; are abandoned in hospitals; or are 
awaiting foster care placement;
    (ii) children and youths who have a primary nighttime residence 
that is a public or private place not designed for or ordinarily used 
as a regular sleeping accommodation for human beings (within the 
meaning of section 103(a)(2)(C));
    (iii) children and youths who are living in cars, parks, public 
spaces, abandoned buildings, substandard housing, bus or train 
stations, or similar settings; and
    (iv) migratory children (as such term is defined in section 1309 of 
the Elementary and Secondary Education Act of 1965) who qualify as 
homeless for the purposes of this subtitle because the children are 
living in circumstances described in clauses (i) through (iii).
    Changes: None.
    Comment: One commenter stated that regulations are needed to 
address school selection and enrollment provisions under the McKinney-
Vento Act. Another commenter recommended that the regulations include 
the McKinney-Vento Act's requirement that school stability for homeless 
children be maintained during periods of residential mobility and that 
homeless children enrolled in new schools have the ability to 
immediately attend classes and participate in school activities.
    Discussion: We appreciate the commenters' concerns, but do not 
believe it is necessary to duplicate the requirements of the McKinney-
Vento Act in these regulations. We believe that these issues, as well 
as other issues regarding children with disabilities who are homeless, 
would be more appropriately addressed in non-regulatory guidance, in 
which more detailed information and guidance can be provided on how to 
implement the requirements of the Act and the McKinney-Vento Act to 
best meet the needs of homeless children with disabilities. We will 
work with the Office of Elementary and Secondary Education to provide 
guidance and disseminate information to special education teachers and 
administrators regarding their responsibilities for serving children 
with disabilities who are homeless.
    Changes: None.
Indian and Indian Tribe (Sec.  300.21)
    Comment: One commenter expressed support for combining and moving 
the definition of Indian and Indian tribe from current Sec.  300.264 to 
the definitions section of these regulations because the term is 
applicable in instances not related to BIA schools. However, another 
commenter stated that the definition was unnecessary because the 
purpose of the Act is to ensure that every child has FAPE.
    Discussion: The definitions of Indian and Indian tribe are included 
in sections 602(12) and (13) of the Act, respectively, and are, 
therefore, included in subpart A of these regulations. Subpart A 
includes definitions for those terms and phrases about which we are 
frequently asked and which we believe will assist SEAs and LEAs in 
implementing the requirements of the Act. Including the definitions of 
Indian and Indian tribe in the definitions section does not in any way 
affect the provision of FAPE to all eligible children under the Act.
    Changes: None.
    Comment: One commenter requested omitting ``State Indian tribes'' 
that are not also federally-recognized tribes from the definition of 
Indian and Indian tribe stating that Federal recognition of an Indian 
tribe should be a predicate for the tribe's eligibility for Federal 
programs and services. One commenter expressed concern that including 
``State Indian tribes'' in the definition could imply that the 
Secretary of the Interior is responsible for providing special 
education and related services or funding to all State Indian tribes.
    Discussion: Section 602(13) of the Act and Sec.  300.21(b) define 
Indian tribe as ``any Federal or State Indian tribe'' and do not 
exclude State Indian tribes that are not federally-recognized tribes. 
We will add a new paragraph (c) to Sec.  300.21 clarifying that the 
definition of Indian and Indian tribe is not intended to indicate that 
the Secretary of Interior is required to provide services or funding to 
a State Indian tribe that is not listed in the Federal Register list of 
Indian entities recognized as eligible to receive services from the 
United States, published pursuant to Section 104 of the Federally 
Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a-1.
    Changes: A new paragraph (c) has been added to Sec.  300.21 to 
provide this clarification.
    Comment: One commenter stated that it was unclear how many States 
have defined Indian tribes that are not defined by the Federal 
government and asked what the effect would be on the provision of 
services by including State Indian tribes in the definition. Another 
commenter stated that including State Indian tribes in the definition 
of Indian and Indian tribe implies that children of State-recognized 
tribes are considered differently than other children.
    Discussion: As noted in the discussion responding to the previous 
comment, the list of Indian entities recognized as eligible to receive 
services from the United States is published in the Federal Register, 
pursuant to Section 104 of the Federally Recognized Indian Tribe List 
Act of 1994, 25 U.S.C. 479a-1. The Federal government does not maintain 
a list of other State Indian tribes. Including State Indian tribes that 
are not federally recognized in the definition does not affect who is 
responsible under the Act for the provision of services to children 
with disabilities who are members of State Indian tribes. Under section 
611(h)(1) of the Act, the Secretary of the Interior is responsible for 
providing special education and related services to children age 5 
through 21 with disabilities on reservations who are enrolled in 
elementary schools and secondary schools for Indian children operated 
or funded by the Secretary of the Interior. With respect to all other 
children aged 3 through 21 on reservations, the SEA of the State in 
which the reservation is located is responsible for ensuring that all 
the requirements of Part B of the Act are implemented.
    Changes: None.
Individualized Family Service Plan (Sec.  300.24)
    Comment: A few commenters recommended including the entire 
definition of individualized family service plan in the regulations so 
that parents and school personnel do not have to shift back and forth 
between documents.
    Discussion: Adding the entire definition of individualized family 
service plan in section 636 of the Act, which includes information 
related to assessment and program development; periodic review; 
promptness after assessment; content of the plan; and parental consent, 
would unnecessarily add to the length of the regulations. However, the 
required content of the IFSP in section 636(d) of the Act is added here 
for reference.
    The individualized family service plan shall be in writing and 
contain--
    (1) A statement of the infant's or toddler's present levels of 
physical development, cognitive development, communication development, 
social or emotional development, and adaptive

[[Page 46564]]

development, based on objective criteria;
    (2) a statement of the family's resources, priorities, and concerns 
relating to enhancing the development of the family's infant or toddler 
with a disability;
    (3) a statement of the measurable results or outcomes expected to 
be achieved for the infant or toddler and the family, including pre-
literacy and language skills, as developmentally appropriate for the 
child, and the criteria, procedures, and timelines used to determine 
the degree to which progress toward achieving the results or outcomes 
is being made and whether modifications or revisions of the results or 
outcomes or services are necessary;
    (4) a statement of specific early intervention services based on 
peer-reviewed research, to the extent practicable, necessary to meet 
the unique needs of the infant or toddler and the family, including the 
frequency, intensity, and method of delivering services;
    (5) a statement of the natural environments in which early 
intervention services will appropriately be provided, including a 
justification of the extent, if any, to which the services will not be 
provided in a natural environment;
    (6) the projected dates for initiation of services and the 
anticipated length, duration, and frequency of the services;
    (7) the identification of the service coordinator from the 
profession most immediately relevant to the infant's or toddler's or 
family's needs (or who is otherwise qualified to carry out all 
applicable responsibilities under this part) who will be responsible 
for the implementation of the plan and coordination with other agencies 
and persons, including transition services; and
    (8) the steps to be taken to support the transition of the toddler 
with a disability to preschool or other appropriate services.
    Changes: None.
Infant or Toddler With a Disability (Sec.  300.25)
    Comment: A few commenters recommended including the entire 
definition of infant or toddler with a disability in the regulations so 
that parents and school personnel do not have to shift back and forth 
between documents.
    Discussion: We agree with the commenters and, therefore, will 
include the definition of infant or toddler with a disability from 
section 632(5) of the Act in these regulations for reference.
    Changes: Section 300.25 has been revised to include the entire 
definition of infant or toddler with a disability from section 632(5) 
of the Act.
Institution of Higher Education (Sec.  300.26)
    Comment: One commenter recommended including the definition of 
institution of higher education in these regulations.
    Discussion: The term institution of higher education is defined in 
section 101 of the Higher Education Act of 1965, as amended, 20 U.S.C. 
1021 et seq. (HEA). For the reasons set forth earlier in this notice, 
we are not adding definitions from other statutes to these regulations. 
However, we are including the current definition here for reference.
    (a) Institution of higher education--For purposes of this Act, 
other than title IV, the term institution of higher education means an 
educational institution in any State that--
    (1) Admits as regular students only persons having a certificate of 
graduation from a school providing secondary education, or the 
recognized equivalent of such a certificate;
    (2) is legally authorized within such State to provide a program of 
education beyond secondary education;
    (3) provides an educational program for which the institution 
awards a bachelor's degree or provides not less than a 2-year program 
that is acceptable for full credit toward such a degree;
    (4) is a public or other nonprofit institution; and
    (5) is accredited by a nationally recognized accrediting agency or 
association, or if not so accredited, is an institution that has been 
granted preaccreditation status by such an agency or association that 
has been recognized by the Secretary for the granting of 
preaccreditation status, and the Secretary has determined that there is 
satisfactory assurance that the institution will meet the accreditation 
standards of such an agency or association within a reasonable time.
    (b) Additional Institutions Included--For purposes of this Act, 
other than title IV, the term institution of higher education also 
includes--
    (1) Any school that provides not less than a 1-year program of 
training to prepare students for gainful employment in a recognized 
occupation and that meets the provision of paragraphs (1), (2), (4), 
and (5) of subsection (a); and
    (2) a public or nonprofit private educational institution in any 
State that, in lieu of the requirement in subsection (a)(1), admits as 
regular students persons who are beyond the age of compulsory school 
attendance in the State in which the institution is located.
    Changes: None.
    Comment: One commenter requested that we add language to the 
regulations that would allow Haskell and Sipi, postsecondary programs 
under the Haskell Indian Nations University and Southwestern Indian 
Polytechnic Institute Administrative Act of 1988, 25 U.S.C. 3731 et 
seq., to be included in the definition of institution of higher 
education.
    Discussion: The Haskell and Sipi postsecondary programs under the 
Haskell Indian Nations University and Southwestern Indian Polytechnic 
Institute Administrative Act of 1988, 25 U.S.C. 3731 et seq. meet the 
statutory definition of institution of higher education in section 
602(17) of the Act because they meet the definition of the term in 
section 101 of the HEA. The Act does not include specific institutions 
in the definition of institution of higher education, nor do we believe 
it is necessary to add specific institutions to the definition in Sec.  
300.26.
    Changes: None.
Limited English Proficient (Sec.  300.27)
    Comment: One commenter requested specific information about 
bilingual qualified personnel and qualified interpreters. Some 
commenters recommended including the definition of ``limited English 
proficient'' in the regulations.
    Discussion: Each State is responsible for determining the 
qualifications of bilingual personnel and interpreters for children 
with limited English proficiency.
    The term limited English proficient is defined in the ESEA. For the 
reasons set forth earlier in this notice, we are not adding the 
definitions from other statutes to these regulations. However, we will 
include the current definition in section 9101(25) of the ESEA here for 
reference.
    The term limited English proficient when used with respect to an 
individual, means an individual--
    (A) Who is aged 3 through 21;
    (B) Who is enrolled or preparing to enroll in an elementary school 
or secondary school;
    (C)(i) who was not born in the United States or whose native 
language is a language other than English;
    (ii)(I) who is a Native American or Alaska Native, or a native 
resident of the outlying areas; and
    (II) who comes from an environment where a language other than 
English has had a significant impact on the individual's level of 
English language proficiency; or

[[Page 46565]]

    (iii) who is migratory, whose native language is a language other 
than English, and who comes from an environment where a language other 
than English is dominant; and
    (D) whose difficulties in speaking, reading, writing, or 
understanding the English language may be sufficient to deny the 
individual--
    (i) the ability to meet the State's proficient level of achievement 
on State assessments described in section 1111(b)(3);
    (ii) the ability to successfully achieve in classrooms where the 
language of instruction is English; or
    (iii) the opportunity to participate fully in society.
    Changes: None.
Local Educational Agency (Sec.  300.28)
    Comment: One commenter suggested revising Sec.  300.28 to ensure 
that all responsibilities and rights attributed to an LEA apply to an 
ESA.
    Discussion: We believe that the provisions in Sec.  300.12 and 
Sec.  300.28 are clear that ESAs have full responsibilities and rights 
as LEAs. We, therefore, decline to revise Sec.  300.28.
    Changes: None.
    Comment: None.
    Discussion: Through its review of charter schools' access to 
Federal funding, it has come to the Department's attention that 
additional guidance is needed regarding whether charter schools that 
are established as their own LEAs must be nonprofit entities in order 
to meet the definition of LEA in Sec.  300.28. The definition of LEA in 
Sec.  300.28(b)(2) specifically includes a public charter school that 
is established as an LEA under State law and that exercises 
administrative control or direction of, or performs a service function 
for, itself. For purposes of the Act, the definitions of charter 
school, elementary school, and secondary school in Sec. Sec.  300.7, 
300.13, and 300.36, respectively, require that a public elementary or 
secondary charter school be a nonprofit entity. Therefore, a public 
elementary or secondary charter school established as its own LEA under 
State law, also must be a nonprofit entity. Although these regulations 
do not specifically define nonprofit, the definition in 34 CFR Sec.  
77.1 applies to these regulations. In order to eliminate any confusion 
on this issue, we will revise the definition of LEA to reflect that a 
public elementary or secondary charter school that is established as 
its own LEA under State law must be a nonprofit entity.
    Changes: For clarity, we have revised Sec.  300.28(b)(2) by 
inserting the term ``nonprofit'' before ``charter school that is 
established as an LEA under State law.''
    Comment: One commenter stated that Sec.  300.28(c) is in error from 
a technical drafting perspective because it does not follow the 
statutory language in section 602(19)(C) of the Act. The commenter also 
suggested adding a definition of ``BIA funded school,'' rather than 
adding a new definition of LEA related to BIA funded schools.
    Discussion: We agree that Sec.  300.28(c) does not accurately 
reflect the statutory language in section 602(19)(C) of the Act and, as 
written, could be interpreted as defining BIA funded schools. This was 
not our intent. Rather, the intent was to include ``BIA funded 
schools'' in the definition of LEA, consistent with section 602(19)(C) 
of the Act.
    In order to correct the technical drafting error, we will change 
Sec.  300.28(c) to accurately reflect section 602(19)(C) of the Act. We 
decline to add a definition of ``BIA funded schools.'' The Act does not 
define this term and the Department does not believe that it is 
necessary to define the term.
    Changes: In order to correct a technical drafting error, Sec.  
300.28(c) has been revised to be consistent with statutory language.
Native Language (Sec.  300.29)
    Comment: A few commenters expressed support for retaining the 
definition of native language, stating that it is important to clarify 
that sign language is the native language of many children who are 
deaf. One commenter stated it is important to clarify that the language 
normally used by the child may be different than the language normally 
used by the parents. Another commenter stated that the definition of 
native language does not adequately cover individuals with unique 
language and communication techniques such as deafness or blindness or 
children with no written language.
    Discussion: The definition of native language was expanded in the 
1999 regulations to ensure that the full range of needs of children 
with disabilities whose native language is other than English is 
appropriately addressed. The definition clarifies that in all direct 
contact with the child (including an evaluation of the child), native 
language means the language normally used by the child and not that of 
the parents, if there is a difference between the two. The definition 
also clarifies that for individuals with deafness or blindness, or for 
individuals with no written language, the native language is the mode 
of communication that is normally used by the individual (such as sign 
language, Braille, or oral communication). We believe this language 
adequately addresses the commenters' concerns.
    Changes: None.
Parent (Sec.  300.30)
    Comment: Several commenters objected to the term ``natural parent'' 
in the definition of parent because ``natural parent'' presumes there 
are ``unnatural parents.'' The commenters recommended using ``birth 
parent'' or ``biological parent'' throughout the regulations.
    Discussion: We understand that many people find the term ``natural 
parent'' offensive. We will, therefore, use the term ``biological 
parent'' to refer to a non-adoptive parent.
    Changes: We have replaced the term ``natural parent'' with 
``biological parent'' in the definition of parent and throughout these 
regulations.
    Comment: A significant number of commenters recommended retaining 
the language in current Sec.  300.20(b), which states that a foster 
parent can act as a parent if the biological parent's authority to make 
educational decisions on the child's behalf have been extinguished 
under State law, and the foster parent has an ongoing, long-term 
parental relationship with the child; is willing to make the 
educational decisions required of parents under the Act; and has no 
interest that would conflict with the interest of the child.
    A few commenters stated that current Sec.  300.20(b) better 
protects children's interests and should not be removed. Another 
commenter stated that removing current Sec.  300.20 will have 
unintended consequences for the many foster children who move 
frequently to new homes because there will be confusion as to who has 
parental rights under the Act. A few commenters stated that short-term 
foster parents may not have the knowledge of the child or the 
willingness to actively participate in the special education process, 
which will effectively leave the child without a parent.
    One commenter stated that Sec.  300.30 needs to be changed to 
protect biological and adoptive parents from arbitrary decisions by 
educational officials who lack the legal authority to make educational 
decisions for the child and to ensure that when no biological or 
adoptive parent is available, a person with a long-term relationship 
with, and commitment to, the child has decision-making authority.
    Discussion: Congress changed the definition of parent in the Act. 
The definition of parent in these regulations reflects the revised 
statutory definition of parent in section 602(23) of the Act.

[[Page 46566]]

The Department understands the concerns expressed by the commenters, 
but believes that the changes requested would not be consistent with 
the intent of the statutory changes. In changing the definition of 
parent in the Act, Congress incorporated some of the wording from the 
current regulations and did not incorporate in the new definition of 
parent, the current foster parent language referenced by the 
commenters.
    Changes: None.
    Comment: One commenter recommended allowing a foster parent who 
does not have a long-term relationship to be the parent, if a court, 
after notifying all interested parties, determines that it is in the 
best interest of the child.
    Discussion: Section 300.30(b)(2) clearly states that if a person is 
specified in a judicial order or decree to act as the parent for 
purposes of Sec.  300.30, that person would be considered the parent 
under Part B of the Act.
    Changes: None.
    Comment: One commenter stated that Sec.  300.30(a)(2) withdraws the 
rights of biological parents under the Act without due process of law.
    Discussion: We do not agree with the commenter. If more than one 
person is attempting to act as a parent, Sec.  300.30(b)(1) provides 
that the biological or adoptive parent is presumed to be the parent if 
that person is attempting to act as the parent under Sec.  300.30, 
unless the biological or adoptive parent does not have legal authority 
to make educational decisions for the child, or there is a judicial 
order or decree specifying some other person to act as a parent under 
Part B of the Act. We do not believe that provisions regarding lack of 
legal authority or judicial orders or decrees would apply unless there 
has already been a determination, through appropriate legal processes, 
that the biological parent should not make educational decisions for 
the child or that another person has been ordered to serve as the 
parent.
    Changes: None.
    Comment: One commenter stated that Sec.  300.30(a)(2) is unwieldy 
and difficult to implement because it requires extensive fact finding 
by the LEA to determine whether any contractual obligations would 
prohibit the foster parent from acting as a parent.
    Discussion: The statutory language concerning the definition of 
parent was changed to permit foster parents to be considered a child's 
parent, unless State law prohibits a foster parent from serving as a 
parent. The language in the regulations also recognizes that similar 
restrictions may exist in State regulations or in contractual 
agreements between a State or local entity and a foster parent, and 
should be accorded similar deference. We believe it is essential for 
LEAs to have knowledge of State laws, regulations, and any contractual 
agreements between a State or local entity and a foster parent to 
ensure that the requirements in Sec.  300.30(a)(2) are properly 
implemented. States and LEAs should develop procedures to make this 
information more readily and easily available so that LEAs do not have 
to engage in extensive fact finding each time a child with a foster 
parent enrolls in a school.
    Changes: None.
    Comment: One commenter stated that the regulations need to clarify 
that guardians ad litem do not meet the definition of a parent except 
for wards of the State where consent for the initial evaluation has 
been given by an individual appointed by the judge to represent the 
child in the educational decisions concerning the child.
    Discussion: We agree that guardians with limited appointments that 
do not qualify them to act as a parent of the child generally, or do 
not authorize them to make educational decisions for the child, should 
not be considered to be a parent within the meaning of these 
regulations. What is important is the legal authority granted to 
individuals appointed by a court, and not the term used to identify 
them. Whether a person appointed as a guardian ad litem has the 
requisite authority to be considered a parent under this section 
depends on State law and the nature of the person's appointment. We 
will revise Sec.  300.30(a)(3) to clarify that a guardian must be 
authorized to act as the child's parent generally or must be authorized 
to make educational decisions for the child in order to fall within the 
definition of parent.
    Changes: We have added language in Sec.  300.30(a)(3) to clarify 
when a guardian can be considered a parent under the Act.
    Comment: One commenter requested adding a ``temporary parent'' 
appointed in accordance with sections 615(b)(2) or 639(a)(5) of the Act 
to the definition of parent.
    Discussion: There is nothing in the Act that would prevent a 
temporary surrogate parent from having all the rights of a parent. Note 
89 of the Conf. Rpt., p. 35810, provides that appropriate staff members 
of emergency shelters, transitional shelters, independent living 
programs, and street outreach programs would not be considered to be 
employees of agencies involved in the education or care of 
unaccompanied youth (and thus prohibited from serving as a surrogate 
parent), provided that such a role is temporary until a surrogate 
parent can be appointed who meets the requirements for a surrogate 
parent in Sec.  300.519(d). This provision is included in Sec.  
300.519(f), regarding surrogate parents. Therefore, we do not believe 
it is necessary to add ``temporary parent'' to the definition of parent 
in Sec.  300.30.
    Changes: None.
    Comment: A few commenters stated that the definition of parent is 
confusing, especially in light of the definition of ward of the State 
in new Sec.  300.45 (proposed Sec.  300.44) and the LEA's obligation to 
appoint a surrogate parent. These commenters stated that Sec.  300.30 
should cross-reference the definition of ward of the State in new Sec.  
300.45 (proposed Sec.  300.44) and state that the appointed surrogate 
parent for a child who is a ward of the State is the parent.
    Discussion: Section 615(b)(2) of the Act does not require the 
automatic appointment of a surrogate parent for every child with a 
disability who is a ward of the State. States and LEAs must ensure that 
the rights of these children are protected and that a surrogate parent 
is appointed, if necessary, as provided in Sec.  300.519(b)(1). If a 
child who is a ward of the State already has a person who meets the 
definition of parent in Sec.  300.30, and that person is willing and 
able to assume the responsibilities of a parent under the Act, a 
surrogate parent might not be needed. Accordingly, we do not believe it 
is necessary to make the changes suggested by the commenters.
    Changes: None.
    Comment: One commenter expressed concern that public agencies will 
require biological or adoptive parents to affirmatively assert their 
rights or to take action in order to be presumed to be the parent. The 
commenter requested clarifying in Sec.  300.30(b)(1) that biological or 
adoptive parents do not have to take affirmative steps in order for the 
presumption to apply.
    Discussion: The biological or adoptive parent would be presumed to 
be the parent under these regulations, unless a question was raised 
about their legal authority. There is nothing in the Act that requires 
the biological or adoptive parent to affirmatively assert their rights 
to be presumed to be the parent. We continue to believe that Sec.  
300.30(b)(1) is clear and, therefore, will not make the changes 
requested by the commenters.
    Changes: None.
    Comment: Some commenters recommended removing ``when attempting to 
act as a parent under this

[[Page 46567]]

part'' in Sec.  300.30(b)(1). A few commenters stated that there is no 
explanation of what it means for a biological parent to ``attempt to 
act as a parent.'' Another commenter stated that the regulations do not 
set any guidelines for determining how a public agency decides if a 
biological or adoptive parent is attempting to act as a parent.
    One commenter stated ``attempting to act'' would require LEAs to 
make determinations about a biological parent's decision-making 
authority and this should be left up to courts to determine. One 
commenter stated that the regulations permit multiple persons to act as 
a child's parent and do not adequately set forth a process to determine 
who should be identified as the actual parent for decision-making 
purposes. The commenter further stated that the regulations do not set 
out a procedure or a timeframe by which public agency officials should 
determine if a biological parent has retained the right to make 
educational decisions for his or her child.
    One commenter stated that the definition of parent gives school 
districts excessive power; for example a school could appoint a 
surrogate parent if the foster parent was excessively demanding. The 
commenter further stated that a clearer order of priority and selection 
mechanism with judicial oversight needs to be in place so that school 
districts cannot ``parent shop'' for the least assertive individual, 
and so that relatives, foster parents, social workers, and others 
involved with the child will know who has educational decision making 
authority.
    One commenter questioned whether Sec.  300.30(b) helps identify 
parents or confuses situations in which the person to be designated the 
parent is in dispute. Another commenter stated that the requirements in 
Sec.  300.30(b) place the responsibility of determining who serves as 
the parent of a child in foster care directly on the shoulders of 
school administrators who are not child welfare experts. The commenter 
recommended that a foster parent automatically qualify as a parent when 
the rights of the child's biological parents have been extinguished and 
the foster parent has a long-term relationship with the child, no 
conflict of interest, and is willing to make educational decisions.
    Discussion: Section 300.30(b) was added to assist schools and 
public agencies in determining the appropriate person to serve as the 
parent under Part B of the Act in those difficult situations in which 
more than one individual is ``attempting to act as a parent'' and make 
educational decisions for a child. It recognizes the priority of the 
biological or adoptive parent and the authority of the courts to make 
decisions, and does not leave these decisions to school administrators.
    The phrase ``attempting to act as a parent'' is generally meant to 
refer to situations in which an individual attempts to assume the 
responsibilities of a parent under the Act. An individual may ``attempt 
to act as a parent'' under the Act in many situations; for example, if 
an individual provides consent for an evaluation or reevaluation, or 
attends an IEP Team meeting as the child's parent. We do not believe it 
is necessary or possible to include in these regulations the numerous 
situations in which an individual may ``attempt to act as a parent.''
    Section 300.30(b)(1) provides that the biological or adoptive 
parent is presumed to be the parent if that person is attempting to act 
as the parent under Sec.  300.30, unless the biological or adoptive 
parent does not have legal authority to make educational decisions for 
the child, or there is a judicial order or decree specifying some other 
person to act as a parent under Part B of the Act. Section 300.30(b)(2) 
provides that if a person (or persons) is specified in a judicial order 
or decree to act as the parent for purposes of Sec.  300.30, that 
person would be the parent under Part B of the Act. We do not believe 
that it is necessary for these regulations to establish procedures or a 
timeline for a public agency to determine whether a biological parent 
has retained the right to make educational decisions for a child. Such 
procedures and timelines will vary depending on how judicial orders or 
decrees are routinely handled in a State or locality, and are best left 
to State and local officials to determine.
    Changes: None.
    Comment: A few commenters recommended modifying Sec.  300.30(b)(2) 
to clarify that a court has the discretion to decide who has the right 
to make educational decisions for a child. One commenter recommended 
clarifying that the judicial decree referred to in Sec.  300.30(b)(2) 
relates specifically to divorce situations, rather than situations 
involving children who are wards of the State. Another commenter stated 
that Sec.  300.30(b)(2) appears to be aimed at situations where the 
court has designated a parent, such as in a custody decree, and that it 
is not clear what the provision adds.
    Discussion: Section 300.30(b)(2) specifically states that if a 
judicial decree or order identifies a person or persons to act as the 
parent of a child or to make educational decisions on behalf of a 
child, then that person would be determined to be the parent. It was 
intended to add clarity about who would be designated a parent when 
there are competing individuals under Sec.  300.30(a)(1) through (4) 
who could be considered a parent for purposes of this part. It is not 
necessary to specify or limit this language to provide that the 
judicial decree or order applies to specific situations, such as 
divorce or custody cases. However, it should not authorize courts to 
appoint individuals other than those identified in Sec.  300.30(a)(1) 
through (4) to act as parents under this part. Specific authority for 
court appointment of individuals to provide consent for initial 
evaluations in limited circumstances is in Sec.  300.300(a)(2)(c). 
Authority for court appointment of a surrogate parent in certain 
situations is in Sec.  300.519(c).
    Changes: We have revised Sec.  300.30(b)(2) to limit its 
application to individuals identified under Sec.  300.30(a)(1) through 
(4) and have deleted the phrase ``except that a public agency that 
provides education or care for the child may not act as the parent'' as 
unnecessary.
    Comment: One commenter recommended allowing foster parents to act 
as parents only when the birth parent's rights have been extinguished 
or terminated. A few commenters requested that the regulations clarify 
the circumstances under which a foster parent can take over educational 
decision making. One commenter stated that allowing a foster parent to 
act as a parent would disrupt the special education process.
    Discussion: Under Sec.  300.30(a)(2), a foster parent can be 
considered a parent, unless State law, regulations, or contractual 
obligations with a State or local entity prohibit a foster parent from 
acting as a parent. However, in cases where a foster parent and a 
biological or adoptive parent attempt to act as the parent, Sec.  
300.30(b)(1) clarifies that the biological or adoptive parent is 
presumed to be the parent, unless the biological or adoptive parent 
does not have legal authority to make educational decisions for the 
child. Section 300.30(b)(2) further clarifies that if a person or 
persons such as a foster parent or foster parents is specified in a 
judicial order or decree to act as the parent for purposes of Sec.  
300.30, that person would be the parent under Part B of the Act. We do 
not believe that further clarification is necessary.
    Changes: None.
    Comment: A few commenters recommended that ``extinguished under 
State law'' be defined to mean both temporary and permanent termination

[[Page 46568]]

of parental rights to make educational decisions because this would 
allow courts to make more timely decisions regarding the role of a 
parent and not feel bound to wait for a full termination of parental 
rights.
    Discussion: The phrase ``extinguished under State law'' is not used 
in the Act or these regulations. The phrase was used in the definition 
of parent in current Sec.  300.20(b)(1). The comparable provision in 
these regulations is in Sec.  300.30(b)(1), which refers to situations 
in which the ``biological or adoptive parent does not have legal 
authority to make educational decisions for the child.'' We do not 
believe that either of these phrases affects the timeliness of decision 
making by courts regarding parental rights.
    Changes: None.
    Comment: Some commenters stated that ``consistent with State law'' 
should be included in Sec.  300.30(b)(2) in order to honor local laws 
already in place to protect these children.
    Discussion: We do not believe the change recommended by the 
commenters is necessary. Courts issue decrees and orders consistent 
with applicable laws.
    Changes: None.
    Comment: One commenter stated that it would not be wise to 
completely exclude an agency involved in the education or care of the 
child from serving as a parent because situations in which an LEA acts 
as a parent are very rare and only occur under very unusual 
circumstances.
    Discussion: The exclusion of an agency involved in the education or 
care of the child from serving as a parent is consistent with the 
statutory prohibition that applies to surrogate parents in sections 
615(b)(2) and 639(a)(5) of the Act.
    Changes: None.
    Comment: One commenter recommended that the regulations clarify the 
responsibilities of the LEA when a biological or adoptive parent and a 
foster parent attempt to act as the parent. Although the regulations 
state that the biological or adoptive parent must be presumed to be the 
parent unless the biological or adoptive parent has been divested of 
this authority by a court, the commenter stated that the regulations 
are not clear as to whether the LEA has the duty to notify the 
biological or adoptive parent, accommodate his or her schedule, or 
otherwise take steps to facilitate the biological or adoptive parent's 
participation.
    One commenter recommended clarifying the relative rights of a 
biological or adoptive parent and a foster parent when a child is in 
foster care and the foster parent is not prohibited by the State from 
acting as a parent.
    Discussion: Section 300.30(b)(1) states that when more than one 
party is qualified under Sec.  300.30(a) to act as the parent, the 
biological or adoptive parent is presumed to be the parent (unless a 
judicial decree or order identifies a specific person or persons to act 
as the parent of a child). The biological or adoptive parent has all 
the rights and responsibilities of a parent under the Act, and the LEA 
must provide notice to the parent, accommodate his or her schedule when 
arranging meetings, and involve the biological or adoptive parent in 
the education of the child with a disability. Thus, if a child is in 
foster care (and the foster parent is not prohibited by the State from 
acting as a parent) and the biological or adoptive parent is attempting 
to act as a parent, the biological or adoptive parent is presumed to be 
the parent unless the biological or adoptive parent does not have legal 
authority to make educational decisions for the child or a judicial 
decree or order identifies a specific person or persons to act as the 
parent of a child.
    Changes: None.
    Comment: A few commenters stated that it is unclear when or under 
what circumstances a biological or adoptive parent ceases or surrenders 
their rights to a foster parent to make educational decisions for a 
child. One commenter stated that the regulations should define clearly 
the situations when this would occur and the level of proof that must 
be shown by the party seeking to make educational decisions on behalf 
of a child. The commenter stated that only under the most extreme and 
compelling circumstances should a court be able to appoint another 
individual to take the place of a biological or adoptive parent.
    Discussion: It would be inappropriate and beyond the authority of 
the Department to regulate on the termination of parental rights to 
make educational decisions. It is the responsibility of a court to 
decide whether to appoint another person or persons to act as a parent 
of a child or to make educational decisions on behalf of a child.
    Changes: None.
    Comment: One commenter requested clarifying to whom LEAs must 
provide notice, or obtain consent in situations where there are 
disputes between biological or adoptive parents (e.g., when parents 
separate or divorce).
    Discussion: In situations where the parents of a child are 
divorced, the parental rights established by the Act apply to both 
parents, unless a court order or State law specifies otherwise.
    Changes: None.
    Comment: A few commenters recommended clarifying in the regulations 
that a private agency that contracts with a public agency for the 
education or care of the child may not act as a parent.
    Discussion: A private agency that contracts with a public agency 
for the education or care of the child, in essence, works for the 
public agency, and therefore, could not act as a parent under the Act. 
We do not believe it is necessary to regulate on this matter.
    Changes: None.
Parent Training and Information Center (Sec.  300.31)
    Comment: One commenter requested describing a parent training and 
information center (PTI) and a community parent resource center (CPRC) 
in the regulations, rather than referencing section 671 or 672 of the 
Act.
    Discussion: We do not believe it is necessary to include these 
descriptions in the regulations. Section 671 of the Act describes the 
program requirements for a PTI and section 672 of the Act describes the 
program requirements for a CPRC. These sections describe the activities 
required of PTIs and CPRCs, as well as the application process for 
discretionary funding under Part D of the Act, and would unnecessarily 
add to the length of the regulations.
    Changes: None.
    Comment: One commenter stated that, in order for a State or LEA to 
be considered for funding under the Act, the regulations should require 
partnerships with the PTIs and the CPRCs, as well as input from PTIs 
and CPRCs on assessing State and local needs, and developing and 
implementing a plan to address State and local needs.
    Discussion: We disagree with the commenter. There is nothing in the 
Act that requires States or LEAs, as a condition of funding, to obtain 
input from PTIs and CPRCs in assessing needs or developing and 
implementing a plan to address State or local needs. States and LEAs 
are free to do so, but it is not a requirement for funding.
    Changes: None.
Public Agency (Sec.  300.33)
    Comment: One commenter stated that the term public agency is not in 
the Act and noted that no State has created a new type of public 
education agency beyond LEAs and SEAs. The commenter stated that 
including the definition of public agency in the regulations,

[[Page 46569]]

therefore, raises concerns regarding the responsibility and authority 
for future special education services.
    Discussion: The definition of public agency refers to all agencies 
responsible for various activities under the Act. The terms ``LEA'' or 
``SEA'' are used when referring to a subset of public agencies. We 
disagree that the definition raises concerns about the responsibility 
and authority for future educational services because the term public 
agency is used only for those situations in which a particular 
regulation does not apply only to SEAs and LEAs.
    During our internal review of the NPRM, we found several errors in 
the definition of public agency. Our intent was to use the same 
language in current Sec.  300.22. We will, therefore, correct these 
errors to be consistent with current Sec.  300.22. Additionally, we 
will clarify that a charter school must be a nonprofit charter school. 
As noted in the discussion regarding Sec.  300.28(b)(2), we clarified 
that a charter school established as its own LEA under State law, must 
be a nonprofit charter school.
    Changes: We have removed the phrase ``otherwise included as'' the 
second time it appears, and replaced it with ``a school of an'' in 
Sec.  300.33. We have also changed ``LEAs'' to ``LEA'' and ``ESAs'' to 
``ESA'' the third time these abbreviations appear in Sec.  300.33.
Related Services (Sec.  300.34)
Related Services, General (Sec.  300.34(a))
    Comment: One commenter requested defining related services as 
enabling a child with a disability to receive FAPE in the LRE.
    Discussion: The definition of related services is consistent with 
section 601(26) of the Act, which does not refer to LRE. The Department 
believes that revising the regulations as requested would 
inappropriately expand the definition in the Act. Furthermore, the 
regulations in Sec.  300.114(a)(2)(ii) already prevent placement of a 
child outside the regular education environment unless the child cannot 
be satisfactorily educated in the regular education environment with 
the use of supplementary aids and services. Therefore, we see no need 
to make the change suggested by the commenter.
    Changes: None.
    Comment: We received numerous requests to revise Sec.  300.34 to 
add specific services in the definition of related services. A few 
commenters recommended including marriage and family therapy. One 
commenter recommended adding nutrition therapy and another commenter 
recommended adding recreation therapy. A significant number of 
commenters recommended adding art, music, and dance therapy. One 
commenter recommended adding services to ensure that medical devices, 
such as those used for breathing, nutrition, and other bodily 
functions, are working properly. One commenter requested adding 
programming and training for parents and staff as a related service.
    A few commenters requested clarification on whether auditory 
training and aural habilitation are related services. One commenter 
asked whether hippotherapy should be included as a related service. 
Other commenters recommended adding language in the regulations stating 
that the list of related services is not exhaustive. A few commenters 
asked whether a service is prohibited if it is not listed in the 
definition of related services.
    Discussion: Section 300.34(a) and section 602(26) of the Act state 
that related services include other supportive services that are 
required to assist a child with a disability to benefit from special 
education. We believe this clearly conveys that the list of services in 
Sec.  300.34 is not exhaustive and may include other developmental, 
corrective, or supportive services if they are required to assist a 
child with a disability to benefit from special education. It would be 
impractical to list every service that could be a related service, and 
therefore, no additional language will be added to the regulations.
    Consistent with Sec. Sec.  300.320 through 300.328, each child's 
IEP Team, which includes the child's parent along with school 
officials, determines the instruction and services that are needed for 
an individual child to receive FAPE. In all cases concerning related 
services, the IEP Team's determination about appropriate services must 
be reflected in the child's IEP, and those listed services must be 
provided in accordance with the IEP at public expense and at no cost to 
the parents. Nothing in the Act or in the definition of related 
services requires the provision of a related service to a child unless 
the child's IEP Team has determined that the related service is 
required in order for the child to benefit from special education and 
has included that service in the child's IEP.
    Changes: None.
    Comment: One commenter recommended adding behavior interventions to 
the list of related services, stating that while positive behavioral 
interventions and supports are often provided by one of the 
professionals listed in Sec.  300.34(c), other types of specialists 
also often provide them.
    Discussion: The list of related services in Sec.  300.34 is 
consistent with section 602(26) of the Act and, as noted above, we do 
not believe it is necessary to add additional related services to this 
list. We agree with the commenter that there may be many professionals 
in a school district who are involved in the development of positive 
behavioral interventions. Including the development of positive 
behavioral interventions in the description of activities under 
psychological services (Sec.  300.34(b)(10)) and social work services 
in schools (Sec.  300.34(b)(14)) is not intended to imply that school 
psychologists and social workers are automatically qualified to perform 
these services or to prohibit other qualified personnel from providing 
these services, consistent with State requirements.
    Changes: None.
Exception; Services That Apply to Children With Cochlear Implants 
(Sec.  300.34(b))
    Comment: Many commenters opposed the exclusion of surgically 
implanted devices from the definition of related services. Many 
commenters stated that the Act does not exclude the maintenance or 
programming of surgically implanted devices from the definition of 
related services, and that the regulations should specifically state 
that related services includes the provision of mapping services for a 
child with a cochlear implant. A few commenters stated that the issue 
of mapping cochlear implants needs to be clarified so that schools and 
parents understand who is responsible for providing this service. One 
commenter requested that the regulations clearly specify that 
optimization of a cochlear implant is a medical service and define 
mapping as an audiological service.
    Discussion: The term ``mapping'' refers to the optimization of a 
cochlear implant and is not included in the definition of related 
services. Specifically, ``mapping'' and ``optimization'' refer to 
adjusting the electrical stimulation levels provided by the cochlear 
implant that is necessary for long-term post-surgical follow-up of a 
cochlear implant. Although the cochlear implant must be properly mapped 
in order for the child to hear well in school, the mapping does not 
have to be done in school or during the school day in order for it to 
be effective. The exclusion of mapping from the definition of related 
services reflects the language in Senate Report (S. Rpt.) No. 108-185, 
p. 8, which states that the Senate committee did not intend that

[[Page 46570]]

mapping a cochlear implant, or even the costs associated with mapping, 
such as transportation costs and insurance co-payments, be the 
responsibility of a school district. These services and costs are 
incidental to a particular course of treatment chosen by the child's 
parents to maximize the child's functioning, and are not necessary to 
ensure that the child is provided access to education, regardless of 
the child's disability, including maintaining health and safety while 
in school. We will add language in Sec.  300.34(b) to clarify that 
mapping a cochlear implant is an example of device optimization and is 
not a related service under the Act.
    Changes: We have added ``(e.g., mapping)'' following 
``functioning'' in Sec.  300.34(b) to clarify that mapping a surgically 
implanted device is not a related service under the Act.
    Comment: A significant number of commenters stated that children 
with cochlear implants need instruction in listening and language 
skills to process spoken language, just as children with hearing loss 
who use hearing aids, and requested that the regulations clarify that 
excluding the optimization of device functioning from the definition of 
related services does not impact a child's access to related services 
such as speech and language therapy, assistive listening devices, 
appropriate classroom acoustics, auditory training, educational 
interpreters, cued speech transliterators, and specialized instruction.
    One commenter requested that the regulations explicitly state 
whether a public agency is required to provide more speech and language 
services or audiology services to a child with a cochlear implant. 
Another commenter requested that the regulations clarify that 
optimization only refers to access to assistive technology, such as 
assistive listening devices (e.g., personal frequency modulation (FM) 
systems) and monitoring and troubleshooting of the device function that 
is required under proper functioning of hearing aids.
    Discussion: Optimization generally refers to the mapping necessary 
to make the cochlear implant work properly and involves adjusting the 
electrical stimulation levels provided by the cochlear implant. The 
exclusion of mapping as a related service is not intended to deny a 
child with a disability assistive technology (e.g., FM system); proper 
classroom acoustical modifications; educational support services (e.g., 
educational interpreters); or routine checking to determine if the 
external component of a surgically implanted device is turned on and 
working. Neither does the exclusion of mapping as a related service 
preclude a child with a cochlear implant from receiving the related 
services (e.g., speech and language services) that are necessary for 
the child to benefit from special education services. As the commenters 
point out, a child with a cochlear implant may still require related 
services, such as speech and language therapy, to process spoken 
language just as other children with hearing loss who use hearing aids 
may need those services and are entitled to them under the Act if they 
are required for the child to benefit from special education. Each 
child's IEP Team, which includes the child's parent along with school 
officials, determines the related services, and the amount of services, 
that are required for the child to benefit from special education. It 
is important that the regulations clearly state that a child with a 
cochlear implant or other surgically implanted medical device is 
entitled to related services that are determined by the child's IEP 
Team to be necessary for the child to benefit from special education. 
Therefore, we will add language in Sec.  300.34(b) to clarify that a 
child with a cochlear implant or other surgically implanted medical 
device is entitled to those related services that are required for the 
child to benefit from special education, as determined by the child's 
IEP Team.
    Changes: We have reformatted Sec.  300.34(b) and added a new 
paragraph (2) to clarify that a child with a cochlear implant or other 
surgically implanted device is entitled to the related services that 
are determined by the child's IEP Team to be required for the child to 
benefit from special education. We have also added the phrase 
``services that apply to children with surgically implanted devices, 
including cochlear implants' to the heading in Sec.  300.34(b).
    Comment: One commenter expressed concern that excluding the 
optimization of device functioning and maintenance of the device as 
related services will establish different standards for serving 
children with cochlear implants versus children who use hearing aids 
and other external amplification devices, and recommended clarifying 
that routine monitoring of cochlear implants and other surgically 
implanted devices to ensure that they are functioning in a safe and 
effective manner is permitted under the Act.
    A few commenters stated that some schools are interpreting the 
exclusion of device optimization, functioning, and maintenance to mean 
that they do not have to help the child change a battery in the 
externally worn speech processor connected with the surgically 
implanted device, make certain that it is turned on, or help the child 
to learn to listen with the cochlear implant. One commenter stated that 
children with cochlear implants should have the same services as 
children who use a hearing aid when the battery needs changing or 
equipment breaks down.
    One commenter stated that Sec.  300.34(b) is confusing and should 
explicitly state that the exception of the optimization of device 
functioning, maintenance of the device, or replacement of the device is 
limited to surgically implanted devices. The commenter stated that the 
language could erroneously lead to an interpretation that this 
exception is applicable to all medical devices. One commenter expressed 
concern that this misinterpretation could put insulin pumps and other 
medical devices that are required for the health of the child in the 
same category as cochlear implants.
    A few commenters stated that it is important to clarify that 
excluding the optimization of device functioning and the maintenance of 
the device should not be construed to exclude medical devices and 
services that children need to assist with breathing, nutrition, and 
other bodily functions while the child is involved with education and 
other school-related activities.
    One commenter stated that a school nurse, aide, teacher's aide, or 
any other person who is qualified and trained should be allowed to 
monitor and maintain, as necessary, a surgically implanted device.
    Discussion: A cochlear implant is an electronic device surgically 
implanted to stimulate nerve endings in the inner ear (cochlea) in 
order to receive and process sound and speech. The device has two 
parts, one that is surgically implanted and attached to the skull and, 
the second, an externally worn speech processor that attaches to a port 
in the implant. The internal device is intended to be permanent.
    Optimization or ``mapping'' adjusts or fine tunes the electrical 
stimulation levels provided by the cochlear implant and is changed as a 
child learns to discriminate signals to a finer degree. Optimization 
services are generally provided at a specialized clinic. As we 
discussed previously regarding Sec.  300.34, optimization services are 
not a covered service under the Act. However, a public agency still has 
a role in providing services and supports to help children with 
cochlear implants.
    Particularly with younger children or children who have recently 
obtained implants, teachers and related services personnel frequently 
are the first to notice changes in the child's perception

[[Page 46571]]

of sounds that the child may be missing. This may manifest as a lack of 
attention or understanding on the part of the child or frustration in 
communicating. The changes may indicate a need for remapping, and we 
would expect that school personnel would communicate with the child's 
parents about these issues. To the extent that adjustments to the 
devices are required, a specially trained professional would provide 
the remapping, which is not considered the responsibility of the public 
agency.
    In many ways, there is no substantive difference between serving a 
child with a cochlear implant in a school setting and serving a child 
with a hearing aid. The externally worn speech processor connected with 
the surgically implanted device is similar to a hearing aid in that it 
must be turned on and properly functioning in order for the child to 
benefit from his or her education. Parents of children with cochlear 
implants and parents of children with hearing aids both frequently 
bring to school extra batteries, cords, and other parts for the hearing 
aids and externally worn speech processors connected with the 
surgically-implanted devices, especially for younger children. The 
child also may need to be positioned so that he or she can directly see 
the teacher at all times, or may need an FM amplification system such 
as an audio loop.
    For services that are not necessary to provide access to education 
by maintaining the health or safety of the child while in school, the 
distinguishing factor between those services that are not covered under 
the Act, such as mapping, and those that are covered, such as verifying 
that a cochlear implant is functioning properly, in large measure, is 
the level of expertise required. The maintenance and monitoring of 
surgically implanted devices require the expertise of a licensed 
physician or an individual with specialized technical expertise beyond 
that typically available from school personnel. On the other hand, 
trained lay persons or nurses can routinely check an externally worn 
processor connected with a surgically implanted device to determine if 
the batteries are charged and the external processor is operating. (As 
discussed below, the Act does require public agencies to provide those 
services that are otherwise related services and are necessary to 
maintain a child's health or safety in school even if those services 
require specialized training.) Teachers and related services providers 
can be taught to first check the externally worn speech processor to 
make sure it is turned on, the volume and sensitivity settings are 
correct, and the cable is connected, in much the same manner as they 
are taught to make sure a hearing aid is properly functioning. To allow 
a child to sit in a classroom when the child's hearing aid or cochlear 
implant is not functioning is to effectively exclude the child from 
receiving an appropriate education. Therefore, we believe it is 
important to clarify that a public agency is responsible for the 
routine checking of the external components of a surgically implanted 
device in much the same manner as a public agency is responsible for 
the proper functioning of hearing aids.
    The public agency also is responsible for providing services 
necessary to maintain the health and safety of a child while the child 
is in school, with breathing, nutrition, and other bodily functions 
(e.g., nursing services, suctioning a tracheotomy, urinary 
catheterization) if these services can be provided by someone who has 
been trained to provide the service and are not the type of services 
that can only be provided by a licensed physician. (Cedar Rapids 
Community School District v. Garret F., 526 U.S. 66 (1999)).
    Changes: We have added new Sec.  300.113 to cover the routine 
checking of hearing aids and external components of surgically 
implanted devices. The requirement for the routine checking of hearing 
aids has been removed from proposed Sec.  300.105 and included in new 
Sec.  300.113(a). The requirement for routine checking of an external 
component of a surgically implanted medical device has been added as 
new Sec.  300.113(b). The requirements for assistive technology devices 
and services remain in Sec.  300.105 and the heading has been changed 
to reflect this change. We have also included a reference to new Sec.  
300.113(b) in new Sec.  300.34(b)(2).
    Comment: A few commenters stated that specialized cochlear implant 
audiologists who are at implant centers or closely associated with them 
should program cochlear implants. One commenter stated that, typically, 
school audiologists and school personnel do not have the specialized 
experience to program cochlear implants.
    Discussion: The personnel with the specific expertise or licensure 
required for the optimization (e.g., mapping) of surgically implanted 
devices are decisions to be made within each State based on applicable 
State statutes and licensing requirements. Since mapping is not covered 
under the Act, personnel standards for individuals who provide mapping 
services are beyond the scope of these regulations.
    Changes: None.
Audiology (Sec.  300.34(c)(1))
    Comment: One commenter stated that the definition of audiology does 
not reflect current audiology practice in schools and recommended new 
language to include services for children with auditory-related 
disorders, provision of comprehensive audiologic habilitation and 
rehabilitation services; consultation and training of teachers and 
other school staff; and involvement in classroom acoustics.
    Discussion: The definition of audiology is sufficiently broad to 
enable audiologists to be involved in the activities described by the 
commenter. We do not believe it is necessary to change the definition 
to add the specific functions recommended by the commenter.
    Changes: None.
    Comment: A few commenters requested adding mapping services for a 
child with a cochlear implant to the definition of audiology.
    Discussion: For the reasons discussed previously in this section, 
Sec.  300.34(b) specifically excludes the optimization of a surgically 
implanted device from the definition of related services. This includes 
mapping of a cochlear implant.
    Changes: None.
    Comment: One commenter stated that the definition of audiology 
appears to be limited to children who are deaf or hard of hearing, and 
recommended adding language to allow children without expressive speech 
to receive such services.
    Discussion: The term audiology, as defined in Sec.  300.34(c)(1), 
focuses on identifying and serving children who are deaf or hard of 
hearing. It is not necessary to add language in the regulations 
regarding children without expressive speech because the determining 
factor of whether audiology services are appropriate for a child is 
whether the child may be deaf or hard of hearing, not whether a child 
has expressive speech.
    Changes: None.
Early Identification and Assessment of Disabilities (Sec.  
300.34(c)(3))
    Comment: Some commenters noted that ``early identification and 
assessment of disabilities'' was removed from the list of related 
services in Sec.  300.34(a).
    Discussion: ``Early identification and assessment of disabilities'' 
was inadvertently omitted from the list of related services in Sec.  
300.34(a).
    Changes: ``Early identification and assessment'' will be added to 
the list of related services in Sec.  300.34(a).

[[Page 46572]]

Interpreting Services (Sec.  300.34(c)(4))
    Comment: One commenter recommended that the definition of 
interpreting services requires that such services be provided by a 
qualified interpreter who is able to effectively, accurately, and 
impartially use any specialized vocabulary, both receptively and 
expressively. A few commenters strongly recommended requiring 
interpreting services to be provided by qualified interpreters to 
ensure equivalent communication access and effective communication 
with, and for, children who are deaf or hard of hearing. The commenter 
stated that personnel standards for interpreters vary greatly across 
SEAs and LEAs, and requiring qualified interpreters would be consistent 
with the definition of other related services included in these 
regulations such as physical therapy and occupational therapy.
    One commenter recommended defining the function of an interpreter 
as a person who facilitates communication between children who are deaf 
or hard of hearing, staff, and children, regardless of the job title.
    Discussion: Section 300.156, consistent with section 612(a)(14) of 
the Act, clarifies that it is the responsibility of each State to 
establish personnel qualifications to ensure that personnel necessary 
to carry out the purposes of the Act are appropriately and adequately 
prepared and trained and have the content knowledge and skills to serve 
children with disabilities. It is not necessary to add more specific 
functions of individuals providing interpreting services, as 
recommended by the commenters. States are appropriately given the 
flexibility to determine the qualifications and responsibilities of 
personnel, based on the needs of children with disabilities in the 
State.
    Changes: None.
    Comment: A few commenters recommended including American sign 
language and sign language systems in the definition of interpreting 
services.
    Discussion: The definition of interpreting services is sufficiently 
broad to include American sign language and sign language systems, and 
therefore, will not be changed. We believe it is important to include 
sign language transliteration (e.g., translation systems such as Signed 
Exact English and Contact Signing), in addition to sign language 
interpretation of another language (e.g., American sign language) in 
the definition of interpreting services, and will add this language to 
Sec.  300.34(c)(4)(i).
    Changes: We have added language to Sec.  300.34(c)(4)(i) to include 
sign language transliteration.
    Comment: A few commenters recommended changing the definition of 
interpreting services to clarify that the need for interpreting 
services must be based on a child's disability and not degree of 
English proficiency.
    Discussion: The definition of interpreting services clearly states 
that interpreting services are used with children who are deaf or hard 
of hearing. The nature and type of interpreting services required for 
children who are deaf or hard of hearing and also limited in English 
proficiency are to be determined by reference to the Department's 
regulations and policies regarding students with limited English 
proficiency. For example, the Department's regulations in 34 CFR part 
100, implementing Title VI of the Civil Rights Act of 1964, 42 U.S.C. 
2000d, require that recipients of Federal financial assistance ensure 
meaningful access to their programs and activities by students who are 
limited English proficient, including those who are deaf or hard of 
hearing. The requirement to provide services to students who are 
limited English proficient and others is also governed by various 
Department policy memoranda including the September 27, 1991 
memorandum, ``Department of Education Policy Update on Schools' 
Obligations Toward National Origin Minority Students With Limited 
English Proficiency''; the December 3, 1985 guidance document, ``The 
Office for Civil Rights' Title VI Language Minority Compliance 
Procedures''; and the May 1970 memorandum to school districts, 
``Identification of discrimination and Denial of Services on the Basis 
of National Origin,'' 35 FR 11595. These documents are available at 
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.lep.gov. We do not believe additional clarification is 

necessary.
    Changes: None.
    Comment: One commenter stated that the definition of interpreting 
services appears to be limited to children who are deaf or hard of 
hearing, and recommended adding language to allow children without 
expressive speech to receive such services.
    Discussion: Interpreting services, as defined in Sec.  
300.34(c)(4), clearly states that interpreting services are used with 
children who are deaf and hard of hearing. Therefore, a child who is 
not deaf or hard of hearing, but who is without expressive speech, 
would not be considered eligible to receive interpreting services as 
defined in Sec.  300.34(c)(4). However, such a child could be 
considered eligible for speech-language pathology services, consistent 
with Sec.  300.34(c)(15).
    Changes: None.
    Comment: Some commenters recommended including communication access 
real-time transcription (CART) services in the definition of 
interpreting services because these services are being used with 
increasing frequency in postsecondary education and employment 
settings, and familiarity and experience with CART services may better 
prepare children who are deaf or hard of hearing to transition to 
higher education and employment environments. A few commenters stated 
that the definition of interpreting services appears to limit 
interpreting services to the methods listed in Sec.  300.34(c)(4), 
which exclude tactile and close vision interpreting for children who 
are deaf-blind.
    Discussion: Although the definition of interpreting services is 
written broadly to include other types of interpreting services, we 
believe that it is important to include in the definition services in 
which oral communications are transcribed into real-time text. 
Therefore, we are adding language to Sec.  300.34(c)(4) to refer to 
transcription services and include several examples of transcription 
systems used to provide such services.
    We also believe that it is important that the definition of 
interpreting services include services for children who are deaf-blind. 
However, because there are many types of interpreting services for 
children who are deaf-blind, in addition to tactile and close vision 
interpreting services, we will add a more general statement to include 
interpreting services for children who are deaf-blind, rather than 
listing all the different methods that might be used for children who 
are deaf-blind.
    Changes: We have restructured Sec.  300.34(c)(4) and added ``and 
transcription services such as communication real-time translation 
(CART), C-Print, and TypeWell'' to the definition of interpreting 
services in paragraph (c)(4)(i). We have also added a new paragraph 
(c)(4)(ii) to include interpreting services for children who are deaf-
blind.
Medical Services (Sec.  300.34(c)(5))
    Comment: One commenter stated that the definition of medical 
services is not in the Act and recommended that the definition be 
broader than the decision in Cedar Rapids Community School Dist. v. 
Garrett F., 526 U.S. 66 (1999), which the definition appears to follow.
    Discussion: The list of related services in Sec.  300.34(a) 
includes medical services

[[Page 46573]]

for diagnostic and evaluation purposes, consistent with section 602(26) 
of the Act. The Department continues to believe that using language 
from the Act to define medical services is essential. Defining medical 
services more broadly, as recommended by the commenter, would not be 
consistent with the Act.
    Changes: None.
Orientation and Mobility Services (Sec.  300.34(c)(7))
    Comment: Several commenters supported including travel training in 
the definition of orientation and mobility services and recommended 
adding a reference to the definition of travel training in new Sec.  
300.39(b)(4) (proposed Sec.  300.38(b)(4)). However, other commenters 
stated that travel training should appear as a distinct related service 
and should not be included in the definition of orientation and 
mobility services because children who are blind and visually impaired 
receive this type of instruction from certified orientation and 
mobility specialists. One commenter stated that the regulations should 
specify that travel training is for children with cognitive or other 
disabilities.
    Discussion: We believe that including travel training in the 
definition of orientation and mobility services may be misinterpreted 
to mean that travel training is available only for children who are 
blind or visually impaired or that travel training is the same as 
orientation and mobility services. We will, therefore, remove travel 
training from Sec.  300.34(c)(7). This change, however, does not 
diminish the services that are available to children who are blind or 
visually impaired.
    Travel training is defined in new Sec.  300.39(b)(4) (proposed 
Sec.  300.38(b)(4)) for children with significant cognitive 
disabilities and any other children with disabilities who require this 
instruction, and, therefore, would be available for children who are 
blind or visually impaired, as determined by the child's IEP Team. 
Travel training is not the same as orientation and mobility services 
and is not intended to take the place of appropriate orientation and 
mobility services.
    Changes: We have removed ``travel training instruction'' from Sec.  
300.34(c)(7)(ii) to avoid confusion with the definition of travel 
training in new Sec.  300.39(b)(4) (proposed Sec.  300.38(b)(4)), and 
to clarify that travel training is not the same as orientation and 
mobility services and cannot take the place of appropriate orientation 
and mobility services.
    Comment: One commenter recommended that the regulations specify who 
is qualified to provide travel training instruction and stated that it 
is critical that skills such as street crossing be taught correctly.
    Discussion: Section 300.156, consistent with section 612(a)(14) of 
the Act, requires each State to establish personnel qualifications to 
ensure that personnel necessary to carry out the purposes of the Act 
are appropriately and adequately prepared and trained and have the 
content knowledge and skills to serve children with disabilities. It 
is, therefore, the State's responsibility to determine the 
qualifications that are necessary to provide travel training 
instruction.
    Changes: None.
Parent Counseling and Training (Sec.  300.34(c)(8))
    Comment: A few commenters stated that the definition of parent 
counseling and training in Sec.  300.34(c)(8) is not included in the 
definition of related services in section 602(26)(A) of the Act and, 
therefore, should not be included in the regulations.
    Discussion: Paragraphs (i) and (ii) of Sec.  300.34(c)(8), 
regarding assisting parents in understanding the special needs of their 
child, and providing parents with information about child development, 
respectively, are protected by section 607(b) of the Act, and cannot be 
removed. Section 300.34(c)(8)(iii), regarding helping parents acquire 
the skills to allow them to support the implementation of their child's 
IEP or IFSP, was added in the 1999 regulations to recognize the more 
active role of parents as participants in the education of their 
children. Although not included in the Act, we believe it is important 
to retain this provision in these regulations so that there is no 
question that parent counseling and training includes helping parents 
acquire skills that will help them support the implementation of their 
child's IEP or IFSP.
    Changes: None.
    Comment: One commenter recommended that the regulations describe 
the responsibility of LEAs to provide parent counseling and training.
    Discussion: As with other related services, an LEA only is 
responsible for providing parent counseling and training if a child's 
IEP Team determines that it is necessary for the child to receive FAPE. 
To include this language in the definition of parent counseling and 
training, moreover, would be unnecessarily duplicative of Sec.  
300.17(d), which states that FAPE means special education and related 
services that are provided in conformity with an IEP that meets the 
requirements in Sec. Sec.  300.320 through 300.324.
    Changes: None.
Physical Therapy (Sec.  300.34(c)(9))
    Comment: One commenter recommended the definition of physical 
therapy include related therapeutic services for children with 
degenerative diseases.
    Discussion: We do not believe the suggested change is necessary 
because the definition of physical therapy is broadly defined and could 
include therapeutic services for children with degenerative diseases. 
It is the responsibility of the child's IEP Team to determine the 
special education and related services that are necessary for a child 
to receive FAPE. There is nothing in the Act that prohibits the 
provision of therapeutic services for children with degenerative 
diseases, if the IEP Team determines they are needed for an individual 
child and, thereby, includes the services in the child's IEP.
    Changes: None.
    Comment: One commenter stated that the definition of physical 
therapy in Sec.  300.34(c)(9) is circular and requested that a 
functional definition be provided.
    Discussion: The definition of physical therapy has been in the 
regulations since 1977 and is commonly accepted by SEAs, LEAs, and 
other public agencies. We do not believe it is necessary to change the 
definition.
    Changes: None.
Psychological Services (Sec.  300.34(c)(10))
    Comment: One commenter recommended that the definition of 
psychological services include strategies to facilitate social-
emotional learning.
    Discussion: We do not believe the definition should be revised to 
add a specific reference to the strategies recommended by the 
commenter. The definition of psychological services is sufficiently 
broad to enable psychologists to be involved in strategies to 
facilitate social-emotional learning.
    Changes: None.
    Comment: One commenter stated that unless the definition of 
psychological services includes research-based counseling, schools will 
argue that they are required to provide counseling services delivered 
by social workers because counseling is included in the definition of 
social work services in schools.
    Discussion: We do not believe including research-based counseling 
in the definition of psychological services is necessary. Including 
counseling in the definition of social work services in schools in 
Sec.  300.34(c)(14) is intended to indicate the types of personnel who 
assist in this activity and is not intended

[[Page 46574]]

either to imply that school social workers are automatically qualified 
to perform counseling or to prohibit other qualified personnel from 
providing counseling, consistent with State requirements.
    Changes: None.
    Comment: One commenter stated that other related services 
personnel, in addition to school psychologists, should be permitted to 
develop and deliver positive behavioral intervention strategies.
    Discussion: There are many professionals who might also play a role 
in developing and delivering positive behavioral intervention 
strategies. The standards for personnel who assist in developing and 
delivering positive behavioral intervention strategies will vary 
depending on the requirements of the State. Including the development 
and delivery of positive behavioral intervention strategies in the 
definition of psychological services is not intended to imply that 
school psychologists are automatically qualified to perform these 
duties or to prohibit other qualified personnel from providing these 
services, consistent with State requirements.
    Changes: None.
Recreation (Sec.  300.34(c)(11))
    Comment: A few commenters requested modifying the definition of 
recreation to include therapeutic recreation services provided by a 
qualified recreational therapist, which include services that restore, 
remediate, or rehabilitate to improve functioning and independence, and 
reduce or eliminate the effects of illness or disability.
    Discussion: We do not believe it is necessary to change the 
definition of recreation as recommended by the commenters because the 
definition is sufficiently broad to include the services mentioned by 
the commenters.
    Changes: None.
School Health Services and School Nurse Services (Proposed School Nurse 
Services) (Sec.  300.34(c)(13))
    Comment: Some commenters noted that while ``school health 
services'' is included in the list of related services in Sec.  
300.34(a), it is not defined, which will result in confusion about the 
relationship between ``school health services'' and ``school nurse 
services.''
    Some commenters stated that adding the definition of school nurse 
services and eliminating the definition of school health services must 
not narrow the range of related services available to children. One 
commenter recommended that the definition of school nurse services 
allow school nurse services to be provided by other qualified persons, 
as well as a qualified school nurse, because the majority of schools do 
not have a school nurse on staff. One commenter requested that the 
regulations clarify that schools can continue to use registered nurses 
or other personnel to provide school nurse services, consistent with 
State law. Another commenter stated that there is well-established case 
law upholding the obligation of an SEA and LEA to provide health-
related services necessary for a child to benefit from special 
education.
    Discussion: School health services was retained in the definition 
of related services in Sec.  300.34(a). However, the definition of 
school health services was inadvertently removed in the NPRM. To 
correct this error, we will add school health services to the 
definition of school nurse services and clarify that school health 
services and school nurse services means health services that are 
designed to enable a child with a disability to receive FAPE. We will 
also add language to clarify that school nurse services are provided by 
a qualified school nurse and that school health services are provided 
by either a qualified school nurse or other qualified person. We 
recognize that most schools do not have a qualified school nurse on a 
full-time basis (i.e., a nurse that meets the State standards for a 
qualified school nurse), and that many schools rely on other qualified 
school personnel to provide school health services under the direction 
of a school nurse. Therefore, we believe it is important to retain the 
definition of school health services and school nurse services in these 
regulations.
    With the changes made in Sec.  300.34(c), it is not necessary for 
the reference to ``school nurse services'' in Sec.  300.34(a) to 
include the phrase, ``designed to enable a child with a disability to 
receive a free appropriate public education as described in the IEP of 
the child.'' We will, therefore, remove this phrase in Sec.  300.34(a).
    Changes: Section 300.34(c)(13) has been revised to include a 
definition of school health services and school nurse services. 
Additional language has been added to clarify who provides school 
health services and school nurse services. We have also modified Sec.  
300.34(a) by deleting the redundant phrase, ``designed to enable a 
child with a disability to receive a free appropriate public education 
as described in the IEP of the child.''
    Comment: One commenter stated that adding school nurse services to 
the definition of related services makes it more burdensome for the 
delivery of services to children who are medically-fragile.
    Discussion: It is unclear how adding school nurse services to the 
definition of related services affects services to children who are 
medically fragile. As defined in Sec.  300.34(c)(13), school health 
services and school nurse services are designed to enable a child with 
a disability to receive FAPE as described in the child's IEP. A child 
who is medically fragile and needs school health services or school 
nurse services in order to receive FAPE must be provided such services, 
as indicated in the child's IEP.
    Changes: None.
    Comment: One commenter stated that the definition of school nurse 
services should include services that enable a child with a disability 
to receive FAPE in the LRE. Another commenter stated that school nurses 
can be extremely supportive of children with disabilities receiving 
FAPE in the LRE and recommended changing the regulations to ensure that 
parents understand that the definition of related services includes 
school nurse services.
    Discussion: The LRE requirements in Sec. Sec.  300.114 through 
300.120 provide, that to the maximum extent appropriate, children with 
disabilities are to be educated with children who are not disabled. It 
is not necessary to repeat this requirement in the definition of school 
health services and school nurse services.
    We agree that school health services and school nurse services are 
important related services. Section 300.34(a) and section 602(26)(A) of 
the Act are clear that the definition of related services includes 
school health services and school nurse services. The IEP Team, of 
which the parent is an integral member, is responsible for determining 
the services that are necessary for the child to receive FAPE. We, 
therefore, do not believe that it is necessary to add a regulation 
requiring public agencies to ensure that parents understand that 
related services include school health services and school nurse 
services.
    Changes: None.
    Comment: One commenter stated that including the phrase, ``designed 
to enable a child with a disability to receive a free appropriate 
public education'' in Sec.  300.34(c)(13) in relation to school nurse 
services, is unnecessary and confusing.
    Discussion: As stated in Sec.  300.34(a), the purpose of related 
services is to assist a child with a disability to benefit from special 
education. We believe it is necessary to specify that school health 
services and school nurse services are related services only to the 
extent that

[[Page 46575]]

the services allow a child to benefit from special education and enable 
a child with a disability to receive FAPE.
    Changes: None.
Social Work Services in Schools (Sec.  300.34(c)(14))
    Comment: One commenter recommended including strategies to 
facilitate social-emotional learning in the definition of social work 
services in schools. A few commenters stated that the role of the 
school social worker is evolving and recommended that the definition 
include the role of social workers as integral members of pre-referral 
teams that deliver interventions to decrease the number of referrals to 
special education. One commenter recommended that the definition 
include a reference to the social worker's role in addressing the 
relevant history and current functioning of an individual within his or 
her environmental context, rather than referring to social-
developmental histories. Another commenter stated that social workers 
are trained to find resources in the home, school, and community and 
recommended including such language in the definition.
    Discussion: The definition of social work services in schools is 
sufficiently broad to include the services described by the commenters 
and we do not believe the definition should be revised to add these 
more specific functions.
    Changes: None.
    Comment: One commenter stated that the definition of social work 
services in schools removes language from the 1983 regulations that 
states that social work services allow children with disabilities to 
maximize benefit from the learning program. The commenter stated that 
this is a higher standard than what is required in Sec.  300.34(c)(14), 
which only requires that services enable a child to learn as 
effectively as possible, and, therefore, the 1983 definition should be 
retained, consistent with section 607(b) of the Act.
    Discussion: We disagree with the commenter. The definition of 
social work services in schools in the 1977 regulations included 
``mobilizing school and community resources to enable the child to 
receive maximum benefit from his or her educational program.'' As 
explained in the preamble to the final 1992 regulations, the phrase 
``to receive maximum benefit'' was intended only to provide that the 
purpose of activities carried out by personnel qualified to provide 
social work services in schools is to mobilize resources so that a 
child can learn as effectively as possible in his or her educational 
program. The language in the preamble to the final 1992 regulations 
also clarified that this provision did not set a legal standard for 
that program or entitle the child to a particular educational benefit. 
The preamble further explained that, during the public comment period 
for the 1992 regulations, commenters raised concerns that the term 
``maximum benefit'' appeared to be inconsistent with the decision by 
the United States Supreme Court in Board of Education v. Rowley, 458 
U.S. 176 (1982). Therefore, the phrase was revised to read ``to learn 
as effectively as possible in his or her educational program.'' This is 
the same phrase used in the 1999 regulations and in these regulations 
in Sec.  300.34(c)(14)(iv). Because the language in the 1977 final 
regulations did not entitle a child to any particular benefit, the 
change made in 1992 did not lessen protections for a child, and, 
therefore, is not subject to section 607(b) of the Act.
    Changes: None.
    Comment: One commenter recommended adding a reference to 
``functional behavioral assessments'' in Sec.  300.34(c)(14)(v) because 
functional behavioral assessments should always precede the development 
of behavioral intervention strategies. Another commenter expressed 
concern that Sec.  300.34(c)(14)(iv), regarding social work services to 
mobilize school and community resources to enable the child to learn as 
effectively as possible, creates a potential for litigation. The 
commenter asked whether a school district could face a due process 
hearing for failure to mobilize community resources if there are no 
community resources to address the needs of the child or family.
    Discussion: The definition of social work services in schools 
includes examples of the types of social work services that may be 
provided. It is not a prescriptive or exhaustive list. The child's IEP 
Team is responsible for determining whether a child needs social work 
services, and what specific social work services are needed in order 
for the child to receive FAPE. Therefore, while conducting a functional 
behavioral assessment typically precedes developing positive behavioral 
intervention strategies, we do not believe it is necessary to include 
functional behavioral assessments in the definition of social work 
services in schools because providing positive behavioral intervention 
strategies is just an example of a social work service that might be 
provided to a child if the child's IEP Team determines that such 
services are needed for the child to receive FAPE. Similarly, if a 
child's IEP Team determines that mobilizing community resources would 
not be an effective means of enabling the child to learn as effectively 
as possible because there are no community resources to address the 
needs of the child, the IEP Team would need to consider other ways to 
meet the child's needs. While there is the possibility that a due 
process hearing might be filed based on a failure to mobilize community 
resources that do not exist, we do not believe that such a claim could 
ever be successful, as the regulation does not require the creation of 
community resources that do not exist.
    Changes: None.
Speech-language Pathology Services (Sec.  300.34(c)(15))
    Comment: One commenter stated that children who need speech therapy 
should have it for a full classroom period, five days a week, and not 
be removed from other classes to receive this related service.
    Discussion: It would be inconsistent with the Act to dictate the 
amount and location of services for all children receiving speech-
language pathology services, as recommended by the commenter. As with 
all related services, section 614(d)(1)(A)(i)(IV) of the Act provides 
that the child's IEP Team is responsible for determining the services 
that are needed for the child to receive FAPE. This includes 
determining the type of related service, as well as the amount and 
location of services.
    Changes: None.
    Comment: One commenter stated that the definition of speech-
language pathology services appears to be limited to children who are 
deaf or hard of hearing, and recommended adding language to the 
regulations to allow children without expressive speech to receive such 
services.
    Discussion: There is nothing in the Act or the regulations that 
would limit speech-language pathology services to children who are deaf 
or hard of hearing or to children without expressive speech. The 
definition of speech-language pathology services specifically includes 
services for children who have language impairments, as well as speech 
impairments.
    Changes: None.
    Comment: One commenter requested the definition of speech-language 
pathology services specify the qualifications and standards for speech-
language professionals. Another commenter requested that the definition 
require a highly qualified provider to deliver speech-language 
services. One commenter requested that the definition require a speech-
language pathologist to provide speech-language services.

[[Page 46576]]

    Discussion: Consistent with Sec.  300.156 and section 612(a)(14) of 
the Act, it is up to each State to establish personnel qualifications 
to ensure that personnel necessary to carry out the purposes of the Act 
are appropriately and adequately prepared and trained and have the 
content knowledge and skills to serve children with disabilities. 
Section 300.156(b), consistent with section 614(a)(14)(B) of the Act, 
specifically requires that these personnel qualifications must include 
qualifications for related services personnel. Establishing 
qualifications for individuals providing speech-language services in 
these regulations would be inconsistent with these statutory and 
regulatory requrements.
    Changes: None.
    Comment: One commenter stated that the roles and responsibilities 
for speech-language pathologists in schools have been expanded to help 
all children gain language and literacy skills and recommended that the 
definition of speech-language pathology services be revised to include 
consultation and collaboration with other staff members to plan and 
implement special intervention monitoring programs and modify classroom 
instruction to assist children in achieving academic success. The 
commenter also recommended including services for other health 
impairments, such as dysphagia, in the definition of speech-language 
pathology services.
    Discussion: The Act provides for speech-language pathology services 
for children with disabilities. It does not include speech-language 
pathology services to enable all children to gain language and literacy 
skills, as suggested by the commenter. It would, therefore, be 
inconsistent with the Act to change the definition of speech-language 
pathology services in the manner recommended by the commenter. We 
believe that the definition is sufficiently broad to include services 
for other health impairments, such as dysphagia, and therefore, decline 
to revise the definition to include this specific service.
    Changes: None.
Transportation (Sec.  300.34(c)(16))
    Comment: A few commenters stated that the definition of 
transportation should require transportation to be provided between 
school and other locations in which IEP services are provided. Other 
commenters requested that the definition explicitly define 
transportation as door-to-door services, including provisions for an 
aide to escort the child to and from the bus each day.
    Discussion: A child's IEP Team is responsible for determining 
whether transportation between school and other locations is necessary 
in order for the child to receive FAPE. Likewise, if a child's IEP Team 
determines that supports or modifications are needed in order for the 
child to be transported so that the child can receive FAPE, the child 
must receive the necessary transportation and supports at no cost to 
the parents. We believe the definition of transportation is 
sufficiently broad to address the commenters' concerns. Therefore, we 
decline to make the requested changes to the definition.
    Changes: None.
    Comment: Some commenters recommended removing the term ``special 
transportation'' from the definition of transportation because the term 
gives the impression that adapted buses are used for a separate and 
different transportation system, when, in fact, adapted buses are part 
of the regular transportation fleet and system. These commenters stated 
that adapted buses should only be used as a separate, special 
transportation service if the child's IEP indicates that the 
transportation needs of the child can be met only with transportation 
services that are separate from the transportation services for all 
children.
    Discussion: We do not believe it is necessary to make the change 
requested by the commenters. It is assumed that most children with 
disabilities will receive the same transportation provided to 
nondisabled children, consistent with the LRE requirements in 
Sec. Sec.  300.114 through 300.120, unless the IEP Team determines 
otherwise. While we understand the commenter's concern, adapted buses 
may or may not be part of the regular transportation system in a 
particular school system. In any case, if the IEP Team determines that 
a child with a disability requires transportation as a related service 
in order to receive FAPE, or requires supports to participate in 
integrated transportation with nondisabled children, the child must 
receive the necessary transportation or supports at no cost to the 
parents.
    Changes: None.
Scientifically Based Research (new Sec.  300.35)
    Comment: A number of commenters requested that the regulations 
include a definition of scientifically based research.
    Discussion: The definition of scientifically based research is 
important to the implementation of Part B of the Act and, therefore, we 
will include a reference to the definition of that term in section 
9101(37) of the ESEA.
    For the reasons set forth earlier in this notice, we are not 
including definitions from other statutes in these regulations. 
However, we will include the current definition of scientifically based 
research in section 9101(37) of the ESEA here for reference.
    Scientifically based research--
    (a) Means research that involves the application of rigorous, 
systematic, and objective procedures to obtain reliable and valid 
knowledge relevant to education activities and programs; and
    (b) Includes research that--
    (1) Employs systematic, empirical methods that draw on observation 
or experiment;
    (2) Involves rigorous data analyses that are adequate to test the 
stated hypotheses and justify the general conclusions drawn;
    (3) Relies on measurements or observational methods that provide 
reliable and valid data across evaluators and observers, across 
multiple measurements and observations, and across studies by the same 
or different investigators;
    (4) Is evaluated using experimental or quasi-experimental designs 
in which individuals, entities, programs, or activities are assigned to 
different conditions and with appropriate controls to evaluate the 
effects of the condition of interest, with a preference for random-
assignment experiments, or other designs to the extent that those 
designs contain within-condition or across-condition controls;
    (5) Ensures that experimental studies are presented in sufficient 
detail and clarity to allow for replication or, at a minimum, offer the 
opportunity to build systematically on their findings; and
    (6) Has been accepted by a peer-reviewed journal or approved by a 
panel of independent experts through a comparably rigorous, objective, 
and scientific review.
    Changes: A cross-reference to the definition of scientifically 
based research in section 9101(37) of the ESEA has been added as new 
Sec.  300.35. Subsequent definitions have been renumbered accordingly.
Secondary School (New Sec.  300.36) (Proposed Sec.  300.35)
    Comment: One commenter requested clarification regarding the 
definition of secondary school and whether ``grade 12'' refers to the 
regular grade 12 curriculum aligned to State academic achievement 
standards under the ESEA or a limit on the number of years

[[Page 46577]]

children with a disabilities can spend in school.
    Discussion: The term ``grade 12'' in the definition of secondary 
school has the meaning given it under State law. It is not intended to 
impose a Federal limit on the number of years a child with a disability 
is allowed to complete his or her secondary education, as some children 
with disabilities may need more than 12 school years to complete their 
education.
    Changes: None.
Services Plan (New Sec.  300.37) (Proposed Sec.  300.36)
    Comment: One commenter stated that the term services plan is not in 
the Act and, therefore, should be removed. However, the commenter 
stated that if the definition of services plan remained in the 
regulations, it should reflect the fact that parentally-placed private 
school children are not entitled to FAPE.
    Discussion: The definition of services plan was included to 
describe the content, development, and implementation of plans for 
parentally-placed private school children with disabilities who have 
been designated to receive equitable services. The definition cross-
references the specific requirements for the provision of services to 
parentally-placed private school children with disabilities in Sec.  
300.132 and Sec. Sec.  300.137 through 300.139, which provide that 
parentally-placed private school children have no individual right to 
special education and related services and thus are not entitled to 
FAPE. We do not believe further clarification is necessary.
    Changes: None.
Special Education (New Sec.  300.39) (Proposed Sec.  300.38)
    Comment: One commenter requested modifying the definition of 
special education to distinguish special education from other forms of 
education, such as remedial programming, flexible grouping, and 
alternative education programming. The commenter stated that flexible 
grouping, diagnostic and prescriptive teaching, and remedial 
programming have expanded in the general curriculum in regular 
classrooms and the expansion of such instruction will only be 
encouraged with the implementation of early intervening services under 
the Act.
    Discussion: We believe the definition of special education is clear 
and consistent with the definition in section 602(29) of the Act. We do 
not believe it is necessary to change the definition to distinguish 
special education from the other forms of education mentioned by the 
commenter.
    Changes: None.
Individual Special Education Terms Defined (New Sec.  300.39(b)) 
(Proposed Sec.  300.38(b))
    Comment: A few commenters provided definitions of 
``accommodations'' and ``modifications'' and recommended including them 
in new Sec.  300.39(b) (proposed Sec.  300.38(b)).
    Discussion: The terms ``accommodations'' and ``modifications'' are 
terms of art referring to adaptations of the educational environment, 
the presentation of educational material, the method of response, or 
the educational content. They are not, however, examples of different 
types of ``education'' and therefore we do not believe it is 
appropriate to define these terms of art or to include them in new 
Sec.  300.39(b) (proposed Sec.  300.38(b)).
    Changes: None.
Physical Education (New Sec.  300.39(b)(2)) (Proposed Sec.  
300.38(b)(2))
    Comment: One commenter requested that adaptive physical education 
be subject to the LRE requirements of the Act.
    Discussion: The requirements in Sec. Sec.  300.114 through 300.120 
require that, to the maximum extent appropriate, children with 
disabilities are educated with children who are nondisabled. This 
requirement applies to all special education services, including 
adaptive physical education. We see no need to repeat this requirement 
specifically for the provision of adaptive physical education.
    Changes: None.
Specially Designed Instruction (New Sec.  300.39(b)(3)) (Proposed Sec.  
300.38(b)(3))
    Comment: One commenter stated that the regulations should 
strengthen the requirements ensuring children access to the general 
curriculum, because many children with disabilities still do not have 
the tools they need or the teachers with expertise to access the 
general curriculum.
    Discussion: We believe the regulations place great emphasis on 
ensuring that children with disabilities have access to the general 
education curriculum. New Sec.  300.39(b)(3) (proposed Sec.  
300.38(b)(3)) defines specially designed instruction as adapting the 
content, methodology, or delivery of instruction to address the unique 
needs of the child and to ensure access to the general curriculum so 
that the child can meet the educational standards within the 
jurisdiction of the public agency that apply to all children. In 
addition, ensuring that children with disabilities have access to the 
general curriculum is a major focus of the requirements for developing 
a child's IEP. For example, Sec.  300.320(a)(1) requires a child's IEP 
to include a statement of how the child's disability affects the 
child's involvement and progress in the general education curriculum; 
Sec.  300.320(a)(2)(i) requires annual IEP goals to be designed to 
enable the child to be involved in and make progress in the general 
education curriculum; and Sec.  300.320(a)(4) requires the IEP to 
include a statement of the special education and related services the 
child will receive, as well as the program modifications or supports 
for school personnel that will be provided, to enable the child to be 
involved in and make progress in the general education curriculum. We 
do not believe additional language is necessary.
    Changes: None.
Travel Training (New Sec.  300.39(b)(4)) (Proposed Sec.  300.38(b)(4))
    Comment: A few commenters recommended strengthening the definition 
of travel training in new Sec.  300.39(b)(4) (proposed Sec.  
300.38(b)(4)) and adding travel training to new Sec.  300.43 (proposed 
Sec.  300.42) (transition services) to acknowledge that transportation 
is vitally important for children with disabilities to have full 
participation in the community. The commenters recommended that the 
definition of travel training include providing instruction to children 
with disabilities, other than blindness, to enable them to learn the 
skills and behaviors necessary to move effectively and safely in 
various environments, including use of public transportation.
    Discussion: We believe the definition of travel training already 
acknowledges the importance of transportation in supporting children 
with disabilities to fully participate in their communities. New Sec.  
300.43(a)(4) (proposed Sec.  300.42(a)(4)) defines travel training to 
include providing instruction that enables children to learn the skills 
necessary to move effectively and safely from place to place in school, 
home, at work and in the community. Therefore, we do not believe that 
further clarification is necessary. We also do not believe that it is 
necessary to add travel training to the definition of transition 
services, as recommended by the commenters. We believe that IEP Teams 
already consider the importance of transportation and travel training 
services in the course of planning for a student's postsecondary 
transition needs. It is unnecessary to state that travel training 
includes instructing children with disabilities other than

[[Page 46578]]

blindness, as requested by the commenters, because the definition of 
travel training already states that travel training is appropriate for 
any child with a disability who requires this instruction.
    Changes: None.
    Comment: A few commenters strongly recommended clarifying that the 
definition of travel training does not include training for children 
with visual impairments, regardless of whether they have additional 
disabilities.
    Discussion: Any child with a disability, including a child with a 
visual impairment, who needs travel training instruction to receive 
FAPE, as determined by the child's IEP Team, can receive travel 
training instruction. New Sec.  300.39(b)(4) (proposed Sec.  
300.38(b)(4)) specifically states that travel training means providing 
instruction to children with significant cognitive disabilities and any 
other children with disabilities who require this instruction. We, 
therefore, decline to change the definition, as recommended by the 
commenters.
    Changes: None.
Vocational Education (New Sec.  300.39(b)(5)) (Proposed Sec.  
300.38(b)(5))
    Comment: A few commenters recommended revising the definition of 
vocational education to include specially designed educational programs 
that are directly related to the preparation of individuals for paid or 
unpaid employment or for additional preparation for a career not 
requiring a baccalaureate or advanced degree.
    Discussion: We believe that the more general reference to 
``organized education programs'' in the definition of vocational 
education is accurate and should not be changed to refer to ``specially 
designed educational programs,'' as recommended by the commenter, 
because some children with disabilities will benefit from educational 
programs that are available for all children and will not need 
specially designed programs.
    Changes: None.
    Comment: Some commenters stated that Congress did not intend that 
the definition of vocational education would include vocational and 
technical education. The commenters stated that the addition of 
vocational and technical education to the definition of vocational 
education creates a right under the Act to educational services that 
would be extremely costly for States and LEAs to implement.
    Other commenters stated that including the definition of vocational 
and technical education from the Carl D. Perkins Act expands FAPE 
beyond secondary education, which is an unwarranted responsibility for 
school districts. One commenter stated that the definition could be 
interpreted to require public agencies to provide two years of 
postsecondary education for students with disabilities. A few 
commenters strongly recommended removing the definition of vocational 
and technical education.
    Some commenters recommended removing the reference to the 
postsecondary level for a 1-year certificate, an associate degree, and 
industry-recognized credential in the definition of vocational and 
technical education. One commenter suggested that proposed Sec.  
300.38(b)(6)(i)(A) conclude with the word ``or'' to clarify that the 
sequence of courses is discretionary.
    Discussion: The definition of vocational education was revised to 
include the definition of vocational and technical education in the 
Carl D. Perkins Vocational and Applied Technology Act of 1988, as 
amended, 20 U.S.C. 2301, 2302(29). However, based on the comments we 
received, it is apparent that including the definition of vocational 
and technical education has raised concerns and confusion regarding the 
responsibilities of SEAs and LEAs to provide vocational education. 
Therefore, we will remove the definition of vocational and technical 
education in proposed Sec.  300.38(b)(6) and the reference to 
vocational and technical education in proposed Sec.  300.38(b)(5)(ii).
    Changes: The definition of vocational and technical education in 
proposed Sec.  300.38(b)(6) has been removed. Accordingly, the 
reference to vocational and technical education in proposed Sec.  
300.38(b)(5)(ii)) has also been removed.
Supplementary Aids and Services (New Sec.  300.42) (Proposed Sec.  
300.41)
    Comment: A few commenters stated that the definition of 
supplementary aids and services should be changed to mean aids, 
services, and other supports provided in general education classes or 
other settings to children with disabilities, as well as to educators, 
other support staff, and nondisabled peers, if necessary, to support 
the inclusion of children with disabilities.
    Discussion: The definition of supplementary aids and services in 
new Sec.  300.42 (proposed Sec.  300.41) is consistent with the 
specific language in section 602(33) of the Act, and refers to aids, 
services, and other supports for children with disabilities. We do not 
believe it is necessary to change the definition to include providing 
aids, services, and supports to other individuals because Sec.  
300.320(a)(4) requires each child's IEP to include a statement of the 
program modifications or supports for school personnel that will be 
provided to enable the child to be involved in and make progress in the 
general education curriculum, and to participate in extracurricular and 
other nonacademic activities.
    As noted in the Analysis of Comments and Changes section for 
subpart B, we have clarified in Sec.  300.107(a) that States must 
ensure that public agencies take steps to provide nonacademic and 
extracurricular services and activities, including providing 
supplementary aids and services determined appropriate and necessary by 
the child's IEP Team to afford children with disabilities an equal 
opportunity for participation in those services and activities. We 
have, therefore, revised the definition of supplementary aids and 
services in new Sec.  300.42 (proposed Sec.  300.41) to be consistent 
with this change.
    Changes: We have added language in new Sec.  300.42 (proposed Sec.  
300.41) to clarify that supplementary aids and services can be provided 
in extracurricular and nonacademic settings to enable children with 
disabilities to be educated with nondisabled children to the maximum 
extent appropriate.
    Comment: None.
    Discussion: New Sec.  300.42 (proposed Sec.  300.41) contains an 
incorrect reference to Sec.  300.112. The correct reference should be 
to Sec.  300.114.
    Changes: We have removed the reference to Sec.  300.112 and 
replaced it with a reference to Sec.  300.114.
Transition Services (New Sec.  300.43) (Proposed Sec.  300.42)
    Comment: One commenter recommended replacing the word ``child'' 
with ``student'' in the definition of transition services.
    Discussion: The definition of transition services follows the 
language in section 602(34) of the Act. The words ``child'' and 
``student'' are used throughout the Act and we have used the statutory 
language in these regulations whenever possible.
    Changes: None.
    Comment: One commenter recommended that the regulations include 
vocational and career training through work-study as a type of 
transition service. A few commenters stated that the definition of 
transition services must specify that a student's need for transition 
services cannot be based on the category or severity of a student's 
disability, but rather on the student's individual needs.

[[Page 46579]]

    Discussion: We do not believe it is necessary to change the 
definition of transition services because the definition is written 
broadly to include a range of services, including vocational and career 
training that are needed to meet the individual needs of a child with a 
disability. The definition clearly states that decisions regarding 
transition services must be made on the basis of the child's individual 
needs, taking into account the child's strengths, preferences, and 
interests. As with all special education and related services, the 
student's IEP Team determines the transition services that are needed 
to provide FAPE to a child with a disability based on the needs of the 
child, not on the disability category or severity of the disability. We 
do not believe further clarification is necessary.
    Changes: None.
    Comment: A few commenters stated that the regulations do not define 
``functional'' or explain how a student's functional performance 
relates to the student's unique needs or affects the student's 
education. The commenters noted that the word ``functional'' is used 
throughout the regulations in various forms, including ``functional 
assessment,'' ``functional goals,'' ``functional abilities,'' 
``functional needs,'' ``functional achievement,'' and ``functional 
performance,'' and should be defined to avoid confusion. One commenter 
recommended either defining the term or explicitly authorizing States 
to define the term.
    One commenter recommended clarifying that ``functional 
performance'' must be a consideration for any child with a disability 
who may need services related to functional life skills and not just 
for students with significant cognitive disabilities. A few commenters 
stated that the definition of transition services must specify that 
``functional achievement'' includes achievement in all major life 
functions, including behavior, social-emotional development, and daily 
living skills.
    Discussion: We do not believe it is necessary to include a 
definition of ``functional'' in these regulations because the word is 
generally used to refer to activities and skills that are not 
considered academic or related to a child's academic achievement as 
measured on Statewide achievement tests. There is nothing in the Act 
that would prohibit a State from defining ``functional,'' as long as 
the definition and its use are consistent with the Act.
    We also do not believe it is necessary for the definition of 
transition services to refer to all the major life functions or to 
clarify that functional performance must be a consideration for any 
child with a disability, and not just for students with significant 
cognitive disabilities. As with all special education and related 
services, the student's IEP Team determines the services that are 
needed to provide FAPE to a child with a disability based on the needs 
of the child.
    Changes: None.
    Comment: One commenter requested a definition of ``results-oriented 
process.''
    Discussion: The term ``results-oriented process,'' which appears in 
the statutory definition of transition services, is generally used to 
refer to a process that focuses on results. Because we are using the 
plain meaning of the term (i.e., a process that focuses on results), we 
do not believe it is necessary to define the term in these regulations.
    Changes: None.
    Comment: A few commenters stated that ``acquisition of daily living 
skills and functional vocational evaluation'' is unclear as a child 
does not typically ``acquire'' an evaluation. The commenters stated 
that the phrase should be changed to ``functional vocational skills.''
    Discussion: We agree that the phrase is unclear and will clarify 
the language in the regulation to refer to the ``provision of a 
functional vocational evaluation.''
    Changes: We have added ``provision of a'' before ``functional 
vocational evaluation'' in new Sec.  300.43(a)(2)(v) for clarity.
Universal Design (New Sec.  300.44) (Proposed Sec.  300.43)
    Comment: Many commenters requested including the full definition of 
universal design in the regulations, rather than providing a reference 
to the definition of the term.
    Discussion: The term universal design is defined in the Assistive 
Technology Act of 1998, as amended. For the reasons set forth earlier 
in this notice, we are not including in these regulations full 
definitions of terms that are defined in other statutes. However, we 
will include the definition of this term from section 3 of the 
Assistive Technology Act of 1998, as amended, 29 U.S.C. 3002, here for 
reference.
    The term universal design means a concept or philosophy for 
designing and delivering products and services that are usable by 
people with the widest possible range of functional capabilities, which 
include products and services that are directly accessible (without 
requiring assistive technologies) and products and services that are 
interoperable with assistive technologies.
    Changes: None.
    Comment: Several commenters stated that the definition of universal 
design should be changed to include the universal design of academic 
content standards, curricula, instructional materials, and assessments.
    Discussion: The definition of universal design is statutory. 
Congress clearly intended that we use this specific definition when it 
used this term in the Act. We do not believe we can change this 
definition as suggested by the commenters.
    Changes: None.

Subpart B--State Eligibility

FAPE Requirements

Free Appropriate Public Education (FAPE) (Sec.  300.101)
    Comment: One commenter recommended revising Sec.  300.101 to ensure 
that children with disabilities who are suspended or expelled from 
their current placement are provided educational services consistent 
with State academic achievement standards. One commenter asked whether 
children with disabilities who are suspended or expelled from their 
current placement must continue to be taught by highly qualified 
teachers.
    Discussion: We believe the concern raised by the commenter is 
already addressed by this regulation and elsewhere in the regulations 
and that no changes to Sec.  300.101 are necessary. Section 300.530(d), 
consistent with section 615(k)(1)(D) of the Act, clarifies that a child 
with a disability who is removed from his or her current placement for 
disciplinary reasons, irrespective of whether the behavior is 
determined to be a manifestation of the child's disability, must be 
allowed to participate in the general education curriculum, although in 
another setting, and to progress toward meeting his or her IEP goals. 
As the term ``general education curriculum'' is used throughout the Act 
and in these regulations, the clear implication is that there is an 
education curriculum that is applicable to all children and that this 
curriculum is based on the State's academic content standards.
    Children with disabilities who are suspended or expelled from their 
current placement in public schools must continue to be taught by 
highly qualified teachers, consistent with the requirements in 
Sec. Sec.  300.156 and 300.18. Private school teachers are not subject 
to the highly qualified teacher requirements under this part.
    Changes: None.

[[Page 46580]]

    Comment: One commenter suggested clarifying in Sec.  300.101 that 
FAPE must be available to children with disabilities in the least 
restrictive environment.
    Discussion: We do not believe further clarification is needed in 
Sec.  300.101, as the matter is adequately covered elsewhere in the 
regulations. Section 300.101 clarifies that, in order to be eligible to 
receive funds under Part B of the Act, States must, among other 
conditions, ensure that FAPE is made available to all children with 
specified disabilities in mandated age ranges. The term FAPE is defined 
in Sec.  300.17 and section 602(9)(D) of the Act as including, among 
other elements, special education and related services, provided at no 
cost to parents, in conformity with an individualized education program 
(IEP). Sections 300.114 through 300.118, consistent with section 
612(a)(5) of the Act, implement the Act's strong preference for 
educating children with disabilities in regular classes with 
appropriate aids and supports. Specifically, Sec.  300.114 provides 
that States must have in effect policies and procedures ensuring that, 
to the maximum extent appropriate, children with disabilities, 
including children in public or private institutions or other care 
facilities, are educated with children who are nondisabled, and that 
special classes, separate schooling, or other removal of children with 
disabilities from the regular educational environment occurs only if 
the nature or severity of the disability is such that education in 
regular classes with the use of supplementary aids and services cannot 
be achieved satisfactorily.
    Changes: None.
    Comment: A few commenters recommended including language in Sec.  
300.101(a) specifying that children with disabilities expelled or 
suspended from the general education classroom must be provided FAPE in 
the least restrictive environment.
    Discussion: The Department believes it would not be appropriate to 
include the requested language in this section because services in 
these circumstances are provided under somewhat different criteria than 
is normally the case. Section 300.530 clarifies the procedures school 
personnel must follow when removing a child with a disability who 
violates a code of student conduct from their current placement (e.g., 
suspension and expulsion). This includes how decisions are made 
regarding the educational services the child receives and the location 
in which they will be provided. School officials need some reasonable 
amount of flexibility in providing services to children with 
disabilities who have violated school conduct rules, and should not 
necessarily have to provide exactly the same services, in the same 
settings, to these children. Therefore, we decline to regulate further 
in this regard.
    Changes: None.
    Comment: Some commenters expressed concern that children with 
disabilities have to fail or be retained in a grade or course in order 
to be considered eligible for special education and related services.
    Discussion: Section 300.101(c) provides that a child is eligible to 
receive special education and related services even though the child is 
advancing from grade to grade. Further, it is implicit from paragraph 
(c) of this section that a child should not have to fail a course or be 
retained in a grade in order to be considered for special education and 
related services. A public agency must provide a child with a 
disability special education and related services to enable him or her 
to progress in the general curriculum, thus making clear that a child 
is not ineligible to receive special education and related services 
just because the child is, with the support of those individually 
designed services, progressing in the general curriculum from grade-to-
grade or failing a course or grade. The group determining the 
eligibility of a child for special education and related services must 
make an individual determination as to whether, notwithstanding the 
child's progress in a course or grade, he or she needs or continues to 
need special education and related services. However, to provide 
additional clarity we will revise paragraph (c)(1) of this section to 
explicitly state that children do not have to fail or be retained in a 
course or grade in order to be considered eligible for special 
education and related services.
    Changes: Section 300.101(c)(1) has been revised to provide that 
children do not have to fail or be retained in a course or grade in 
order to be considered eligible for special education and related 
services.
Limitation--Exception to FAPE for Certain Ages (Sec.  300.102)
    Comment: One commenter requested that the regulations clarify that 
children with disabilities who do not receive a regular high school 
diploma continue to be eligible for special education and related 
services. One commenter expressed concern that the provision in Sec.  
300.102(a)(3)(ii) regarding children with disabilities who have not 
been awarded a regular high school diploma could result in the delay of 
transition services in the context of the child's secondary school 
experience and postsecondary goals.
    Discussion: We believe that Sec.  300.102(a)(3) is sufficiently 
clear that public agencies need not make FAPE available to children 
with disabilities who have graduated with a regular high school diploma 
and that no change is needed to the regulations. Children with 
disabilities who have not graduated with a regular high school diploma 
still have an entitlement to FAPE until the child reaches the age at 
which eligibility ceases under the age requirements within the State. 
However, we have reviewed the regulations and believe that it is 
important for these regulations to define ``regular diploma'' 
consistent with the ESEA regulations in 34 CFR Sec.  200.19(a)(1)(i). 
Therefore, we will add language to clarify that a regular high school 
diploma does not include an alternative degree that is not fully 
aligned with the State's academic standards, such as a certificate or 
general educational development (GED) credential.
    We do not believe Sec.  300.102 could be interpreted to permit 
public agencies to delay implementation of transition services, as 
stated by one commenter because transition services must be provided 
based on a child's age, not the number of years the child has remaining 
in the child's high school career. Section 300.320(b), consistent with 
section 614(d)(1)(A)(i)(VIII) of the Act, requires each child's IEP to 
include, beginning not later than the first IEP to be in effect when 
the child turns 16, or younger if determined appropriate by the IEP 
Team, appropriate measurable postsecondary goals and the transition 
services needed to assist the child in reaching those goals.
    Changes: A new paragraph (iv) has been added in Sec.  300.102(a)(3) 
stating that a regular high school diploma does not include an 
alternative degree that is not fully aligned with the State's academic 
standards, such as a certificate or GED.
    Comment: One commenter requested clarification as to how States 
should include children with disabilities who require special education 
services through age 21 in calculating, for adequate yearly progress 
(AYP) purposes, the percentage of children who graduate with a regular 
high school diploma in the standard number of years. The commenter 
expressed concern that States, in order to comply with their high 
school graduation rate academic outcome requirements under the ESEA, 
will change the grade status from 12th grade to 11th grade for those 
children with disabilities who will typically age out of the public 
education

[[Page 46581]]

system under the Act. The commenter further stated that this will 
affect the exception to FAPE provisions in Sec.  300.102 for children 
with disabilities who require special education services through age 
21.
    Discussion: The calculation of graduation rates under the ESEA for 
AYP purposes (34 CFR 200.19(a)(1)(i)) does not alter the exception to 
FAPE provisions in Sec.  300.102(a)(3) for children with disabilities 
who graduate from high school with a regular high school diploma, but 
not in the standard number of years. The public agency must make FAPE 
available until age 21 or the age limit established by State law, even 
though the child would not be included as graduating for AYP purposes 
under the ESEA. In practice, though, there is no conflict between the 
Act and the ESEA, as the Department interprets the ESEA title I 
regulations to permit States to propose a method for accurately 
accounting for students who legitimately take longer than the standard 
number of years to graduate.
    Changes: None.
Residential Placement: (Sec.  300.104)
    Comment: A few commenters requested that the regulations clarify 
that parents cannot be held liable for any costs if their child with a 
disability is placed in a residential setting by a public agency in 
order to provide FAPE to the child.
    Discussion: Section 300.104, consistent with section 612(a)(1) and 
(a)(10)(B) of the Act, is a longstanding provision that applies to 
placements that are made by public agencies in public and private 
institutions for educational purposes and clarifies that parents are 
not required to bear the costs of a public or private residential 
placement if such placement is determined necessary to provide FAPE. If 
a public agency determines in an individual situation that a child with 
a disability cannot receive FAPE from the programs that the public 
agency conducts and, therefore, placement in a public or private 
residential program is necessary to provide special education and 
related services to the child, the program, including non-medical care 
and room and board, must be at no cost to the parents of the child.
    In situations where a child's educational needs are inseparable 
from the child's emotional needs and an individual determination is 
made that the child requires the therapeutic and habilitation services 
of a residential program in order to ``benefit from special 
education,'' these therapeutic and habilitation services may be 
``related services'' under the Act. In such a case, the SEA is 
responsible for ensuring that the entire cost of that child's 
placement, including the therapeutic care as well as room and board, is 
without cost to the parents. However, the SEA is not responsible for 
providing medical care. Thus, visits to a doctor for treatment of 
medical conditions are not covered services under Part B of the Act and 
parents may be responsible for the cost of the medical care.
    Changes: None.
Assistive Technology (Sec.  300.105)
    Comment: One commenter recommended removing Sec.  300.105 and 
including the requirements in this section in the definition of 
assistive technology device in Sec.  300.5 and assistive technology 
service in Sec.  300.6.
    Discussion: Section 300.5 and Sec.  300.6 define the terms 
assistive technology device and assistive technology service, 
respectively. Section 300.105 is not part of the definition of these 
terms, but rather is necessary to specify the circumstances under which 
public agencies are responsible for making available assistive 
technology devices and assistive technology services to children with 
disabilities.
    Changes: None.
    Comment: A few commenters requested clarifying in Sec.  300.105(b) 
whether hearing aids are included in the definition of an assistive 
technology device.
    Discussion: An assistive technology device, as defined in Sec.  
300.5, means any item, piece of equipment, or product system that is 
used to increase, maintain, or improve the functional capabilities of a 
child with a disability. The decision of whether a hearing aid is an 
assistive technology device is a determination that is made on an 
individual basis by the child's IEP Team. However, even if the IEP Team 
determines that a hearing aid is an assistive technology device, within 
the meaning of Sec.  300.5, for a particular child, the public agency 
is responsible for the provision of the assistive technology device as 
part of FAPE, only if, as specified in Sec.  300.105, the device is 
required as part of the child's special education defined in Sec.  
300.39, related services defined in Sec.  300.34, or supplementary aids 
and services defined in Sec.  300.42.
    As a general matter, public agencies are not responsible for 
providing personal devices, such as eyeglasses or hearing aids that a 
child with a disability requires, regardless of whether the child is 
attending school. However, if it is not a surgically implanted device 
and a child's IEP Team determines that the child requires a personal 
device (e.g., eyeglasses) in order to receive FAPE, the public agency 
must ensure that the device is provided at no cost to the child's 
parents.
    Changes: None.
    Comment: One commenter recommended adding language to Sec.  
300.105(b) to include, in addition to hearing aids, other hearing 
enhancement devices, such as a cochlear implant.
    Discussion: Section 300.105(b), as proposed, requires a public 
agency to ensure that hearing aids worn in school by children with 
hearing impairments, including deafness, are functioning properly. This 
is a longstanding requirement and was included pursuant to a House 
Committee Report on the 1978 appropriations bill (H. Rpt. No. 95-381, 
p. 67 (1977)) directing the Department to ensure that children with 
hearing impairments are receiving adequate professional assessment, 
follow-up, and services. The Department believes that, given the 
increase in the number of children with disabilities with surgically 
implanted devices (e.g., cochlear implants, vagus nerve stimulators, 
electronic muscle stimulators), and rapid advances in new technologies 
to help children with disabilities, it is important that these 
regulations clearly address any obligation public agencies have to 
provide follow-up and services to ensure that such devices are 
functioning properly.
    Section 602(1) of the Act clarifies that the definition of 
assistive technology device does not include a medical device that is 
surgically implanted or the replacement of such device. Section 602(26) 
of the Act also stipulates that only medical services that are for 
diagnostic and evaluative purposes and required to assist a child with 
a disability to benefit from special education are considered a related 
service. We believe Congress was clear in its intent in S. Rpt. 108-
185, p. 8, which states:

    [T]he definitions of ``assistive technology device'' and 
``related services'' do not include a medical device that is 
surgically implanted, or the post-surgical maintenance, programming, 
or replacement of such device, or an external device connected with 
the use of a surgically implanted medical device (other than the 
costs of performing routine maintenance and monitoring of such 
external device at the same time the child is receiving other 
services under the act).

    The Department believes, however, that public agencies have an 
obligation to change a battery or routinely check an external component 
of a surgically

[[Page 46582]]

implanted medical device to make sure it is turned on and operating. 
However, mapping a cochlear implant (or paying the costs associated 
with mapping) is not routine checking as described above and should not 
be the responsibility of a public agency. We will add language to the 
regulations to clarify a public agency's responsibility regarding the 
routine checking of external components of surgically implanted medical 
devices.
    Changes: A new Sec.  300.113 has been added with the heading, 
``Routine checking of hearing aids and external components of 
surgically implanted medical devices.'' Section 300.105(b), regarding 
the proper functioning of hearing aids, has been removed and 
redesignated as new Sec.  300.113(a). We have added a new paragraph (b) 
in new Sec.  300.113 clarifying that, for a child with a surgically 
implanted medical device who is receiving special education and related 
services under this part, a public agency is responsible for routine 
checking of external components of surgically implanted medical 
devices, but is not responsible for the post-surgical maintenance, 
programming, or replacement of a medical device that has been 
surgically implanted (or of an external component of a surgically 
implanted medical device).
    The provisions in Sec.  300.105 have been changed to conform with 
the other changes to this section and the phrase ``proper functioning 
of hearing aids'' has been removed from the heading.
Extended School Year Services (Sec.  300.106)
    Comment: Several commenters recommended removing Sec.  300.106 
because the requirement to provide extended school year (ESY) services 
to children with disabilities is not required in the Act.
    Discussion: The requirement to provide ESY services to children 
with disabilities who require such services in order to receive FAPE 
reflects a longstanding interpretation of the Act by the courts and the 
Department. The right of an individual child with a disability to 
receive ESY services is based on that child's entitlement to FAPE under 
section 612(a)(1) of the Act. Some children with disabilities may not 
receive FAPE unless they receive necessary services during times when 
other children, both disabled and nondisabled, normally would not be 
served. We believe it is important to retain the provisions in Sec.  
300.106 because it is necessary that public agencies understand their 
obligation to ensure that children with disabilities who require ESY 
services in order to receive FAPE have the necessary services available 
to them, and that individualized determinations about each disabled 
child's need for ESY services are made through the IEP process.
    Changes: None.
    Comment: One commenter stated that the ESY requirements in Sec.  
300.106 should not be included as part of the State eligibility 
requirements and would be more appropriately included in the definition 
of FAPE in Sec.  300.17.
    Discussion: The definition of FAPE in Sec.  300.17 is taken 
directly from section 602(9) of the Act. We believe the ESY 
requirements are appropriately included under the FAPE requirements as 
a part of a State's eligibility for assistance under Part B of the Act 
because the right of an individual child with a disability to ESY 
services is based on a child's entitlement to FAPE. As a part of the 
State's eligibility for assistance under Part B of the Act, the State 
must make FAPE available to all children with disabilities residing in 
the State in mandated age ranges.
    Changes: None.
    Comment: One commenter recommended removing the word ``only'' in 
Sec.  300.106(a)(2) because it is unduly limiting.
    Discussion: The inclusion of the word ``only'' is intended to be 
limiting. ESY services must be provided ``only'' if a child's IEP Team 
determines, on an individual basis, in accordance with Sec. Sec.  
300.320 through 300.324, that the services are necessary for the 
provision of FAPE to the child. We do not think this language is overly 
restrictive; instead, we think it is necessary for providing 
appropriate parameters to the responsibility of the IEP Team.
    Changes: None.
    Comment: A few commenters suggested revising Sec.  300.106(a)(3)(i) 
to specifically state that, in addition to particular categories of 
disabilities, public agencies may not limit ESY services to particular 
age ranges. Other commenters proposed adding ``preschooler with a 
disability'' to the definition of ESY services in Sec.  300.106(b)(1).
    Discussion: The revisions recommended by the commenters are not 
necessary. Section 300.106(a) clarifies that each public agency must 
ensure that ESY services are available for children with disabilities 
if those services are necessary for the children to receive FAPE. 
Section 300.101(a) clearly states that FAPE must be available to all 
children aged 3 through 21, inclusive, residing in the State, except 
for children ages 3, 4, 5, 18, 19, 20, or 21 to the extent that its 
application to those children would be inconsistent with State law or 
practice, or the order of any court, regarding the provision of public 
education to children of those ages. We do not believe any further 
clarification is necessary.
    Changes: None.
    Comment: One commenter requested that language be added to Sec.  
300.106(b)(1)(i) to clarify that providing ESY services to a child with 
a disability beyond the normal school year includes, but is not limited 
to, before and after regular school hours, on weekends, and during 
regular school vacations.
    Discussion: Typically, ESY services are provided during the summer 
months. However, there is nothing in Sec.  300.106 that would limit a 
public agency from providing ESY services to a child with a disability 
during times other than the summer, such as before and after regular 
school hours or during school vacations, if the IEP Team determines 
that the child requires ESY services during those time periods in order 
to receive FAPE. The regulations give the IEP Team the flexibility to 
determine when ESY services are appropriate, depending on the 
circumstances of the individual child.
    Changes: None.
    Comment: One commenter suggested adding language to Sec.  300.106 
clarifying that ``recoupment and retention'' should not be used as the 
sole criteria for determining the child's eligibility for ESY services.
    Discussion: We do not believe the commenter's suggested change 
should be made. The concepts of ``recoupment'' and ``likelihood of 
regression or retention'' have formed the basis for many standards that 
States use in making ESY eligibility determinations and are derived 
from well-established judicial precedents. (See, for example, Johnson 
v. Bixby Independent School District 4, 921 F.2d 1022 (10th Cir. 1990); 
Crawford v. Pittman, 708 F.2d 1028 (5th Cir. 1983); GARC v. McDaniel, 
716 F.2d 1565 (11th Cir. 1983)). States may use recoupment and 
retention as their sole criteria but they are not limited to these 
standards and have considerable flexibility in determining eligibility 
for ESY services and establishing State standards for making ESY 
determinations. However, whatever standard a State uses must be 
consistent with the individually-oriented requirements of the Act and 
may not limit eligibility for ESY services to children with a 
particular disability category or be applied in a manner that denies 
children with disabilities who

[[Page 46583]]

require ESY services in order to receive FAPE access to necessary ESY 
services.
    Changes: None.
Nonacademic Services (Sec.  300.107)
    Comment: One commenter recommended adding more specific language in 
Sec.  300.107 regarding services and accommodations available for 
nonacademic activities to ensure that children with disabilities are 
fully included in nonacademic activities.
    Discussion: We agree with the commenter. Section 300.107(a), as 
proposed, requires public agencies to take steps to provide nonacademic 
and extracurricular services and activities in a manner necessary to 
afford children with disabilities an equal opportunity to participate 
in those services and activities. In addition, Sec.  300.320(a)(4)(ii), 
consistent with section 614(d)(1)(i)(IV)(bb) of the Act, clarifies that 
an IEP must include a statement of the special education and related 
services and supplementary aids and services to be provided to the 
child to participate in extracurricular and other nonacademic 
activities. We will add language in Sec.  300.107(a) to clarify that 
the steps taken by public agencies to provide access to nonacademic and 
extracurricular services and activities include the provision of 
supplementary aids and services determined appropriate and necessary by 
the child's IEP Team.
    Changes: Additional language has been added in Sec.  300.107(a) to 
clarify that the steps taken by public agencies to provide access to 
nonacademic and extracurricular services and activities include the 
provision of supplementary aids and services determined appropriate and 
necessary by the child's IEP Team.
    Comment: One commenter expressed concern about including 
``nonacademic services'' in Sec.  300.107, because it is not in the 
Act. The commenter stated that services such as athletics, recreational 
activities and clubs, counseling, transportation and health services 
should not be included in the regulations because they may be costly 
and are usually available on a limited basis. One commenter stated that 
it is confusing to include related services in the examples of 
nonacademic services and recommended that they be removed.
    Discussion: The list of nonacademic and extracurricular services 
and activities in Sec.  300.107(b) is not exhaustive. The list provides 
public agencies with examples of services and activities that may 
afford children with disabilities an equal opportunity for 
participation in the services offered to other children of the public 
agency. We disagree that the list of activities causes confusion with 
related services, as we think that the public can easily recognize the 
difference between academic counseling services, for example, that are 
offered to all children, and the type of counseling services that might 
be included in a child's IEP as a related service. For these reasons, 
we believe it is appropriate to maintain the list of nonacademic and 
extracurricular services and activities in Sec.  300.107, including 
those services that are also related services in Sec.  300.34.
    Changes: None.
Physical Education (Sec.  300.108)
    Comment: A few commenters stated that, in some States, physical 
education is not required for every nondisabled child every year and 
this creates situations in which children with disabilities are in 
segregated physical education classes. The commenters recommended that 
the regulations clarify the requirements for public agencies to make 
physical education available to children with disabilities when 
physical education is not available to children without disabilities.
    Discussion: Section 300.108 describes two considerations that a 
public agency must take into account to meet the physical education 
requirements in this section. First, physical education must be made 
available equally to children with disabilities and children without 
disabilities. If physical education is not available to all children 
(i.e., children with and without disabilities), the public agency is 
not required to make physical education available for children with 
disabilities (e.g., a district may provide physical education to all 
children through grade 10, but not to any children in their junior and 
senior years). Second, if physical education is specially designed to 
meet the unique needs of a child with a disability and is set out in 
that child's IEP, those services must be provided whether or not they 
are provided to other children in the agency.
    This is the Department's longstanding interpretation of the 
requirements in Sec.  300.108 and is based on legislative history that 
the intent of Congress was to ensure equal rights for children with 
disabilities. The regulation as promulgated in 1977 was based on an 
understanding that physical education was available to all children 
without disabilities and, therefore, must be made available to all 
children with disabilities. As stated in H. Rpt. No. 94-332, p. 9, 
(1975):

    Special education as set forth in the Committee bill includes 
instruction in physical education, which is provided as a matter of 
course to all non-handicapped children enrolled in public elementary 
and secondary schools. The Committee is concerned that although 
these services are available to and required of all children in our 
school systems, they are often viewed as a luxury for handicapped 
children.

    We agree that Sec.  300.108(a) could be interpreted to mean that 
physical education must be made available to all children with 
disabilities, regardless of whether physical education is provided to 
children without disabilities. We will, therefore, revise paragraph (a) 
to clarify that the public agency has no obligation to provide physical 
education for children with disabilities if it does not provide 
physical education to nondisabled children attending their schools.
    Changes: Section 300.108(a) has been revised as described in the 
preceding paragraph.
Full Education Opportunity Goal (FEOG) (Sec.  300.109)
    Comment: One commenter requested that the regulations clarify how a 
State communicates and monitors the progress of the State's FEOG.
    Discussion: We do not believe it is appropriate to regulate how a 
State communicates and monitors its progress toward the State's FEOG. 
We believe the State should have the flexibility needed to implement 
the provisions of this section and the State is in the best position to 
make this determination.
    Changes: None.
Program Options (Sec.  300.110)
    Comment: A few commenters recommended revising Sec.  300.110 to 
require States to ensure that each public agency have in effect 
policies, procedures, and programs to provide children with 
disabilities the variety of educational programs and services available 
to nondisabled children. The commenters stated that Sec.  300.110 does 
not provide any guidance to educators. A few commenters stated that 
``vocational education is an outdated term'' and proposed replacing it 
with ``career-technical and adult education'' or ``career and technical 
education.''
    Discussion: We do not believe it is necessary to change Sec.  
300.110. Under this provision, States must ensure that public agencies 
take steps to ensure that children with disabilities have access to the 
same program options that are available to nondisabled children in the 
area served by the agency, whatever those options are, and we are not 
aware of any implementation problems with

[[Page 46584]]

this requirement. We believe that it is important that educators 
understand that children with disabilities must have access to the same 
range of programs and services that a public agency provides to 
nondisabled children and that the regulation conveys this point. We 
also do not believe it is necessary to replace the term ``vocational 
education'' with the language recommended by the commenter. The term is 
broad in its meaning and generally accepted and understood in the field 
and, therefore, would encompass such areas as ``career-technical'' and 
``technical education.''
    Changes: None.
    Comment: Several commenters requested that the regulations 
explicitly state that a child with a disability who has not yet 
received a regular high school diploma or ``aged out'' of special 
education may participate in dual enrollment programs and receive 
services in a postsecondary or community-based setting if the IEP Team 
decides it is appropriate.
    Discussion: Section 300.110, consistent with section 612(a)(2) of 
the Act, requires States to ensure that public agencies take steps to 
ensure that children with disabilities have access to the same program 
options that are available to nondisabled children in the area served 
by the agency. This would apply to dual enrollment programs in post-
secondary or community-based settings. Therefore, a State would be 
responsible for ensuring that a public agency that offered dual 
enrollment programs in post-secondary or community-based settings to a 
nondisabled student would have that option available to a student with 
disabilities whose IEP Team determined that such a program would best 
meet the student's needs. However, we do not believe that the Act 
requires public agencies to provide dual enrollment programs in post-
secondary or community-based settings for students with disabilities, 
if such programs are not available to nondisabled secondary school 
students. Therefore, we are not modifying the regulations.
    Changes: None.
Child Find (Sec.  300.111)
    Comment: Several commenters expressed confusion about the child 
find requirements in Sec.  300.111 and the parental consent 
requirements in Sec.  300.300, and requested clarification on whether 
child find applies to private school children and whether LEAs may use 
the consent override procedures for children with disabilities enrolled 
in private schools. Two commenters requested that Sec.  
300.111(a)(1)(i) specify that child find does not apply to private 
school children whose parents refuse consent.
    Discussion: This issue is addressed in the Analysis of Comments and 
Changes section for subpart D in response to comments on Sec.  300.300.
    Changes: None.
    Comment: One commenter recommended retaining current Sec.  
300.125(b) to ensure that the child find requirements are retained for 
parentally-placed private school children.
    Discussion: Current Sec.  300.125(b) was removed from these 
regulations because, under the Act, States are no longer required to 
have State policies and procedures on file with the Secretary. 
Furthermore, the Department believes the requirements in Sec. Sec.  
300.111 and 300.131 adequately ensure that parentally-placed private 
school children are considered in the child find process.
    Changes: None.
    Comment: One commenter requested a definition of the term ``private 
school,'' as used in Sec.  300.111.
    Discussion: The term ``private school'' as used in Sec.  300.111 
means a private elementary school or secondary school, including a 
religious school. The terms elementary school and secondary school are 
defined in subpart A of these regulations. The term private is defined 
in 34 CFR Part 77, which applies to this program, and we see no need to 
include those definitions here.
    Changes: None.
    Comment: One commenter requested that the child find requirements 
in Sec.  300.111(c)(2) include homeless children.
    Discussion: Homeless children are already included in the child 
find requirements. Section 300.111(a)(1)(i) clarifies that the State 
must have policies and procedures to ensure that children with 
disabilities who are homeless and who are in need of special education 
and related services, are identified, located, and evaluated. No 
further clarification is needed.
    Changes: None.
    Comment: A few commenters recommended including in Sec.  300.111 
the requirements in current Sec.  300.125(c), regarding child find for 
children from birth through age two when the SEA and lead agency for 
the Part C program are different. The commenters stated that this will 
ensure that children with disabilities from birth through age two are 
eligible to participate in child find activities when the Part C lead 
agency is not the SEA.
    Discussion: The Department does not believe it is necessary to 
retain the language in current Sec.  300.125(c). The child find 
requirements in Sec.  300.111 have traditionally been interpreted to 
mean identifying and evaluating children beginning at birth. While 
child find under Part C of the Act overlaps, in part, with child find 
under Part B of the Act, the coordination of child find activities 
under Part B and Part C is an implementation matter that is best left 
to each State. Nothing in the Act or these regulations prohibits a Part 
C lead agency's participation, with the agreement of the SEA, in the 
actual implementation of child find activities for infants and toddlers 
with disabilities.
    Changes: None.
    Comment: One commenter recommended removing Sec.  300.111(c) 
because child find for children with developmental delays, older 
children progressing from grade to grade, and highly mobile children is 
not specifically required by the Act.
    Discussion: The changes requested by the commenter cannot be made 
because they are inconsistent with the Act. Section 300.111(a)(1)(i), 
consistent with section 612(a)(3)(A) of the Act, explicitly requires 
that all children with disabilities residing in the State are 
identified, located, and evaluated. This includes children suspected of 
having developmental delays, as defined in section 602(3)(B) of the 
Act. We recognize that it is difficult to locate, identify, and 
evaluate highly mobile and migrant children with disabilities. However, 
we strongly believe it is important to stress in these regulations that 
the States' child find responsibilities in Sec.  300.111 apply equally 
to such children. We also believe it is important to clarify that a 
child suspected of having a disability but who has not failed, is 
making academic progress, and is passing from grade to grade must be 
considered in the child find process as any other child suspected of 
having a disability. As noted earlier in the discussion regarding Sec.  
300.101, paragraph (c)(1) of Sec.  300.111 has been revised to clarify 
that children do not have to fail or be retained in a course or grade 
in order to be considered for special education and related services.
    Changes: None.
    Comment: One commenter requested that Sec.  300.111 explicitly 
require that children in residential facilities be included in the 
public agency's child find process.
    Discussion: We believe Sec.  300.111(a), consistent with section 
612(a)(3)(A) of the Act, clarifies that the State must ensure that all 
children with disabilities residing in the State are identified, 
located, and evaluated. This would

[[Page 46585]]

include children in residential facilities. No further clarification is 
necessary.
    Changes: None.
Individualized Education Programs (IEP) (Sec.  300.112)
    Comment: One commenter objected to including the reference to Sec.  
300.300(b)(3)(ii) in Sec.  300.112, stating that it is not necessary to 
ensure compliance with the requirement for an IEP or IFSP to be 
developed, reviewed, and revised for each child with a disability.
    Discussion: Section 300.300(b)(3)(ii) states that if a parent 
refuses to consent to the initial provision of special education and 
related services, or the parent fails to respond to a request to 
provide consent for the initial provision of special education and 
related services, the public agency is not required to convene an IEP 
meeting or develop an IEP for the child. It is necessary to include 
this reference in Sec.  300.112 to clarify the circumstances under 
which a public agency is not required to develop an IEP for an eligible 
child with a disability.
    Changes: None.
Routine Checking of Hearing Aids and External Components of Surgically 
Implanted Medical Devices (Sec.  300.113)
    Comment: None.
    Discussion: New Sec.  300.113 is addressed in the Analysis of 
Comments and Changes section for subpart A in response to comments on 
Sec.  300.34(b).
    Changes: We have added new Sec.  300.113 to cover the routine 
checking of hearing aids and external components of surgically 
implanted medical devices. The requirement for the routine checking of 
hearing aids has been removed from proposed Sec.  300.105 and included 
in new Sec.  300.113(a). The requirement for routine checking of an 
external component of a surgically implanted medical device has been 
added as new Sec.  300.113(b). The requirements for assistive 
technology devices and services remain in Sec.  300.105 and the heading 
has been changed to reflect this change. We have also included a 
reference to new Sec.  300.113(b) in new Sec.  300.34(b)(2).

Least Restrictive Environment (LRE)

LRE Requirements (Sec.  300.114)
    Comment: One commenter recommended including language in the 
regulations that respects and safeguards parental involvement and 
protects the rights of children with disabilities to be educated in the 
least restrictive environment (LRE).
    Discussion: We believe that the LRE requirements in Sec. Sec.  
300.114 through 300.120 address the rights of children with 
disabilities to be educated in the LRE, as well as safeguard parental 
rights. Section 300.114, consistent with section 612(a)(5) of the Act, 
requires each public agency to ensure that, to the maximum extent 
appropriate, children with disabilities are educated with children who 
are not disabled. Further, Sec.  300.116 ensures that a child's parent 
is included in the group of persons making the decision about the 
child's placement.
    Changes: None.
    Comment: A number of comments were received regarding Sec.  
300.114(a)(2)(ii), which requires each public agency to ensure that the 
removal of children with disabilities from the regular educational 
environment occurs only when the nature or severity of the disability 
is such that the education in regular classes with the use of 
supplementary aids and services cannot be achieved satisfactorily. Many 
commenters recommended replacing ``regular educational environment'' 
with ``regular classroom'' because ``regular classroom'' is less likely 
to be misinterpreted to mean any kind of contact with children without 
disabilities. A few commenters expressed concern that using the phrase 
``regular educational environment'' weakens the LRE protections. 
Another commenter recommended the regulations clarify that the 
``regular educational environment'' means the participation of children 
with disabilities with their nondisabled peers in regular classrooms 
and other educational settings including nonacademic settings.
    Discussion: Section 300.114(a)(2)(ii) follows the specific language 
in section 612(a)(5)(A) of the Act and reflects previous regulatory 
language. This requirement is longstanding. We do not believe the 
language should be revised, as recommended by the commenters, because 
``regular educational environment'' encompasses regular classrooms and 
other settings in schools such as lunchrooms and playgrounds in which 
children without disabilities participate.
    Changes: None.
    Comment: One commenter requested revising Sec.  300.114(a)(2) to 
require a public agency to document and justify placements of children 
with disabilities in environments outside the general education 
classroom.
    Discussion: The additional language requested by the commenter is 
not necessary and would impose unwarranted paperwork burdens on 
schools. Section 300.320(a)(5), consistent with section 
614(d)(1)(A)(i)(V) of the Act, already requires a child's IEP to 
include an explanation of the extent, if any, to which the child will 
not participate with nondisabled children in the regular class. As 
noted previously, parents are a part of the group making placement 
decisions. We believe these provisions provide sufficient safeguards on 
the placement process.
    Changes: None.
    Comment: One commenter stated that the LRE requirements are often 
misinterpreted to be a mandate to include all children who are deaf or 
hard of hearing in their local schools. The commenter stated that the 
placement decision for a child who is deaf or hard of hearing should be 
based on the child's communication needs and must be the environment 
that presents the fewest language and communication barriers to the 
child's cognitive, social, and emotional development. Some commenters 
cautioned that inclusive settings might be inappropriate for a child 
who is deaf and who requires communication support and stated that the 
LRE should be the place where a child can be educated successfully. A 
few commenters requested the regulations clarify that all placement 
options must remain available for children who are deaf.
    One commenter recommended strengthening the requirement for a 
continuum of alternative placements and stated that a full range of 
placement options is necessary to meet the needs of all children with 
visual impairments. Another commenter urged the Department to ensure 
that children with low-incidence disabilities (including children who 
are deaf, hard of hearing, or deaf-blind) have access to appropriate 
educational programming and services at all times, including center-
based schools, which may be the most appropriate setting for children 
with low-incidence disabilities.
    Discussion: The LRE requirements in Sec. Sec.  300.114 through 
300.117 express a strong preference, not a mandate, for educating 
children with disabilities in regular classes alongside their peers 
without disabilities. Section 300.114(a)(2), consistent with section 
612(a)(5)(A) of the Act, requires that, to the maximum extent 
appropriate, children with disabilities are educated with children who 
are not disabled, and that special classes, separate schooling, or 
other removal of children with disabilities from the regular 
educational environment occurs only when the nature or severity of the 
disability is such that education in regular classes with the use of 
supplementary aids and

[[Page 46586]]

services cannot be achieved satisfactorily.
    With respect to the recommendation that the placement for children 
who are deaf or hard of hearing be based on the child's communication 
needs, Sec.  300.324(a)(2)(iv), consistent with section 
614(d)(3)(B)(iv) of the Act, clarifies that the IEP Team, in developing 
the IEP for a child who is deaf or hard of hearing, must consider the 
child's language and communication needs, opportunities for direct 
communication with peers and professional personnel in the child's 
language and communication mode, and the child's academic level and 
full range of needs, including opportunities for direct instruction in 
the child's language and communication mode.
    With respect to strengthening the continuum of alternative 
placement requirements, nothing in the LRE requirements would prevent 
an IEP Team from making a determination that placement in the local 
school is not appropriate for a particular child. Section 300.115 
already requires each public agency to ensure that a continuum of 
alternative placements is available to meet the needs of children with 
disabilities for special education and related services. We believe 
this adequately addresses the commenter's concern.
    The process for determining the educational placement for children 
with low-incidence disabilities (including children who are deaf, hard 
of hearing, or deaf-blind) is the same process used for determining the 
educational placement for all children with disabilities. That is, each 
child's educational placement must be determined on an individual case-
by-case basis depending on each child's unique educational needs and 
circumstances, rather than by the child's category of disability, and 
must be based on the child's IEP. We believe the LRE provisions are 
sufficient to ensure that public agencies provide low-incidence 
children with disabilities access to appropriate educational 
programming and services in the educational setting appropriate to meet 
the needs of the child in the LRE.
    Changes: None.
    Comment: One commenter requested that the regulations clarify that 
children with disabilities who are suspended or expelled from school 
are entitled to be educated with children who are not disabled. The 
commenter stated that this clarification is necessary to reduce the use 
of home instruction as a placement option for these children.
    Discussion: The Act does not require that children with 
disabilities suspended or expelled for disciplinary reasons continue to 
be educated with children who are not disabled during the period of 
their removal. We believe it is important to ensure that children with 
disabilities who are suspended or expelled from school receive 
appropriate services, while preserving the flexibility of school 
personnel to remove a child from school, when necessary, and to 
determine how best to address the child's needs during periods of 
removal and where services are to be provided to the child during such 
periods of removals, including, if appropriate, home instruction. 
Sections 300.530 through 300.536 address the options available to 
school authorities in disciplining children with disabilities and set 
forth procedures that must be followed when taking disciplinary actions 
and in making decisions regarding the educational services that a child 
will receive and the location in which services will be provided. We 
believe including the language recommended by the commenter would 
adversely restrict the options available to school personnel for 
disciplining children with disabilities and inadvertently tie the hands 
of school personnel in responding quickly and effectively to serious 
child behaviors and in creating safe classrooms for all children.
    Changes: None.
Additional Requirement--State Funding Mechanism (Sec.  300.114(b))
    Comment: One commenter stated that Sec.  300.114(b) does not 
adequately address the requirements for funding mechanisms relative to 
the LRE requirements and requested that note 89 of the Conf. Rpt. be 
included in the regulations.
    Discussion: Section 300.114(b) incorporates the language from 
section 612(a)(5)(B) of the Act and prohibits States from maintaining 
funding mechanisms that violate the LRE provisions. We do not believe 
it is necessary to provide additional clarification in the regulations. 
While we agree with the commenter that note 89 of the Conf. Rpt. makes 
clear Congress' intent that State funding mechanisms support the LRE 
requirements and do not provide an incentive or disincentive for 
certain placement decisions, we believe the requirements in Sec.  
300.114(b) accurately capture the essence of the Conf. Rpt. and 
including additional language in this paragraph is not needed.
    Changes: None.
    Comment: One commenter urged the Department to impose financial 
sanctions on States that continue to base their funding on certain 
placement decisions. A few commenters suggested changing the 
requirement in Sec.  300.114(b)(2) for States to provide an assurance 
that the State will revise its funding mechanism ``as soon as 
feasible'' to ``no later than the start of the 2006-2007 school year.''
    Discussion: Section 300.114(b)(2) incorporates the language in 
section 612(a)(5)(B)(ii) of the Act, and requires that if a State does 
not have policies and procedures to ensure that the State's funding 
mechanism does not violate the LRE requirements, the State must provide 
the Secretary an assurance that the State will revise its funding 
mechanism as soon as feasible. We do not believe it is necessary to 
include in these regulations a specific timeline for a State to revise 
its funding mechanism, if required to do so pursuant to 300.114(b)(2). 
We believe the statutory language ``as soon as feasible,'' while 
providing flexibility as to how each State meets the requirement, is 
sufficient to ensure States' compliance with this requirement.
    Further, we believe the enforcement options in Sec.  300.604 give 
the Secretary sufficient means to address a State's noncompliance with 
the requirements in Sec.  300.114(b)(2). Section 300.604 describes the 
enforcement options available to the Secretary if the Secretary 
determines that a State needs assistance or intervention implementing 
the requirements of Part B of the Act, or that there is a substantial 
failure to comply with any condition of an SEA's or LEA's eligibility 
under Part B of the Act. Enforcement options available to the Secretary 
include, among others, recovery of funds or withholding, in whole or in 
part, any further payments to the State under Part B of the Act.
    Changes: None.
Continuum of Alternative Placements (Sec.  300.115)
    Comment: One commenter recommended revising Sec.  300.115 so that 
only the specific allowable alternative settings listed in the 
definition of special education in new Sec.  300.39 (proposed Sec.  
300.38) (i.e., classroom, home, hospitals, institutions) are permitted.
    Discussion: Section 300.115 requires each public agency to ensure 
that a continuum of alternative placements (including instruction in 
regular classes, special classes, special schools, home instruction, 
and instruction in hospitals and institutions) is available to meet the 
needs of children with disabilities for special education and related 
services. The list of placement options in this section only expands 
the settings

[[Page 46587]]

mentioned in new Sec.  300.39 (proposed Sec.  300.38) by recognizing 
the various types of classrooms and settings for classrooms in which 
special education is provided. This continuum of alternative placements 
is intended to ensure that a child with a disability is served in a 
setting where the child can be educated successfully in the LRE.
    Changes: None.
    Comment: One commenter suggested adding language to the regulations 
to clarify that difficulty recruiting and hiring qualified special 
education teachers does not relieve an LEA of its obligation to ensure 
a continuum of alternative placements and to offer a full range of 
services to meet the needs of children with disabilities.
    Discussion: We do not believe it is necessary to include the 
language suggested by the commenter, because Sec.  300.116 is 
sufficiently clear that placement decisions must be based on the 
individual needs of each child with a disability. Public agencies, 
therefore, must not make placement decisions based on a public agency's 
needs or available resources, including budgetary considerations and 
the ability of the public agency to hire and recruit qualified staff.
    Changes: None.
    Comment: A few commenters recommended revising Sec.  300.115(a) to 
clarify that the continuum of alternative placements must be available 
to eligible preschool children with disabilities.
    Discussion: It is not necessary to revise Sec.  300.115(a) in the 
manner suggested by the commenters. Section 300.116 clearly states that 
the requirements for determining the educational placement of a child 
with a disability include preschool children with disabilities and that 
such decisions must be made in conformity with the LRE provisions in 
Sec. Sec.  300.114 through 300.118. This includes ensuring that a 
continuum of services is available to meet the needs of children with 
disabilities for special education and related services.
    Changes: None.
Placements (Sec.  300.116)
    Comment: One commenter recommended the regulations clarify that the 
regular class must always be considered the first placement option.
    Discussion: We do not believe it is necessary to include the 
clarification recommended by the commenter. Section 300.116 clarifies 
that placement decisions must be made in conformity with the LRE 
provisions, and Sec.  300.114(a)(2) already requires that special 
classes, separate schooling or other removal of children with 
disabilities from the regular education environment only occurs if the 
nature or severity of the disability is such that education in regular 
classes with the use of supplementary aids and services cannot be 
achieved satisfactorily.
    Changes: None.
    Comment: A few commenters recommended revising Sec.  300.116 to 
require that children with disabilities have access to, and make 
progress in, the general curriculum, and that children receive the 
special education and related services included in their IEPs.
    Discussion: The issues raised by the commenters are already 
addressed elsewhere in the regulations. The IEP requirements in Sec.  
300.320(a), consistent with section 614(d) of the Act, clarify that 
children with disabilities must be provided special education and 
related services and needed supplementary aids and services to enable 
them to be involved in and make progress in the general curriculum. In 
addition, Sec.  300.323(c)(2) requires that, as soon as possible 
following the development of an IEP, special education and related 
services are made available to the child in accordance with the child's 
IEP. We believe that these regulations adequately address the 
commenters' concerns, and that no further clarification is necessary.
    Changes: None.
    Comment: One commenter stated that the placement requirements in 
Sec.  300.116 encourage school districts to assign a child with a 
disability to a particular place or setting, rather than providing a 
continuum of increasingly individualized and intensive services. The 
commenter suggested requiring that the continuum of alternative 
placements include a progressively more intensive level of 
individualized, scientifically based instruction and related services, 
both with increased time and lower pupil-teacher ratio, in addition to 
regular instruction with supplementary aids and services.
    Discussion: The overriding rule in Sec.  300.116 is that placement 
decisions for all children with disabilities must be made on an 
individual basis and ensure that each child with a disability is 
educated in the school the child would attend if not disabled unless 
the child's IEP requires some other arrangement. However, the Act does 
not require that every child with a disability be placed in the regular 
classroom regardless of individual abilities and needs. This 
recognition that regular class placement may not be appropriate for 
every child with a disability is reflected in the requirement that LEAs 
make available a range of placement options, known as a continuum of 
alternative placements, to meet the unique educational needs of 
children with disabilities. This requirement for the continuum 
reinforces the importance of the individualized inquiry, not a ``one 
size fits all'' approach, in determining what placement is the LRE for 
each child with a disability. The options on this continuum must 
include the alternative placements listed in the definition of special 
education under Sec.  300.38 (instruction in regular classes, special 
classes, special schools, home instruction, and instruction in 
hospitals and institutions). These options must be available to the 
extent necessary to implement the IEP of each child with a disability. 
The group determining the placement must select the placement option on 
the continuum in which it determines that the child's IEP can be 
implemented in the LRE. Any alternative placement selected for the 
child outside of the regular educational environment must include 
appropriate opportunities for the child to interact with nondisabled 
peers, to the extent appropriate to the needs of the children, 
consistent with Sec.  300.114(a)(2)(i).
    Because placement decisions must be determined on an individual 
case-by-case basis depending on each child's unique educational needs 
and circumstances and based on the child's IEP, we do not believe it is 
appropriate to require in the regulations that the continuum of 
alternative placements include a progressively more intensive level of 
individualized scientifically based instruction and related services as 
suggested by the commenter.
    Changes: None.
    Comment: We received a number of comments regarding the phrase, 
``unless the parent agrees otherwise'' in proposed Sec.  300.116(b)(3) 
and (c). As proposed, Sec.  300.116(b)(3) requires the child's 
placement to be as close as possible to the child's home, ``unless the 
parent agrees otherwise;'' and Sec.  300.116(c) requires that, unless 
the child's IEP requires some other arrangement, the child must be 
educated in the school that he or she would attend if nondisabled, 
``unless the parent agrees otherwise.'' Many commenters requested 
removing the phrase ``unless the parent agrees otherwise,'' because it 
is not included in section 612(a)(5) of the Act and is not necessary to 
clarify that a parent may place his or her child in a charter, magnet, 
or other specialized school without violating the LRE requirements. 
Other commenters suggested removing the phrase and clarifying that a 
decision by the child's parent to send the child to a charter, magnet, 
or other specialized

[[Page 46588]]

school is not a violation of the LRE requirements.
    Several commenters stated that including the phrase undermines the 
statutory requirement for children with disabilities to be placed in 
the LRE based on their IEPs and allows more restrictive placements 
based on parental choice. Many commenters interpreted this phrase to 
mean that placement is a matter of parental choice even in public 
school settings and stated that a child's LRE rights should not be 
overridden by parental choice. One commenter stated that the phrase 
might intimidate parents into accepting inappropriate placements.
    A few commenters stated that this phrase is unnecessary because the 
Act already requires parents to be involved in placement decisions, and 
expressed concern that including this phrase in the regulations could 
lead to confusion and litigation. One commenter stated that the phrase 
suggests that additional consent is required if the parent chooses to 
send the child to a charter, magnet, or other specialized school.
    Discussion: The phrase ``unless the parent agrees otherwise'' in 
proposed Sec.  300.116(b)(3) and (c) was added to clarify that a parent 
may send the child to a charter, magnet, or other specialized school 
without violating the LRE mandate. A parent has always had this option; 
a parent who chooses this option for the child does not violate the LRE 
mandate as long as the child is educated with his or her peers without 
disabilities to the maximum extent appropriate. However, we agree that 
this phrase is unnecessary, confusing, and may be misunderstood to mean 
that parents have a right to veto the placement decision made by the 
group of individuals in Sec.  300.116(a)(1). We will, therefore, remove 
the phrase.
    Changes: We have removed the phrase ``unless the parent agrees 
otherwise'' in Sec.  300.116(b)(3) and (c).
    Comment: One commenter disagreed with the requirement in Sec.  
300.116(b)(3) that placements be as close as possible to the child's 
home, stating that the requirement is administratively prohibitive and 
beyond the scope of the Act. The commenter stated that it is not 
possible for school districts to provide classes for children with all 
types and degrees of disabilities in each school building. The 
commenter stated that ``placement'' should be understood as the set of 
services outlined in a child's IEP, and recommended that school 
districts be permitted to provide these services in the school building 
that is most administratively feasible.
    Discussion: We do not believe the requirement imposes unduly 
restrictive administrative requirements. The Department has 
consistently maintained that a child with a disability should be 
educated in a school as close to the child's home as possible, unless 
the services identified in the child's IEP require a different 
location. Even though the Act does not mandate that a child with a 
disability be educated in the school he or she would normally attend if 
not disabled, section 612(a)(5)(A) of the Act presumes that the first 
placement option considered for each child with a disability is the 
regular classroom in the school that the child would attend if not 
disabled, with appropriate supplementary aids and services to 
facilitate such placement. Thus, before a child with a disability can 
be placed outside of the regular educational environment, the full 
range of supplementary aids and services that could be provided to 
facilitate the child's placement in the regular classroom setting must 
be considered. Following that consideration, if a determination is made 
that a particular child with a disability cannot be educated 
satisfactorily in the regular educational environment, even with the 
provision of appropriate supplementary aids and services, that child 
could be placed in a setting other than the regular classroom.
    Although the Act does not require that each school building in an 
LEA be able to provide all the special education and related services 
for all types and severities of disabilities, the LEA has an obligation 
to make available a full continuum of alternative placement options 
that maximize opportunities for its children with disabilities to be 
educated with nondisabled peers to the extent appropriate. In all 
cases, placement decisions must be individually determined on the basis 
of each child's abilities and needs and each child's IEP, and not 
solely on factors such as category of disability, severity of 
disability, availability of special education and related services, 
configuration of the service delivery system, availability of space, or 
administrative convenience.
    Changes: None.
    Comment: One commenter requested clarifying the difference, if any, 
between ``placement'' and ``location.'' One commenter recommended 
requiring the child's IEP to include a detailed explanation of why a 
child's educational needs cannot be met in the location requested by 
the parent when the school district opposes the parent's request for 
services to be provided to the child in the school that the child would 
attend if the child did not have a disability.
    Discussion: Historically, we have referred to ``placement'' as 
points along the continuum of placement options available for a child 
with a disability, and ``location'' as the physical surrounding, such 
as the classroom, in which a child with a disability receives special 
education and related services. Public agencies are strongly encouraged 
to place a child with a disability in the school and classroom the 
child would attend if the child did not have a disability. However, a 
public agency may have two or more equally appropriate locations that 
meet the child's special education and related services needs and 
school administrators should have the flexibility to assign the child 
to a particular school or classroom, provided that determination is 
consistent with the decision of the group determining placement. It 
also should be noted that, under section 615(b)(3) of the Act, a parent 
must be given written prior notice that meets the requirements of Sec.  
300.503 a reasonable time before a public agency implements a proposal 
or refusal to initiate or change the identification, evaluation, or 
educational placement of the child, or the provision of FAPE to the 
child. Consistent with this notice requirement, parents of children 
with disabilities must be informed that the public agency is required 
to have a full continuum of placement options, as well as about the 
placement options that were actually considered and the reasons why 
those options were rejected. While public agencies have an obligation 
under the Act to notify parents regarding placement decisions, there is 
nothing in the Act that requires a detailed explanation in children's 
IEPs of why their educational needs or educational placements cannot be 
met in the location the parents' request. We believe including such a 
provision would be overly burdensome for school administrators and 
diminish their flexibility to appropriately assign a child to a 
particular school or classroom, provided that the assignment is made 
consistent with the child's IEP and the decision of the group 
determining placement.
    Changes: None.
    Comment: One commenter recommended including in the regulations the 
Department's policy that a child's placement in an educational program 
that is substantially and materially similar to the former placement is 
not a change in placement.
    Discussion: As stated by the commenter, it is the Department's 
longstanding position that maintaining a child's placement in an 
educational


[[Continued on page 46589]]


From the Federal Register Online via GPO Access [wais.access.gpo.gov]
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[[pp. 46589-46638]] Assistance to States for the Education of Children With 
Disabilities and Preschool Grants for Children With Disabilities

[[Continued from page 46588]]

[[Page 46589]]

program that is substantially and materially similar to the former 
placement is not a change in placement. We do not believe further 
clarification is necessary in the regulations, however, as the 
distinction seems to be commonly accepted and understood.
    Changes: None.
    Comment: Many commenters suggested requiring a public agency to pay 
all costs associated with providing FAPE for a child in a private 
preschool, including paying for tuition, transportation and such 
special education, related services and supplementary aids and services 
as the child needs, if an inclusive preschool is the appropriate 
placement for a child, and there is no inclusive public preschool that 
can provide all the appropriate services and supports.
    Discussion: The LRE requirements in Sec. Sec.  300.114 through 
300.118 apply to all children with disabilities, including preschool 
children who are entitled to FAPE. Public agencies that do not operate 
programs for preschool children without disabilities are not required 
to initiate those programs solely to satisfy the LRE requirements of 
the Act. Public agencies that do not have an inclusive public preschool 
that can provide all the appropriate services and supports must explore 
alternative methods to ensure that the LRE requirements are met. 
Examples of such alternative methods might include placement options in 
private preschool programs or other community-based settings. Paying 
for the placement of qualified preschool children with disabilities in 
a private preschool with children without disabilities is one, but not 
the only, option available to public agencies to meet the LRE 
requirements. We believe the regulations should allow public agencies 
to choose an appropriate option to meet the LRE requirements. However, 
if a public agency determines that placement in a private preschool 
program is necessary as a means of providing special education and 
related services to a child with a disability, the program must be at 
no cost to the parent of the child.
    Changes: None.
    Comment: One commenter suggested clarifying that if a child's 
behavior in the regular classroom significantly impairs the learning of 
the child or others, that placement would not meet the child's needs 
and would not be appropriate for that child.
    Discussion: Although the Act places a strong preference in favor of 
educating children with disabilities in the regular classroom with 
appropriate aids and supports, a regular classroom placement is not 
appropriate for every child with a disability. Placement decisions are 
made on a case-by-case basis and must be appropriate for the needs of 
the child. The courts have generally concluded that, if a child with a 
disability has behavioral problems that are so disruptive in a regular 
classroom that the education of other children is significantly 
impaired, the needs of the child with a disability generally cannot be 
met in that environment. However, before making such a determination, 
LEAs must ensure that consideration has been given to the full range of 
supplementary aids and services that could be provided to the child in 
the regular educational environment to accommodate the unique needs of 
the child with a disability. If the group making the placement decision 
determines, that even with the provision of supplementary aids and 
services, the child's IEP could not be implemented satisfactorily in 
the regular educational environment, that placement would not be the 
LRE placement for that child at that particular time, because her or 
his unique educational needs could not be met in that setting. (See 
Roncker v. Walter, 700 F. 2d 1058 (6th Cir. 1983); Devries v. Fairfax 
County School Bd., 882 F. 2d 876, 879 (4th Cir. 1989); Daniel R.R. v. 
State Bd. of Educ., 874 F. 2d 1036 (5th Cir. 1989); and A.W. v. 
Northwest R-1 School Dist., 813 F.2d 158, 163 (8th Cir. 1987).)
    Changes: None.
Nonacademic Settings (Sec.  300.117)
    Comment: One commenter requested that the regulations clarify that 
children with disabilities should receive the supplementary aids and 
services necessary to ensure their participation in nonacademic and 
extracurricular services and activities.
    Discussion: Section 300.117, consistent with section 612(a)(5) of 
the Act, requires that children with disabilities participate in 
nonacademic and extracurricular services and activities with their 
nondisabled peers to the maximum extent appropriate to the needs of the 
child. The Act places great emphasis on ensuring that children with 
disabilities are educated, to the maximum extent appropriate, with 
children who are nondisabled and are included in nonacademic and 
extracurricular services and activities as appropriate to the needs of 
the child. We believe the public agency has an obligation to provide a 
child with a disability with appropriate aids, services, and other 
supports, as determined by the IEP Team, if necessary to ensure the 
child's participation in nonacademic and extracurricular services and 
activities. Therefore, we will clarify in Sec.  300.117 that each 
public agency must ensure that children with disabilities have the 
supplementary aids and services determined necessary by the child's IEP 
Team for the child to participate in nonacademic and extracurricular 
services and activities to the maximum extent appropriate to the needs 
of that child.
    Changes: We have added language to Sec.  300.117 to ensure that 
children with disabilities receive the supplementary aids and services 
needed to participate in nonacademic and extracurricular services and 
activities.
Technical Assistance and Training Activities (Sec.  300.119)
    Comment: One commenter requested that the regulations define 
``training.''
    Discussion: The Department intends the term ``training,'' as used 
in Sec.  300.119, to have its generally accepted meaning. Training is 
generally agreed to be any activity used to enhance one's skill or 
knowledge to acquire, maintain, and advance knowledge, skills, and 
abilities. Given the general understanding of the term ``training,'' we 
do not believe it is necessary to regulate on this matter.
    Changes: None.

Children in Private Schools

Children With Disabilities Enrolled by Their Parents in Private Schools
General Comments
    Comment: Many comments were received regarding the parentally-
placed private school children with disabilities requirements in 
Sec. Sec.  300.130 through 300.144. Many commenters supported the 
changes to the regulations and believed the regulations simplify the 
processes for both private schools and public schools. Numerous 
commenters, however, expressed concern regarding the implementation of 
the private school requirements.
    Many of the commenters expressed concern with the requirement that 
the LEAs where private elementary schools and secondary schools are 
located are now responsible for child find, individual evaluations, and 
the provision of services for children with disabilities enrolled by 
their parents in private schools located in the LEA. These commenters 
described the private school provisions in the Act and the NPRM as 
burdensome and difficult to understand.
    Discussion: The revisions to the Act in 2004 significantly changed 
the obligation of States and LEAs to children with disabilities 
enrolled by their parents in private elementary

[[Page 46590]]

schools and secondary schools. Section 612(a)(10)(A) of the Act now 
requires LEAs in which the private schools are located, rather than the 
LEAs in which the parents of such children reside, to conduct child 
find and provide equitable services to parentally-placed private school 
children with disabilities.
    The Act provides that, in calculating the proportionate amount of 
Federal funds under Part B of the Act that must be spent on parentally-
placed private school children with disabilities, the LEAs where the 
private schools are located, after timely and meaningful consultation 
with representatives of private elementary schools and secondary 
schools and representatives of parents of parentally-placed private 
school children with disabilities, must conduct a thorough and complete 
child find process to determine the number of parentally-placed 
children with disabilities attending private elementary schools and 
secondary schools located in the LEAs. In addition, the obligation of 
the LEA to spend a proportionate amount of funds to provide services to 
children with disabilities enrolled by their parents in private schools 
is now based on the total number of children with disabilities who are 
enrolled in private schools located in the LEA whether or not the 
children and their parents reside in the LEA.
    We believe these regulations and the additional clarification 
provided in our responses to comments on Sec. Sec.  300.130 through 
300.144 will help States and LEAs to better understand their 
obligations in serving children with disabilities placed by their 
parents in private elementary schools and secondary schools. In 
addition, the Department has provided additional guidance on 
implementing the parentally-placed private school requirements on the 
Department's Web site. We also are including in these regulations 
Appendix B to Part 300--Proportionate Share Calculation to assist LEAs 
in calculating the proportionate amount of Part B funds that they must 
expend on parentally-placed private school children with disabilities 
attending private elementary schools and secondary schools located in 
the LEA.
    Changes: We have added a reference to Appendix B in Sec.  
300.133(b).
    Comment: Several commenters expressed concern that Sec. Sec.  
300.130 through 300.144 include requirements that go beyond the Act and 
recommended that any requirement beyond what is statutory be removed 
from these regulations.
    Discussion: In general, the regulations track the language in 
section 612(a)(10)(A) of the Act regarding children enrolled in private 
schools by their parents. However, we determined that including 
clarification of the statutory language on parentally-placed private 
school children with disabilities in these regulations would be 
helpful. The volume of comments received concerning this topic confirm 
the need to regulate in order to clarify the statutory language and to 
help ensure compliance with the requirements of the Act.
    Changes: None.
    Comment: Some commenters requested that the regulations provide 
flexibility to States to provide services to parentally-placed private 
school children with disabilities beyond what they would be able to do 
with the proportionate share required under the Act. A few of these 
commenters requested that those States already providing an individual 
entitlement to special education and related services or providing a 
full range of special education services to parentally-placed private 
school children be deemed to have met the requirements in Sec. Sec.  
300.130 through 300.144 and be permitted to continue the State's 
current practices. One commenter specifically recommended allowing 
States that provide additional rights or services to parentally-placed 
private school children with disabilities (including FAPE under section 
612 of the Act and the procedural safeguards under section 615 of the 
Act), the option of requesting that the Secretary consider alternate 
compliance with these requirements that would include evidence and 
supporting documentation of alternate procedures under State law to 
meet all the requirements in Sec. Sec.  300.130 through 300.144.
    A few commenters requested that the child find and equitable 
participation requirements should not apply in States with dual 
enrollment provisions where children with disabilities who are 
parentally-placed in private elementary schools or secondary schools 
are also enrolled in public schools for special education and have IEPs 
and retain their due process rights.
    Discussion: The Act in no way prohibits States or LEAs from 
spending additional State or local funds to provide special education 
or related services for parentally-placed private school children with 
disabilities in excess of those required in Sec.  300.133 and section 
612(a)(10)(A) of the Act, consistent with State law or administrative 
procedures. The Act, however, does not provide the Secretary with the 
authority to waive, in whole or in part, the parentally-placed private 
school requirements in Sec. Sec.  300.130 through 300.144 for States or 
LEAs that spend State or local funds to provide special education or 
related services beyond those required under Part B of the Act. The 
Secretary, therefore, cannot consider alternative compliance with the 
parentally-placed private school provisions in the Act and these 
regulations or consider States and LEAs that use State and local funds 
to provide services to parentally-placed private school children with 
disabilities beyond the required proportionate share of Federal Part B 
funds, including providing FAPE to such children, to have met the 
statutory and regulatory requirements governing parentally-placed 
private school children with disabilities. States and LEAs must meet 
the requirements in the Act and these regulations.
    With regard to the comment requesting that the child find and 
equitable participation requirements for parentally-placed private 
school children with disabilities not apply in States with dual 
enrollment, there is no exception in the Act to the child find and 
equitable participation requirements of section 612(a)(10)(A) for 
States that permit dual enrollment of a child at a parent's discretion. 
Therefore, there is no basis to regulate to provide such an exception. 
It would be a matter of State or local discretion to decide whether to 
have a dual enrollment policy and, if established, how it would be 
implemented. Whether dual enrollment alters the rights of parentally-
placed private school children with disabilities under State law is a 
State matter. There is nothing, however, in Part B of the Act that 
would prohibit a State from requiring dual enrollment as a condition 
for a parentally-placed private school child with a disability to be 
eligible for services from a public agency. As long as States and LEAs 
meet the requirements in Sec. Sec.  300.130 through 300.144, the local 
policy covering enrollment is a matter of State and local discretion.
    Changes: None.
    Comment: Several commenters expressed concern regarding the 
applicability of the child find and equitable participation 
requirements in Sec. Sec.  300.130 through 300.144 for children with 
disabilities who reside in one State and are enrolled by their parents 
in private elementary schools or secondary schools located in another 
State. These commenters recommended that the regulations clarify 
whether the LEA in the State where the private elementary school or 
secondary school is located or the LEA in the State where the child

[[Page 46591]]

resides is responsible for conducting child find (including individual 
evaluations and reevaluations), and providing and paying for equitable 
services for children who are enrolled by their parents in private 
elementary schools or secondary schools.
    Discussion: Section 612(a)(10)(A)(i)(II) of the Act provides that 
the LEA where the private elementary schools and secondary schools are 
located, after timely and meaningful consultation with private school 
representatives, is responsible for conducting the child find process 
to determine the number of parentally-placed children with disabilities 
attending private schools located in the LEA. We believe this 
responsibility includes child find for children who reside in other 
States but who attend private elementary schools and secondary schools 
located in the LEA, because section 612(a)(10)(A)(i)(II) of the Act is 
clear about which LEA is responsible for child find and the Act does 
not provide an exception for children who reside in one State and 
attend private elementary schools and secondary schools in other 
States.
    Under section 612(a)(10)(A)(i) of the Act, the LEA where the 
private elementary schools and secondary schools are located, in 
consultation with private school officials and representatives of 
parents of parentally-placed private school children with disabilities, 
also is responsible for determining and paying for the services to be 
provided to parentally-placed private school children with 
disabilities. We believe this responsibility extends to children from 
other States who are enrolled in a private school located in the LEA, 
because section 612(a)(10)(A)(i) of the Act clarifies that the LEA 
where the private schools are located is responsible for spending a 
proportionate amount of its Federal Part B funds on special education 
and related services for children enrolled by their parents in the 
private schools located in the LEA. The Act does not provide an 
exception for out-of-State children with disabilities attending a 
private school located in the LEA and, therefore, out-of-State children 
with disabilities must be included in the group of parentally-placed 
children with disabilities whose needs are considered in determining 
which parentally-placed private school children with disabilities will 
be served and the types and amounts of services to be provided.
    Changes: We have added a new paragraph (f) to Sec.  300.131 
clarifying that each LEA where private, including religious, elementary 
schools and secondary schools are located must, in carrying out the 
child find requirements in this section, include parentally-placed 
private school children who reside in the State other than where the 
private schools they attend are located.
    Comment: A few commenters recommended the regulations clarify the 
LEA's obligation under Sec. Sec.  300.130 through 300.144 regarding 
child find and equitable participation for children from other 
countries enrolled in private elementary schools and secondary schools 
by their parents.
    Discussion: The obligation to consider children with disabilities 
for equitable services extends to all children with disabilities in the 
State who are enrolled by their parents in private schools within each 
LEA's jurisdiction.
    Changes: None.
    Comment: Several commenters recommended the regulations clarify the 
applicability of the child find and equitable participation 
requirements in Sec. Sec.  300.130 through 300.144 for children with 
disabilities, aged three through five, enrolled by their parents in 
private preschools or day care programs. Many commenters recommended 
the regulations clarify that preschool children with disabilities 
should be counted in determining the proportionate share of funds 
available to serve children enrolled in private elementary schools by 
their parents.
    Discussion: If a private preschool or day care program is 
considered an elementary school, as defined in Sec.  300.13, the child 
find and equitable services participation requirements in Sec. Sec.  
300.130 through 300.144, consistent with section 612(a)(10) of the Act, 
apply to children with disabilities aged three through five enrolled by 
their parents in such programs. Section 300.13, consistent with section 
602(6) of the Act, defines an elementary school as a nonprofit 
institutional day or residential school, including a public elementary 
charter school, which provides elementary education, as determined 
under State law. We believe it is important to clarify in the 
regulations that children aged three through five are considered 
parentally-placed private school children with disabilities enrolled in 
private elementary schools only if they are enrolled in private schools 
that meet the definition of elementary school in Sec.  300.13.
    Changes: We have added a new Sec.  300.133(a)(2)(ii) to clarify 
that children aged three through five are considered to be parentally-
placed private school children with disabilities enrolled by their 
parents in private, including religious, elementary schools, if they 
are enrolled in a private school that meets the definition of 
elementary school in Sec.  300.13.
Definition of Parentally-Placed Private School Children With 
Disabilities (Sec.  300.130)
    Comment: A few commenters recommended removing ``or facilities'' 
from the definition of parentally-placed private school children 
because it is not defined in the Act or the regulations. Another 
commenter recommended including a definition of ``facilities.''
    Discussion: Under section 612(a)(10)(A) of the Act, the obligation 
to conduct child find and provide equitable services extends to 
children who are enrolled by their parents in private elementary 
schools and secondary schools. This obligation also applies to children 
who have been enrolled by their parents in private facilities if those 
facilities are elementary schools or secondary schools, as defined in 
subpart A of the regulations. Because facilities that meet the 
definition of elementary school or secondary school are covered under 
this section, we believe it is important to retain the reference to 
facilities in these regulations. We will, however, revise Sec.  300.130 
to clarify that children with disabilities who are enrolled by their 
parents in facilities that meet the definition of elementary school in 
Sec.  300.13 or secondary school in new Sec.  300.36 (proposed Sec.  
300.35) would be considered parentally-placed private school children 
with disabilities.
    Changes: Section 300.130 has been revised to clarify that 
parentally-placed private school children with disabilities means 
children with disabilities enrolled by their parents in private, 
including religious, schools or facilities that meet the definition of 
an elementary school in Sec.  300.13 or secondary school in Sec.  
300.36.
Child Find for Parentally-Placed Private School Children With 
Disabilities (Sec.  300.131)
    Comment: A few commenters recommended permitting the LEA where 
private schools are located to request reimbursement from the LEA where 
the child resides for the cost of conducting an individual evaluation, 
as may be required under the child find requirements in Sec.  300.131.
    One commenter recommended that the LEA where private schools are 
located be responsible for locating and identifying children with 
disabilities enrolled by their parents in private schools and the LEA 
where the children reside be responsible for conducting individual 
evaluations.

[[Page 46592]]

    Discussion: Section 300.131, consistent with section 
612(a)(10)(A)(i) of the Act, requires that the LEA where private 
elementary schools and secondary schools in which the child is enrolled 
are located, not the LEA where the child resides, is responsible for 
conducting child find, including an individual evaluation for a child 
with a disability enrolled by the child's parent in a private 
elementary school or secondary school located in the LEA. The Act 
specifies that the LEA where the private schools are located is 
responsible for conducting both the child find process and the initial 
evaluation. Therefore, the LEA where private schools are located may 
not seek reimbursement from the LEA of residence for the cost of 
conducting the evaluation or to request that the LEA of residence 
conduct the evaluation. However, the LEA where the private elementary 
school or secondary school is located has options as to how it meets 
its responsibilities. For example, the LEA may assume the 
responsibility itself, contract with another public agency (including 
the public agency of residence), or make other arrangements.
    Changes: None.
    Comment: One commenter recommended permitting a parent who enrolled 
a child in a private elementary school or secondary school the option 
of not participating in child find required under Sec.  300.131.
    Discussion: New Sec.  300.300(e)(4) clarifies that parents who 
enroll their children in private elementary schools and secondary 
schools have the option of not participating in an LEA's child find 
activities required under Sec.  300.131. As noted in the Analysis of 
Comments and Changes section for subpart D, once parents opt out of the 
public schools, States and school districts do not have the same 
interest in requiring parents to agree to the evaluation of their 
children as they do for children enrolled in public schools, in light 
of the public agencies' obligation to educate public school children 
with disabilities. We further indicate in the discussion of subpart D 
that we have added new Sec.  300.300(e)(4) (proposed Sec.  300.300(d)) 
to clarify that if the parent of a child who is home schooled or placed 
in a private school by the child's parent at the parent's own expense 
does not provide consent for an initial evaluation or reevaluation, the 
public agency may not use the due process procedures in section 615 of 
the Act and the public agency is not required to consider the child for 
equitable services.
    Changes: None.
    Comment: Several commenters recommended permitting amounts expended 
for child find, including individual evaluations, to be deducted from 
the required amount of funds to be expended on equitable services for 
parentally-placed private school children with disabilities.
    Discussion: The requested changes would be inconsistent with the 
Act. There is a distinction under the Act between the obligation to 
conduct child find activities, including individual evaluations, for 
parentally-placed private school children with disabilities, and the 
obligation to use an amount of funds equal to a proportionate amount of 
the Federal Part B grant flowing to LEAs to provide special education 
and related services to parentally-placed private school children with 
disabilities. The obligation to conduct child find for parentally-
placed private school children, including individual evaluations, is 
independent of the services provision. Further, Sec.  300.131(d), 
consistent with section 612(a)(10)(A)(ii)(IV) of the Act, clarifies 
that the costs of child find activities for parentally-placed private 
school children, including individual evaluations, may not be 
considered in determining whether the LEA has spent an appropriate 
amount on providing special education and related services to 
parentally-placed private school children with disabilities.
    Changes: None.
    Comment: One commenter requested clarifying whether an LEA may 
exclude children suspected of having certain disabilities, such as 
those with specific learning disabilities, in conducting individual 
evaluations of suspected children with disabilities enrolled in private 
schools by their parents.
    Discussion: The LEA where the private elementary schools and 
secondary schools are located must identify and evaluate all children 
suspected of having disabilities as defined under section 602(3) of the 
Act. LEAs may not exclude children suspected of having certain 
disabilities, such as those with specific learning disabilities, from 
their child find activities. The Department recommends that LEAs and 
private elementary schools and secondary schools consult on how best to 
implement the State's evaluation criteria and the requirements under 
this part for identifying children with specific learning disabilities 
enrolled in private schools by their parents. This is explained in more 
detail in the discussion of comments under Sec.  300.307.
    Changes: None.
    Comment: A few commenters expressed concern that parents who place 
their children in private elementary schools and secondary schools 
outside the district of residence, and who are determined by the LEA 
where the private schools are located, through its child find process, 
to be children with disabilities eligible for special education and 
related services, would have no knowledge of the special education and 
related services available for their children if they choose to attend 
a public school in their district of residence. A few commenters 
suggested clarifying the obligation of the LEA where the private school 
is located to provide the district of residence the results of an 
evaluation and eligibility determination of the parentally-placed 
private school child.
    A few commenters recommended that the parent of a child with a 
disability identified through the child find process in Sec.  300.131 
be provided with information regarding an appropriate educational 
program for the child.
    Discussion: The Act is silent on the obligation of officials of the 
LEA where private elementary schools and secondary schools are located 
to share personally identifiable information, such as individual 
evaluation information, with officials of the LEA of the parent's 
residence. We believe that the LEA where the private schools are 
located has an obligation to protect the privacy of children placed in 
private schools by their parents. We believe that when a parentally-
placed private school child is evaluated and identified as a child with 
a disability by the LEA in which the private school is located, 
parental consent should be required before such personally identifiable 
information is released to officials of the LEA of the parent's 
residence. Therefore, we are adding a new paragraph (b)(3) to Sec.  
300.622 to make this clear. We explain this revision in more detail in 
the discussion of comments under Sec.  300.622.
    We believe the regulations adequately ensure that parents of 
children enrolled in private schools by their parents, who are 
identified as children with disabilities through the child find 
process, receive information regarding an appropriate educational 
program for their children. Section 300.138(b) provides that each 
parentally-placed private school child with a disability who has been 
designated to receive equitable services must have a services plan that 
describes the specific education and related services that the LEA 
where the private school is located has determined it will make 
available to the child and the services plan must, to the extent 
appropriate, meet the IEP content, development, review and revision 
requirements described in

[[Page 46593]]

section 614(d) of the Act, or, when appropriate, for children aged 
three through five, the IFSP requirements described in section 636(d) 
of the Act as to the services that are to be provided.
    Furthermore, the LEA where the private school is located must, 
pursuant to Sec.  300.504(a) and section 615(d) of the Act, provide the 
parent a copy of the procedural safeguards notice upon conducting the 
initial evaluation.
    Changes: We have added a new paragraph (b)(3) to Sec.  300.622 to 
require parental consent for the disclosure of records of parentally-
placed private school children between LEAs.
    Comment: A few commenters stated that Sec.  300.131 does not 
address which LEA has the responsibility for reevaluations.
    Discussion: The LEA where the private schools are located is 
responsible for conducting reevaluations of children with disabilities 
enrolled by their parents in private elementary schools and secondary 
schools located within the LEA. Reevaluation is a part of the LEA's 
child find responsibility for parentally-placed private school children 
under section 612(a)(10)(A) of the Act.
    Changes: None.
    Comment: One commenter expressed concern that the regulations 
permit a parent to request an evaluation from the LEA of residence at 
the same time the child is being evaluated by the LEA where the private 
elementary school or secondary school is located, resulting in two LEAs 
simultaneously conducting evaluations of the same child.
    Discussion: We recognize that there could be times when parents 
request that their parentally-placed child be evaluated by different 
LEAs if the child is attending a private school that is not in the LEA 
in which they reside. For example, because most States generally 
allocate the responsibility for making FAPE available to the LEA in 
which the child's parents reside, and that could be a different LEA 
from the LEA in which the child's private school is located, parents 
could ask two different LEAs to evaluate their child for different 
purposes at the same time. Although there is nothing in this part that 
would prohibit parents from requesting that their child be evaluated by 
the LEA responsible for FAPE for purposes of having a program of FAPE 
made available to the child at the same time that the parents have 
requested that the LEA where the private school is located evaluate 
their child for purposes of considering the child for equitable 
services, we do not encourage this practice. We note that new Sec.  
300.622(b)(4) requires parental consent for the release of information 
about parentally-placed private school children between LEAs; 
therefore, as a practical matter, one LEA may not know that a parent 
also requested an evaluation from another LEA. However, we do not 
believe that the child's best interests would be well-served if the 
parents requested evaluations of their child by the resident school 
district and the LEA where the private school is located, even though 
these evaluations are conducted for different purposes. A practice of 
subjecting a child to repeated testing by separate LEAs in close 
proximity of time may not be the most effective or desirable way of 
ensuring that the evaluation is a meaningful measure of whether a child 
has a disability or of providing an appropriate assessment of the 
child's educational needs.
    Changes: None.
    Comment: Some commenters requested the regulations clarify which 
LEA (the LEA of residence or the LEA where the private elementary 
schools or secondary schools are located) is responsible for offering 
FAPE to children identified through child find under Sec.  300.131 so 
that parents can make an informed decision regarding their children's 
education.
    Discussion: If a determination is made by the LEA where the private 
school is located that a child needs special education and related 
services, the LEA where the child resides is responsible for making 
FAPE available to the child. If the parent makes clear his or her 
intention to keep the child enrolled in the private elementary school 
or secondary school located in another LEA, the LEA where the child 
resides need not make FAPE available to the child. We do not believe 
that a change to the regulations is necessary, as Sec.  300.201 already 
clarifies that the district of residence is responsible for making FAPE 
available to the child. Accordingly, the district in which the private 
elementary or secondary school is located is not responsible for making 
FAPE available to a child residing in another district.
    Changes: None.
    Comment: One commenter requested clarification of the term 
``activities similar'' in Sec.  300.131(c). Another commenter 
recommended clarifying that these activities include, but are not 
limited to, activities relating to evaluations and reevaluations. One 
commenter requested that children with disabilities parentally-placed 
in private schools be identified and evaluated as quickly as possible.
    Discussion: Section 300.131(c), consistent with section 
612(a)(10)(A)(ii)(III) of the Act, requires that, in carrying out child 
find for parentally-placed private school children, SEAs and LEAs must 
undertake activities similar to those activities undertaken for their 
publicly enrolled or publicly-placed children. This would generally 
include, but is not limited to, such activities as widely distributing 
informational brochures, providing regular public service 
announcements, staffing exhibits at health fairs and other community 
activities, and creating direct liaisons with private schools. 
Activities for child find must be completed in a time period comparable 
to those activities for public school children. This means that LEAs 
must conduct child find activities, including individual evaluations, 
for parentally-placed private school children within a reasonable 
period of time and without undue delay, and may not wait until after 
child find for public school children is conducted. In addition, 
evaluations of all children suspected of having disabilities under Part 
B of the Act, regardless of whether they are enrolled by their parents 
in private elementary schools or secondary schools, must be conducted 
in accordance with the requirements in Sec. Sec.  300.300 through 
300.311, consistent with section 614(a) through (c) of the Act, which 
describes the procedures for evaluations and reevaluations for all 
children with disabilities. We believe the phrase ``activities 
similar'' is understood by SEAs and LEAs and, therefore, it is not 
necessary to regulate on the meaning of the phrase.
    Changes: None.
Provision of Services for Parentally-Placed Private School Children 
With Disabilities--Basic Requirement (Sec.  300.132)
    Comment: Several commenters expressed confusion regarding which LEA 
is responsible for paying for the equitable services provided to a 
parentally-placed private elementary school or secondary school child, 
the district of the child's residence or the LEA where the private 
school is located.
    Discussion: We believe Sec.  300.133, consistent with section 
612(a)(10)(A) of the Act, is sufficiently clear that the LEA where the 
private elementary schools and secondary schools are located is 
responsible for paying for the equitable services provided to a 
parentally-placed private elementary school or secondary school child. 
These provisions provide that the LEA where the private elementary and 
secondary schools are located must spend a proportionate amount of its 
Federal funds available under Part B of the Act

[[Page 46594]]

for services for children with disabilities enrolled by their parents 
in private elementary schools and secondary schools located in the LEA. 
The Act does not permit an exception to this requirement. No further 
clarification is needed.
    Changes: None.
    Comment: One commenter recommended the regulations clarify which 
LEA in the State is responsible for providing equitable services to 
parentally-placed private school children with disabilities who attend 
a private school that straddles two LEAs in the State.
    Discussion: The Act does not address situations where a private 
school straddles more than one LEA. However, the Act does specify that 
the LEA in which the private school is located is responsible for 
providing special education to children with disabilities placed in 
private schools by their parents, consistent with the number of such 
children and their needs. In situations where more than one LEA 
potentially could assume the responsibility of providing equitable 
services, the SEA, consistent with its general supervisory 
responsibility, determines which LEA in the State is responsible for 
ensuring the equitable participation of children with disabilities 
attending that private school. We do not believe that the situation is 
common enough to warrant a change in the regulations.
    Changes: None.
    Comment: A few commenters recommended revising the heading for 
Sec.  300.132(b) to clarify that LEAs, not SEAs, are responsible for 
developing service plans.
    Discussion: We agree with the commenters that the heading for Sec.  
300.132(b) should be changed to accurately reflect the requirement and 
to avoid confusion.
    Changes: We have revised the heading for Sec.  300.132(b) by 
removing the reference to SEA responsibility.
    Comment: One commenter requested requiring in Sec.  300.132(c) that 
data on parentally-placed private school children with disabilities be 
submitted to the Department. Another commenter agreed, stating that the 
data should be submitted the same day as the annual child count.
    Discussion: The purpose of the child count under Sec.  300.132(c) 
is to determine the amount of Federal funds that the LEA must spend on 
providing special education and related services to parentally-placed 
private school children with disabilities in the next fiscal year. We 
are not requiring States to submit these data to the Department as the 
Department does not have a programmatic or regulatory need to collect 
this information at this time. Section 300.644 permits the SEA to 
include in its annual report of children served those parentally-placed 
private school children who are eligible under the Act and receive 
special education or related services. We believe this is sufficient to 
meet the Department's need to collect data on this group of children 
and we do not wish to place an unnecessary data collection and 
paperwork burden on States.
    Changes: None.
Expenditures (Sec.  300.133)
    Comment: One commenter requested the regulations clarify whether an 
LEA must spend its entire proportionate share for parentally-placed 
private school children with disabilities by the end of a fiscal year 
or could carry over any remaining funds into the next fiscal year.
    Discussion: We agree with the commenter that a provision should be 
included in these regulations to clarify that, if an LEA has not 
expended for equitable services all of the proportionate amount of 
Federal funds to be provided for parentally-placed private school 
children with disabilities by the end of the fiscal year for which 
Congress appropriated the funds, the LEA must obligate the remaining 
funds for special education and related services (including direct 
services) to parentally-placed private school children with 
disabilities during a carry-over period of one additional year.
    Changes: A new paragraph (a)(3) has been added to Sec.  300.133 to 
address the carry over of funds not expended by the end of the fiscal 
year.
    Comment: None.
    Discussion: It has come to our attention that there is some 
confusion among States and LEAs between the count of the number of 
children with disabilities receiving special education and related 
services as required under section 618 of the Act, and the requirement 
under section 612(a)(10)(A)(i)(II) of the Act that each LEA conduct an 
annual count of the number of parentally-placed private school children 
with disabilities attending private schools in the LEA. We will, 
therefore, revise the heading (child count) for Sec.  300.133(c) and 
the regulatory language in Sec.  300.133(c) to avoid any confusion 
regarding the requirements in paragraph (c).
    Changes: Section 300.133(c) has been revised as described above.
    Comment: One commenter interpreted Sec.  300.133(d) to require 
that: (1) LEAs provide services to parentally-placed private school 
children with disabilities with funds provided under the Act and (2) 
LEAs no longer have the option of using local funds equal to, and in 
lieu of, the Federal pro-rated share amount. This commenter recommended 
that LEAs continue to be allowed to use local funds for administrative 
convenience.
    Discussion: The commenter's interpretation is correct. The Act 
added the supplement, not supplant requirement in section 
612(a)(10)(A)(i)(IV), which is included in Sec.  300.133(d). This 
requirement provides that State and local funds may supplement, but in 
no case supplant the proportionate amount of the Federal Part B funds 
that must be expended under this provision. Prior to the change in the 
Act, if a State was spending more than the Federal proportional share 
of funds from State or local funds, then the State would not have to 
spend any Federal Part B funds. That is no longer permissible under the 
Act.
    Changes: None.
    Comment: A few commenters requested revising Sec.  300.133 to 
include home-schooled children with disabilities in the same category 
as parentally-placed private school children with disabilities.
    Discussion: Whether home-schooled children with disabilities are 
considered parentally-placed private school children with disabilities 
is a matter left to State law. Children with disabilities in home 
schools or home day cares must be treated in the same way as other 
parentally-placed private school children with disabilities for 
purposes of Part B of the Act only if the State recognizes home schools 
or home day cares as private elementary schools or secondary schools.
    Changes: None.
Consultation (Sec.  300.134)
    Comment: Some commenters recommended requiring, in Sec.  
300.134(e), that the LEA include, in its written explanation to the 
private school, its reason whenever: (1) The LEA does not provide 
services by a professional directly employed by that LEA to parentally-
placed private school children with a disability when requested to do 
so by private school officials; and (2) the LEA does not provide 
services through a third party provider when requested to do so by the 
private school officials.
    Discussion: Section 300.134(e) incorporates the language from 
section 612(a)(10)(A)(iii)(V) of the Act and requires the LEA to 
provide private school officials with a written explanation of the 
reasons why the LEA

[[Page 46595]]

chose not to provide services directly or through contract. We do not 
believe that the additional language suggested by the commenter is 
necessary because we view the statutory language as sufficient to 
ensure that the LEA meets its obligation to provide private school 
officials a written explanation of any reason why the LEA chose not to 
provide services directly or through a contract.
    Changes: None.
Written Affirmation (Sec.  300.135)
    Comment: Several commenters recommended requiring LEAs to forward 
the written affirmation to the SEA, because this information is 
important for the SEA to exercise adequate oversight over LEAs with 
respect to the participation of private school officials in the 
consultation process.
    Discussion: Section 300.135, regarding written affirmation, tracks 
the language in section 612(a)(10)(A)(iv) of the Act. Including a 
requirement in the regulations that the LEA must submit a copy of 
signed written affirmations to the SEA would place reporting burdens on 
the LEA that are not required by the Act and that we do not believe are 
warranted in this circumstance. We expect that in most circumstances 
private school officials and LEAs will have cooperative relationships 
that will not need State involvement. If private school officials 
believe that there was not meaningful consultation, they may raise that 
issue with the SEA through the procedures in Sec.  300.136. However, 
there is nothing in the Act or these regulations that would preclude a 
State from requiring LEAs to submit a copy of the written affirmation 
obtained pursuant to Sec.  300.135, in meeting its general supervision 
responsibilities under Sec.  300.149 or as a part of its monitoring of 
LEAs' implementation of Part B of the Act as required in Sec.  300.600. 
Consistent with Sec.  300.199(a)(2) and section 608(a)(2) of the Act, a 
State that chooses to require its LEAs to submit copies of written 
affirmations to the SEA beyond what is required in Sec.  300.135 would 
have to identify, in writing, to the LEAs located in the State and to 
the Secretary, that such rule, regulation, or policy is a State-imposed 
requirement that is not required by Part B of the Act or these 
regulations.
    Changes: None.
Compliance (Sec.  300.136)
    Comment: One commenter recommended revising Sec.  300.136 to permit 
an LEA to submit a complaint to the State if private school officials 
do not engage in meaningful consultation with the LEA.
    Discussion: Section 300.136, consistent with section 
612(a)(10)(A)(v) of the Act, provides that a private school official 
has the right to complain to the SEA that the LEA did not engage in 
consultation that was meaningful and timely, or did not give due 
consideration to the views of the private school official. The 
provisions in the Act and the regulations apply to the responsibilities 
of the SEA and its LEAs and not to private schools or entities. Because 
the requirements of the Act do not apply to private schools, we do not 
believe requiring SEAs to permit an LEA to submit a complaint to the 
SEA alleging that representatives of the private schools did not 
consult in a meaningful way with the LEA would serve a meaningful 
purpose. The equitable services made available under Part B of the Act 
are a benefit to the parentally-placed private school children and not 
services provided to the private schools.
    Changes: None.
    Comment: Several commenters recommended revising Sec.  300.136 to 
allow States to determine the most appropriate procedures for a private 
school official to submit a complaint to the SEA that an LEA did not 
engage in consultation that was meaningful and timely, or did not give 
due consideration to the views of the private school officials. Many of 
these commenters stated that requiring such complaints be filed 
pursuant to the State complaint procedures in Sec. Sec.  300.151 
through 300.153 is not required by the Act and recommended we remove 
this requirement.
    Discussion: We agree with the commenters that section 
612(a)(10)(A)(v) of the Act does not stipulate how a private school 
official must submit a complaint to the SEA that the LEA did not engage 
in consultation that was meaningful and timely, or did not give due 
consideration to the views of the private school official. We also 
agree with the commenters that the SEA should have flexibility to 
determine how such complaints will be filed with the State. We will, 
therefore, revise Sec.  300.136(a) to remove the requirement that 
private school officials must file a complaint with the SEA under the 
State complaint procedures in Sec. Sec.  300.151 through 300.153. 
States may, if they so choose, use their State complaint procedures 
under Sec. Sec.  300.151 through 300.153 as the means for a private 
school to file a complaint under Sec.  300.136.
    Changes: Section 300.136 has been revised to remove the requirement 
that a private school official submit a complaint to the SEA using the 
procedures in Sec. Sec.  300.151 through 300.153.
Equitable Services Determined (Sec.  300.137)
    Comment: One commenter recommended removing Sec.  300.137(a), 
stating it is discriminatory and that parentally-placed private school 
children must receive the same amount of services as children with 
disabilities in public schools.
    Discussion: Section 300.137(a) reflects the Department's 
longstanding policy, consistent with section 612(a)(10) of the Act, and 
explicitly provides that children with disabilities enrolled in private 
schools by their parents have no individual entitlement to receive some 
or all of the special education and related services they would receive 
if enrolled in the public schools. Under the Act, LEAs only have an 
obligation to provide parentally-placed private school children with 
disabilities an opportunity for equitable participation in the services 
funded with Federal Part B funds that the LEA has determined, after 
consultation, to make available to its population of parentally-placed 
private school children with disabilities. LEAs are not required to 
spend more than the proportionate Federal share on those services.
    Changes: None.
Equitable Services Provided (Sec.  300.138)
    Comment: Several commenters requested clarifying whether the 
requirement in Sec.  300.138(a) that services provided to parentally-
placed private school children with disabilities be provided by 
personnel meeting the same standards (i.e., highly qualified teacher 
requirements) as personnel providing services in the public schools 
applies to private school teachers who are contracted by the LEA to 
provide equitable services.
    Discussion: As discussed in the Analysis of Comments and Changes 
section, in the response to comments on Sec.  300.18, it is the 
Department's position that the highly qualified special education 
teacher requirements do not apply to teachers hired by private 
elementary schools and secondary schools. This includes teachers hired 
by private elementary schools and secondary schools who teach children 
with disabilities. Further, it is the Department's position that the 
highly qualified special education teacher requirements also do not 
apply to private school teachers who provide equitable services to 
parentally-placed private school children with disabilities.

[[Page 46596]]

In addition to the revision we are making to new Sec.  300.18(h) 
(proposed Sec.  300.18(g)) to make this position clear, we also will 
revise Sec.  300.138(a)(1) to clarify that private elementary school 
and secondary school teachers who are providing equitable services to 
parentally-placed private school children with disabilities do not have 
to meet the highly qualified special education teacher requirements.
    Changes: We have revised Sec.  300.138(a)(1) as indicated.
    Comment: A few commenters requested clarifying the process for 
developing a services plan and explaining how a services plan differs 
from an IEP.
    Discussion: We do not believe that additional explanation in the 
regulation is needed. Under Sec.  300.138(b), each parentally-placed 
private school child with a disability who has been designated by the 
LEA in which the private school is located to receive special education 
or related services must have a services plan. The services plan must 
describe the specific special education and related services offered to 
a parentally-placed private school child with a disability designated 
to receive services. The services plan also must, to the extent 
appropriate, meet the IEP content, development, review, and revision 
requirements described in section 614(d) of the Act, or, when 
appropriate, for children aged three through five, the IFSP 
requirements described in section 636(d) of the Act as to the services 
that are to be provided. The LEA must ensure that a representative of 
the private school attends each meeting to develop the services plan 
and if the representative cannot attend, use other methods to ensure 
participation by the private school, including individual or conference 
telephone calls.
    Children with disabilities enrolled in public schools or who are 
publicly-placed in private schools are entitled to FAPE and must 
receive the full range of services under Part B of the Act that are 
determined by the child's IEP Team to be necessary to meet the child's 
individual needs and provide FAPE. The IEPs for these children 
generally will be more comprehensive than the more limited services 
plans developed for parentally-placed private school children with 
disabilities designated to receive services.
    Changes: None.
    Comment: A few commenters recommended revising the definition of 
services plan to clarify that an IEP could serve as the services plan; 
otherwise, States that provide IEP services to parentally-placed 
private school children with disabilities would be required to develop 
a services plan and an IEP.
    Discussion: We do not believe it is appropriate to clarify in the 
regulations that the IEP can serve as the services plan because, as 
stated elsewhere in this preamble, a services plan should only describe 
the specific special education and related services offered to a 
parentally-placed private school child with a disability designated to 
receive services. We believe that using an IEP in lieu of a services 
plan for these children may not be appropriate in light of the fact 
that an IEP developed pursuant to section 614(d) of the Act will 
generally include much more than just those services that a parentally-
placed private school child with a disability may receive, if 
designated to receive services. There is nothing, however, in these 
regulations that would prevent a State that provides more services to 
parentally-placed private school children with disabilities than they 
are required to do under the Act to use an IEP in place of a services 
plan, consistent with State law.
    Changes: None.
Location of Services and Transportation (Sec.  300.139)
    Comment: A few commenters asked for clarification as to how the 
location where services will be provided to parentally-placed private 
school children with disabilities is determined.
    Discussion: Under Sec.  300.134(d), how, where, and by whom special 
education and related services are provided to parentally-placed 
private school children with disabilities are subjects of the process 
of consultation among LEA officials, private school representatives, 
and representatives of parents of parentally-placed private school 
children with disabilities. Further, Sec.  300.137(b)(2) clarifies 
that, after this consultation process, the final decision with respect 
to the services provided to eligible parentally-placed private school 
children with disabilities is made by the LEA.
    Changes: None.
    Comment: Some commenters recommended specifying that providing 
services on the premises of private elementary schools and secondary 
schools is the preferred means of serving parentally-placed private 
school children with disabilities. A few commenters recommended 
revising Sec.  300.139(a) to stipulate that services ``should'' or 
``must'' be provided on the premises of private schools, unless there 
is a compelling rationale for these services to be provided off-site. 
In contrast, several commenters objected to the statement in the 
preamble to the NPRM that services should be provided on-site unless 
there is a compelling rationale to provide services off-site. A few of 
these commenters stated that the Act does not indicate a preference for 
one location of services over another and the Department has no 
authority to provide such a strong comment on this issue.
    Discussion: Services offered to parentally-placed private school 
children with disabilities may be provided on-site at a child's private 
school, including a religious school, to the extent consistent with 
law, or at another location. The Department believes, in the interests 
of the child, LEAs should provide services on site at the child's 
private school so as not to unduly disrupt the child's educational 
experience, unless there is a compelling rationale for these services 
to be provided off-site. The phrase ``to the extent consistent with 
law'' is in section 612(a)(10)(A)(i)(III) of the Act. We interpret this 
language to mean that the provision of services on the premises of a 
private school takes place in a manner that would not violate the 
Establishment Clause of the First Amendment to the U.S. Constitution 
and would not be inconsistent with applicable State constitutions or 
law. We, therefore, do not have the statutory authority to require that 
services be provided on-site.
    Changes: None.
    Comment: A few commenters expressed concern that Sec.  300.139(b), 
regarding transportation services, goes beyond the requirements in the 
Act and should be removed. A few commenters stated that transportation 
is a related service and should be treated as such with respect to 
parentally-placed children with disabilities in private schools.
    Discussion: We do not agree that transportation services should be 
removed from Sec.  300.139(b). If services are offered at a site 
separate from the child's private school, transportation may be 
necessary to get the child to and from that other site. Failure to 
provide transportation could effectively deny the child an opportunity 
to benefit from the services that the LEA has determined through 
consultation to offer its parentally-placed private school children 
with disabilities. In this situation, although transportation is not a 
related service, as defined in Sec.  300.34, transportation is 
necessary to enable the child to participate and to make the offered 
services accessible to the child. LEAs should work in consultation with 
representatives of private school children to ensure that services are

[[Page 46597]]

provided at sites, including on the premises of the child's private 
school, so that LEAs do not incur significant transportation costs.
    However, for some children with disabilities, special modifications 
in transportation may be necessary to address the child's unique needs. 
If the group developing the child's services plan determines that a 
parentally-placed private school child with a disability chosen to 
receive services requires transportation as a related service in order 
to receive special education services, this transportation service 
should be included as a related service in the services plan for the 
child.
    In either case, the LEA may include the cost of the transportation 
in calculating whether it has met the requirement of Sec.  300.133.
    Changes: None.
Due Process Complaints and State Complaints (Sec.  300.140)
    Comment: Several commenters expressed concern that the right of 
parents of children with disabilities enrolled by their parents in 
private elementary schools and secondary schools to file a due process 
complaint against an LEA is limited to filing a due process complaint 
that an LEA has failed to comply with the child find and evaluation 
requirements, and not an LEA's failure to provide special education and 
related services as required in the services plan. A few commenters 
recommended that the regulations clarify whether the parent should file 
a due process complaint with the LEA of residence or with the LEA where 
the private school is located.
    Discussion: Section 615(a) of the Act specifies that the procedural 
safeguards of the Act apply with respect to the identification, 
evaluation, educational placement, or provision of FAPE to children 
with disabilities. The special education and related services provided 
to parentally-placed private school children with disabilities are 
independent of the obligation to make FAPE available to these children.
    While there may be legitimate issues regarding the provision of 
services to a particular parentally-placed private school child with a 
disability an LEA has agreed to serve, the due process provisions in 
section 615 of the Act and Sec. Sec.  300.504 through 300.519 do not 
apply to these disputes, because there is no individual right to these 
services under the Act. Disputes that arise about these services are 
properly subject to the State complaint procedures under Sec. Sec.  
300.151 through 300.153.
    Child find, however, is a part of the basic obligation that public 
agencies have to all children with disabilities, and failure to locate, 
identify, and evaluate a parentally-placed private school child would 
be subject to due process. Therefore, the due process provisions in 
Sec. Sec.  300.504 through 300.519 do apply to complaints that the LEA 
where the private school is located failed to meet the consent and 
evaluation requirements in Sec. Sec.  300.300 through 311.
    In light of the comments received, we will clarify in Sec.  300.140 
that parents of parentally-placed private school children with 
disabilities may file a due process complaint with the LEA in which the 
private school is located (and forward a copy to the SEA) regarding an 
LEA's failure to meet the consent and evaluation requirements in 
Sec. Sec.  300.300 through 300.311. We also will clarify that a 
complaint can be filed with the SEA under the State complaint 
procedures in Sec. Sec.  300.151 through 300.153 that the SEA or LEA 
has failed to meet the requirements in Sec. Sec.  300.132 through 
300.135 and Sec. Sec.  300.137 through 300.144. There would be an 
exception, however, for complaints filed pursuant to Sec.  300.136. 
Complaints under Sec.  300.136 must be filed in accordance with the 
procedures established by each State under Sec.  300.136.
    Changes: Proposed Sec.  300.140(a)(2) has been redesignated as new 
paragraph (b). A new paragraph (b)(2) has been added to this section to 
clarify that any due process complaint regarding the evaluation 
requirements in Sec.  300.131 must be filed with the LEA in which the 
private school is located, and a copy must be forwarded to the SEA. 
Proposed Sec.  300.140(b) has been redesignated as new paragraph (c), 
and has been revised to clarify that a complaint that the SEA or LEA 
has failed to meet the requirements in Sec. Sec.  300.132 through 
300.135 and Sec. Sec.  300.137 through 300.144 can be filed with the 
SEA under the State complaint procedures in Sec. Sec.  300.151 through 
300.153. Complaints filed pursuant to Sec.  300.136 must be filed with 
the SEA under the procedures established under Sec.  300.136(b).
    Comment: A few commenters requested clarification as to whether a 
parent of a parentally-placed private school child should request an 
independent educational evaluation at public expense under Sec.  
300.502(b) with the LEA of residence or the LEA where the private 
school is located.
    Discussion: We do not believe that this level of detail needs to be 
included in the regulation. If a parent of a parentally-placed child 
disagrees with an evaluation obtained by the LEA in which the private 
school is located, the parent may request an independent educational 
evaluation at public expense with that LEA.
    Changes: None.
Use of Personnel (Sec.  300.142)
    Comment: Several commenters requested clarifying language regarding 
who must provide equitable services to parentally-placed private school 
children with disabilities.
    Discussion: Under section 612(a)(10)(A)(vi)(I) of the Act, 
equitable services must be provided by employees of a public agency or 
through contract by the public agency with an individual, association, 
agency, organization, or other entity. Section 300.142(a) provides that 
an LEA may use Part B funds to make public school personnel available 
in other than public facilities to the extent necessary to provide 
equitable services for parentally-placed children with disabilities 
attending private schools and if those services are not otherwise 
provided by the private school to children as a benefit provided to all 
children attending that school. Under Sec.  300.142(b), an LEA may use 
Part B funds to pay for the services of an employee of a private school 
to provide equitable services if the employee performs the services 
outside of his or her regular hours of duty and the employee performs 
the services under public supervision and control. We believe that the 
regulation is sufficiently clear on this point.
    Changes: None.
Property, Equipment, and Supplies (Sec.  300.144)
    Comment: A few commenters requested clarification as to whether 
private school officials may purchase equipment and supplies with Part 
B funds to provide services to parentally-placed private school 
children with disabilities designated to receive services.
    Discussion: We do not believe the additional clarification 
suggested by the commenters is necessary. Section 300.144, consistent 
with section 612(a)(10)(A)(vii) of the Act, already requires that the 
LEA must control and administer the funds used to provide special 
education and related services to parentally-placed private school 
children with disabilities, and maintain title to materials, equipment, 
and property purchased with those funds. Thus, the regulations and the 
Act prevent private school officials from purchasing equipment and 
supplies with Part B funds.
    Changes: None.

[[Page 46598]]

Children With Disabilities in Private Schools Placed or Referred by 
Public Agencies

Applicability of Sec. Sec.  300.146 Through 300.147 (Sec.  300.145)
    Comment: One commenter stated that Sec. Sec.  300.145 through 
300.147 are unnecessary and solely administrative, because these 
sections are addressed in the Act and the proposed regulations provide 
no additional information on the application of the statutory 
requirements.
    Discussion: We do not agree with the commenter that the provisions 
in Sec. Sec.  300.146 through 300.147 are unnecessary and solely 
administrative. We believe it is necessary to retain these requirements 
in the regulations, consistent with section 612(a)(10)(B) of the Act, 
to ensure that public agencies are fully aware of their obligation to 
ensure that children with disabilities who are placed in or referred to 
a private school or facility by public agencies are entitled to receive 
FAPE to the same extent as they would if they were placed in a public 
agency school or program.
    Changes: None.
Responsibility of SEA (Sec.  300.146)
    Comment: Many commenters disagreed with the exception to the 
``highly qualified teacher'' requirements in paragraph (b) of this 
section and stated that the ``highly qualified teacher'' requirements 
should apply to private school teachers of children with disabilities 
placed or referred by public agencies. Several commenters stated that 
these children are likely to have more severe disabilities and, 
therefore, have a greater need for highly qualified teachers than 
children served in public schools.
    Several commenters stated that exempting teachers in private 
schools from the requirement to be ``highly qualified'' in situations 
where children with disabilities are publicly-placed in order to 
receive FAPE is not consistent with the requirement that the education 
provided to children in such settings meet the standards that apply to 
children served by public agencies, or with the ESEA and the goal in 
the Act of helping all children with disabilities achieve high 
standards.
    A few commenters supported the exception to ``highly qualified 
teacher'' requirements. One commenter stated that States should make 
their own decisions in this area in light of resource constraints.
    One commenter opposed the expenditure of public school funds for 
the education of publicly-placed private school children by teachers 
who do not meet the ``highly qualified'' requirements.
    Discussion: Section 602(10) of the Act states that ``highly 
qualified'' has the meaning given the term in section 9101 of the ESEA, 
which clarifies that the requirements regarding highly qualified 
teachers apply to public school teachers and not teachers teaching as 
employees of private elementary schools and secondary schools. As we 
stated in the Analysis of Comments and Changes section regarding Sec.  
300.138 in this subpart and Sec.  300.18 in subpart A, it is the 
Department's position that the highly qualified teacher requirements do 
not apply to teachers hired by private elementary schools and secondary 
schools. This includes teachers hired by private elementary schools and 
secondary schools who teach children with disabilities. We agree with 
the commenters that, in many instances, a public agency may choose to 
place a child with a severe disability and with more intensive 
educational needs in a private school or facility as a means of 
providing FAPE. When the public agency chooses to place a child with a 
significant disability, or any child with a disability, in a private 
school as a means of providing FAPE, the public agency has an 
obligation to ensure that the child receives FAPE to the same extent 
the child would if placed in a public school, irrespective of whether 
the private school teachers meet the highly qualified teacher 
requirements in Sec. Sec.  300.18 and 300.156(c). FAPE includes not 
just the special education and related services that a child with a 
disability receives, but also includes an appropriate preschool, 
elementary and secondary school education in the State involved. The 
required special education and related services must be provided at 
public expense, at no cost to the parent, in accordance with an IEP, 
and the education provided to the child must meet the standards that 
apply to educational services provided by the SEA and LEA (except for 
the highly qualified teacher requirements in Sec. Sec.  300.18 and 
300.156(c)). In addition, the SEA must ensure that the child has all 
the rights of a child with a disability who is served by a public 
agency.
    We do not agree with the premise of the commenters that not 
requiring private school teachers who provide services to publicly-
placed children with disabilities to meet the highly qualified teacher 
requirements means that the education provided to these children in the 
private school setting does not meet the standards that apply to 
children with disabilities served by the public agency. States have 
flexibility in developing standards that meet the requirements of the 
Act. The standards that SEAs apply to private schools that contract 
with public agencies to provide FAPE to children with disabilities, 
are, so long as they meet the requirements of Part B of the Act and its 
regulations, a State matter. Federal law does not encourage or prohibit 
the imposition of additional requirements as a condition of placing 
these children in the private school.
    With regard to the comment opposing the use of public school funds 
for the education of publicly-placed private school children by 
teachers who do not meet the highly qualified teacher requirements, a 
State or public agency may use whatever State, local, Federal, and 
private sources of support that are available in the State to meet the 
requirements of the Act. We believe restricting the use of public 
school funds as requested by the commenter would not only be 
inconsistent with the Act, but also may unnecessarily limit a public 
agency's options for providing FAPE to its publicly-placed children 
with disabilities.
    Changes: None.
    Comment: A few commenters recommended requiring States to have 
rules, regulations, and contracts requiring private schools that accept 
publicly-placed children with disabilities to guarantee that children 
with disabilities receive FAPE and their parents retain all of the 
protections mandated for public schools, including the right to 
pendency placements if the parents challenge the decisions of the 
private school to terminate the children's placements. One commenter 
recommended that the regulations clarify that private schools serving 
children placed by a public agency are not exempt from the obligation 
to provide FAPE.
    Discussion: The Act does not give States and other public agencies 
regulatory authority over private schools and does not place 
requirements on private schools. The Act imposes requirements on States 
and public agencies that refer to or place children with disabilities 
in private schools for the purposes of providing FAPE to those children 
because the public agency is unable to provide FAPE in a public school 
or program. The licensing and regulation of private schools are matters 
of State law. The Act requires States and public agencies, including 
LEAs, to ensure that FAPE is made available to all children with 
disabilities residing in the State in mandatory age ranges, and that 
the rights and protections of the Act are extended to eligible children 
and their parents. If the State or public

[[Page 46599]]

agency has placed children with disabilities in private schools for 
purposes of providing FAPE to those children, the State and the public 
agency must ensure that these children receive the required special 
education and related services at public expense, at no cost to the 
parents, in accordance with each child's IEP. It is the responsibility 
of the public agency to determine whether a particular private school 
in which the child with a disability will be placed for purposes of 
providing FAPE meets the standards that apply to the SEA and LEA and 
that a child placed by a public agency be afforded all the rights, 
including FAPE, that the child would otherwise have if served by the 
public agency directly.
    Changes: None.
    Comment: One commenter stated that, in cases where the public 
agency places a child in a private school or residential treatment 
facility for the purposes of providing FAPE, the public agency should 
be required to determine and inform the private school or residential 
treatment facility about the person or persons who have the legal 
authority to make educational decisions for the child.
    Discussion: The change requested by the commenter is not needed 
because the public agency, not the private agency, is responsible for 
providing FAPE to a child who is placed by the public agency in a 
private school. Consistent with Sec.  300.146 and section 612(a)(10)(B) 
of the Act, a public agency that places a child with a disability in a 
private school or facility as a means of carrying out the requirements 
of Part B of the Act, must ensure that the child has all the rights of 
a child with a disability who is served by a public agency, which 
includes ensuring that the consent requirements in Sec.  300.300 and 
sections 614(a)(1)(D) and 614(c) of the Act are followed. A public 
agency must, therefore, secure the needed consent from the person or 
persons who have the legal authority to make such decisions, unless the 
public agency has made other arrangements with the private school or 
facility to secure that consent. We do not believe it is necessary or 
appropriate to require the public agency to inform the private school 
or facility of the persons or persons who have the legal authority to 
make educational decisions for the child because this will depend on 
the specific arrangements made by the public agency with a private 
school or facility and, should, therefore, be determined by the public 
agency on a case by case basis.
    Changes: None.

Children With Disabilities Enrolled by Their Parents in Private Schools 
When FAPE Is at Issue

Placement of Children by Parents When FAPE Is at Issue (Sec.  300.148)
    Comment: Several commenters recommended retaining in these 
regulations the requirement in current Sec.  300.403(b) that 
disagreements between a parent and the LEA regarding the availability 
of a FAPE and the question of financial responsibility, are subject to 
the due process procedures in section 615 of the Act.
    Discussion: The provision in current Sec.  300.403(b) was in the 
1983 regulations and, therefore, should have been included in the NPRM 
in light of section 607(b) of the Act. Section 607(b) of the Act 
provides that the Secretary cannot publish final regulations that would 
procedurally or substantively lessen the protections provided to 
children with disabilities in the regulations that were in effect on 
July 20, 1983. We will revise Sec.  300.148 to include the requirement 
in current Sec.  300.403(b).
    Changes: Section 300.148 has been revised to include the 
requirement in current Sec.  300.403(b) that disagreements between a 
parent and a public agency regarding the availability of a program 
appropriate for the child and the question of financial responsibility 
are subject to the due process procedures in Sec. Sec.  300.504 through 
300.520.
    Comment: One commenter requested revising the regulations to 
eliminate financial incentives for parents to refer children for 
special education and then unilaterally placing their child in private 
schools without first receiving special education and related services 
from the school district. The commenter stated that it should be clear 
that a unilateral placement in a private school without first receiving 
special education and related services from the LEA does not require 
the public agency to provide reimbursement for private school tuition.
    One commenter stated that proposed Sec.  300.148(b) goes beyond the 
Act and only applies if the court or hearing officer finds that the 
agency had not made FAPE available to the child in a timely manner 
prior to enrollment in the private school. The commenter stated that a 
determination that a placement is ``appropriate,'' even if it does not 
meet the State standards that apply to education provided by the SEA or 
LEAs, conflicts with the SEA's or LEA's responsibility to ensure FAPE 
to children with disabilities.
    Discussion: The provision in Sec.  300.148(b) that a parental 
placement does not need to meet State standards in order to be 
``appropriate'' under the Act is retained from current Sec.  300.402(c) 
to be consistent with the Supreme Court's decisions in School Committee 
of the Town of Burlington v. Department of Education, 471 U.S. 359 
(1985) (Burlington) and Florence County School District Four v. Carter, 
510 U.S. 7 (1993) (Carter). Under the Supreme Court's decision in 
Carter, a court may order reimbursement for a parent who unilaterally 
withdraws his or her child from a public school that provides an 
inappropriate education under the Act and enrolls the child in a 
private school that provides an education that is otherwise proper 
under the Act, but does not meet the State standards that apply to 
education provided by the SEA and LEAs. The Court noted that these 
standards apply only to public agencies' own programs for educating 
children with disabilities and to public agency placements of children 
with disabilities in private schools for the purpose of providing a 
program of special education and related services. The Court reaffirmed 
its prior holding in Burlington that tuition reimbursement is only 
available if a Federal court concludes ``both that the public placement 
violated IDEA, and that the private school placement was proper under 
the Act.'' (510 U.S. at 12). We believe LEAs can avoid reimbursement 
awards by offering and providing FAPE consistent with the Act either in 
public schools or in private schools in which the parent places the 
child. However, a decision as to whether an LEA's offer or provision of 
FAPE was proper under the Act and any decision regarding reimbursement 
must be made by a court or hearing officer. Therefore, we do not 
believe it is appropriate to include in these regulations a provision 
relieving a public agency of its obligation to provide tuition 
reimbursement for a unilateral placement in a private school if the 
child did not first receive special education and related services from 
the LEA.
    This authority is independent of the court's or hearing officer's 
authority under section 612 (a)(10)(C)(ii) of the Act to award 
reimbursement for private placements of children who previously were 
receiving special education and related services from a public agency.
    Changes: None.

SEA Responsibility for General Supervision and Implementation of 
Procedural Safeguards

SEA Responsibility for General Supervision (Sec.  300.149)
    Comment: One commenter requested that the Department clarify in 
these

[[Page 46600]]

regulations how the requirements for SEA responsibility in Sec.  
300.149 apply with respect to children attending BIA-funded schools who 
are sent to State prisons, including whether the Office of Indian 
Education Programs in the Department of the Interior can delegate the 
responsibility of ensuring that the requirements of Part B of the Act 
are met by the State prison. The commenter further requested 
clarification regarding tribally controlled detention facilities that 
incarcerate a student from a different reservation than the reservation 
where the student attended a BIA-funded school.
    Discussion: As a general matter, for educational purposes, students 
who were enrolled in a BIA-funded school and are subsequently convicted 
as an adult and incarcerated in a State run adult prison are the 
responsibility of the State where the adult prison is located. Section 
612(a)(11)(C) of the Act and Sec.  300.149(d) allow flexibility to 
States in that the Governor, or another individual pursuant to State 
law, can designate a public agency in the State, other than the SEA, as 
responsible for ensuring that FAPE is made available to eligible 
students with disabilities who are convicted under State law and 
incarcerated in the State's adult prisons. This provision does not 
apply to the Secretary of the Interior. Therefore, the Office of Indian 
Education Programs cannot delegate the responsibility of ensuring that 
the requirements of Part B of the Act are met by the State prison. The 
Act does not specifically address who is responsible for education of 
students with disabilities in tribally controlled detention facilities. 
However, the Secretary of the Interior is only responsible for students 
who are enrolled in schools operated or funded by the Department of the 
Interior.
    Changes: None.
    Comment: One commenter recommended adding a heading prior to Sec.  
300.149 to separate this section from the regulations governing private 
schools.
    Discussion: We agree with the commenter that a heading should be 
added to separate the private school provisions from other State 
eligibility requirements.
    Changes: We have added a heading before Sec.  300.149 to separate 
the private school provisions from the provisions relating to the SEA's 
responsibility for general supervision and implementation of procedural 
safeguards.
State Complaint Procedures (Sec. Sec.  300.151 through 300.153)
    Comment: We received several comments questioning the statutory 
basis for the State complaint provisions in Sec. Sec.  300.151 through 
300.153. One commenter stated that the Act includes only two statutory 
references to State complaints and both references (sections 
612(a)(14)(E) and 615(f)(3)(F) of the Act) immediately follow statutory 
prohibitions on due process remedies.
    One commenter stated that Congress did not require SEAs to create a 
complaint system and that section 1232c(a) of the General Education 
Provisions Act, 20 U.S.C. 1232c(a) (GEPA), provides only that the 
Department may require a State to investigate and resolve all 
complaints received by the State related to the administration of an 
applicable program. The commenter stated that the permissive wording of 
this provision suggests that the Secretary or the Department can choose 
not to require a complaint investigation and resolution mechanism, 
particularly when such mechanism is unnecessary or, as in the case of 
the Act, effectively preempted by more specific requirements in the Act 
governing the applicable program.
    Another commenter concluded that there is no basis for the State 
complaint procedures in Sec. Sec.  300.151 through 300.153 because the 
Act only allows complaints to be filed with the State in two 
situations: (1) By private school officials, regarding consultation and 
child find for parentally-placed private school children pursuant to 
section 612(a)(10)(A)(i) and (10)(A)(iii) of the Act, and (2) by 
parents, regarding personnel qualifications in section 612(a)(14)(E) of 
the Act. The commenter stated that in both cases, the Act does not 
detail a complaint process.
    Discussion: Although Congress did not specifically detail a State 
complaint process in the Act, we believe that the State complaint 
process is fully supported by the Act and necessary for the proper 
implementation of the Act and these regulations. We believe a strong 
State complaint system provides parents and other individuals an 
opportunity to resolve disputes early without having to file a due 
process complaint and without having to go to a due process hearing. 
The State complaint procedures are referenced in the following three 
separate sections of the Act: (1) Section 611(e)(2)(B)(i) of the Act, 
which requires that States spend a portion of the amount of Part B 
funds that they can use for State-level activities on complaint 
investigations; (2) Section 612(a)(14)(E) of the Act, which provides 
that nothing in that paragraph creates a private right of action for 
the failure of an SEA or LEA staff person to be highly qualified or 
prevents a parent from filing a complaint about staff qualifications 
with the SEA, as provided for under this part; and (3) Section 
615(f)(3)(F) of the Act, which states that ``[n]othing in this 
paragraph shall be construed to affect the right of a parent to file a 
complaint with the State educational agency.'' Paragraph (f)(3) is 
titled ``Limitations on Hearing'' and addresses issues such as the 
statute of limitations and that hearing issues are limited to the 
issues that the parent has raised in their due process notice. The 
Senate Report explains that this provision clarifies that ``nothing in 
section 615 shall be construed to affect a parent's right to file a 
complaint with the State educational agency, including complaints of 
procedural violations' (S. Rpt. No. 108-185, p. 41).
    Furthermore, the State complaint procedures were a part of the 
initial Part B regulations in 1977 (45 CFR 121a.602). These regulations 
were moved into part 76 of the Education Department General 
Administrative Regulations (EDGAR) in the early 1980s, and were 
returned to the Part B regulations in 1992 (after the Department 
decided to move the regulations out of EDGAR and place them in program 
regulations for the major formula grant programs). Although the State 
complaint procedures have changed in some respects in the years since 
1977, the basic right of any individual or organization to file a 
complaint with the SEA alleging any violation of program requirements 
has remained the same. For these reasons, we believe the State 
complaint procedures should be retained in the regulations.
    Changes: None.
    Comment: Several commenters stated that use of the term 
``complaint'' in reference to due process complaints and State 
complaint procedures is confusing. One commenter requested that we use 
the phrase ``due process hearing request'' instead of ``due process 
complaint'' in the regulations to avoid confusion between the two 
processes.
    Discussion: Section 615 of the Act uses the term ``complaint'' to 
refer to due process complaints. We have used the phrase ``due process 
complaint'' instead of the statutory term ``complaint'' throughout 
these regulations to provide clarity and reduce confusion between due 
process complaints in section 615 of the Act and complaints under the 
State complaint procedures in Sec. Sec.  300.151 through 300.153. We 
believe this distinction is sufficient to reduce confusion and it is 
not necessary to add further clarification regarding the use of the 
term ``complaint'' in these regulations.

[[Page 46601]]

    The regulations for State complaints under Sec. Sec.  300.151 
through 300.153 provide for the resolution of any complaint, including 
a complaint filed by an organization or an individual from another 
State alleging that the public agency violated a requirement of Part B 
of the Act or of part 300. The public agency must resolve a State 
complaint within 60 days, unless there is a time extension as provided 
in Sec.  300.152(b). Due process complaints, as noted in Sec.  300.507, 
however, may be filed by a parent or a public agency, consistent with 
Sec. Sec.  300.507 through 300.508 and Sec. Sec.  300.510 through 
300.515.
    Changes: None.
Adoption of State Complaint Procedures (Sec.  300.151)
    Comment: Many commenters recommended that only issues related to 
violations of the law should be subject to the State complaint process. 
One commenter stated that the State complaint procedures should be used 
only for systemic violations that reach beyond the involvement of one 
child in a school.
    A few commenters requested that the regulations clarify that the 
State complaint procedures can be used for the denial of appropriate 
services and the failure to provide FAPE in accordance with a child's 
IEP. However, some commenters requested that the regulations clarify 
that disputes involving appropriateness of services and whether FAPE 
was provided should be dealt with in a due process hearing. One 
commenter stated that the State complaint procedures should be used to 
investigate whether required procedures were followed and not to 
determine if evaluation data and student-specific data support the IEP 
Team's determination of what is appropriate for the child. The 
commenter went on to state that the procedures for administrative 
hearings permit the examination and cross-examination of expert 
witnesses and establishing the credibility of the testimonies, which 
are the functions of a hearing officer, not SEA complaint specialists.
    Discussion: Some commenters, as noted above, seek to limit the 
scope of the State complaint system. We believe the broad scope of the 
State complaint procedures, as permitted in the regulations, is 
critical to each State's exercise of its general supervision 
responsibilities. The complaint procedures provide parents, 
organizations, and other individuals with an important means of 
ensuring that the educational needs of children with disabilities are 
met and provide the SEA with a powerful tool to identify and correct 
noncompliance with Part B of the Act or of part 300. We believe placing 
limits on the scope of the State complaint system, as suggested by the 
commenters, would diminish the SEA's ability to ensure its LEAs are in 
compliance with Part B of the Act and its implementing regulations, and 
may result in an increase in the number of due process complaints filed 
and the number of due process hearings held.
    We do not believe it is necessary to clarify in the regulations 
that the State complaint procedures can be used to resolve a complaint 
regarding the denial of appropriate services or FAPE for a child, since 
Sec.  300.153 is sufficiently clear that an organization or individual 
may file a written complaint that a public agency has violated a 
requirement of Part B of the Act or part 300. The State complaint 
procedures can be used to resolve any complaint that meets the 
requirements of Sec.  300.153, including matters concerning the 
identification, evaluation, or educational placement of the child, or 
the provision of FAPE to the child.
    We believe that an SEA, in resolving a complaint challenging the 
appropriateness of a child's educational program or services or the 
provision of FAPE, should not only determine whether the public agency 
has followed the required procedures to reach that determination, but 
also whether the public agency has reached a decision that is 
consistent with the requirements in Part B of the Act in light of the 
individual child's abilities and needs. Thus, the SEA may need to 
review the evaluation data in the child's record, or any additional 
data provided by the parties to the complaint, and the explanation 
included in the public agency's notice to the parent as to why the 
agency made the determination regarding the child's educational program 
or services. If necessary, the SEA may need to interview appropriate 
individuals, to determine whether the agency followed procedures and 
applied standards that are consistent with State standards, including 
the requirements of Part B of the Act, and whether the determination 
made by the public agency is consistent with those standards and 
supported by the data. The SEA may, in its effort to resolve a 
complaint, determine that interviews with appropriate individuals are 
necessary for the SEA to obtain the relevant information needed to make 
an independent determination as to whether the public agency is 
violating a requirement of Part B of the Act or of part 300. However, 
such interviews conducted by the SEA, as part of its effort to resolve 
a State complaint, are not intended to be comparable to the requirement 
in section 615(h)(2) of the Act, which provides any party to a due 
process hearing the right to present evidence and confront, cross-
examine, and compel the attendance of witnesses.
    In addition, a parent always has the right to file a due process 
complaint and request a due process hearing on any matter concerning 
the identification, evaluation, or educational placement of his or her 
child, or the provision of FAPE and may seek to resolve their disputes 
through mediation. It is important to clarify that when the parent 
files both a due process complaint and a State complaint on the same 
issue, the State must set aside any part of the complaint that is being 
addressed in the due process hearing until the conclusion of the 
hearing. However, any issue in the complaint that is not a part of the 
due process hearing must be resolved using the State complaint 
procedures in Sec.  300.152, including using the time limit and 
procedures in paragraphs (b) and (d) of Sec.  300.152. (See Sec.  
300.152(c)(1)). Under the Act, the decision reached through the due 
process proceedings is the final decision on those matters, unless a 
party to the hearing appeals that decision by requesting State-level 
review, if applicable, or by bringing a civil action in an appropriate 
State or Federal court.
    Changes: None.
    Comment: A few commenters requested amending Sec.  300.151(a)(2) to 
specifically include school personnel and teacher organizations in the 
list of entities to whom the SEA must disseminate the State complaint 
procedures. Another commenter requested that representatives of private 
schools or residential treatment facilities be included on the list of 
entities to whom the State must disseminate complaint procedures.
    Discussion: Section 300.151(a)(2) already requires the State to 
widely disseminate the State complaint procedures in Sec. Sec.  300.151 
through 300.153 to parents and other interested parties, including 
parent training and information centers, protection and advocacy 
organizations, independent living centers, and other appropriate 
entities. There is nothing in these regulations that would prevent a 
State from disseminating information about the State complaint 
procedures to school personnel, teacher organizations, or 
representatives of private schools or residential facilities. However, 
we believe this decision is best left to the States. We do not believe 
that there is a need to add these entities to the mandatory 
distribution as individuals involved in the education of children

[[Page 46602]]

with disabilities are generally acquainted with these procedures.
    Changes: None.
Remedies for Denial of Appropriate Services (Sec.  300.151(b))
    Comment: Many commenters requested retaining current Sec.  
300.660(b)(1), regarding the awarding of monetary reimbursement as a 
remedy for denial of appropriate services. One commenter stated that 
the regulations should clarify that States continue to have authority 
to award monetary reimbursement, when appropriate. A few commenters 
stated that the regulations should clarify that monetary reimbursement 
is not appropriate for a majority of State complaints. Some commenters 
stated that removing current Sec.  300.660(b)(1) creates ambiguity and 
may result in increased litigation because parents may choose to use 
the more costly and time-consuming due process system if they believe 
that monetary relief is not available to them under the State complaint 
system. Some commenters stated that removing current Sec.  
300.660(b)(1) implies that monetary reimbursement is never appropriate. 
A few commenters stated that removing the monetary reimbursement 
provision in current Sec.  300.660(b)(1) suggests that the Department 
no longer supports the use of this remedy. A few commenters requested 
that the regulations clarify that compensatory services are an 
appropriate remedy when the LEA has failed to provide appropriate 
services.
    Discussion: The SEA is responsible for ensuring that all public 
agencies within its jurisdiction meet the requirements of the Act and 
its implementing regulations. In light of the SEA's general supervisory 
authority and responsibility under sections 612(a)(11) and 616 of the 
Act, we believe the SEA should have broad flexibility to determine the 
appropriate remedy or corrective action necessary to resolve a 
complaint in which the SEA has found that the public agency has failed 
to provide appropriate services to children with disabilities, 
including awarding monetary reimbursement and compensatory services. To 
make this clear, we will change Sec.  300.151 to include monetary 
reimbursement and compensatory services as examples of corrective 
actions that may be appropriate to address the needs of the child.
    Changes: We have added ``compensatory services or monetary 
reimbursement'' as examples of corrective actions in Sec.  
300.151(b)(1).
    Comment: One commenter stated that the remedies available in Sec.  
300.151(b) are silent about whether the complainant may be reimbursed 
for attorneys' fees and requested clarification as to whether 
reimbursement is permissible for State complaints. Another commenter 
requested that the language in section 615(i)(3)(B) of the Act, 
regarding the awarding of attorneys' fees for due process hearings, be 
included in the State complaint procedures as a way to limit 
repetitive, harassing complaints.
    Discussion: The awarding of attorneys' fees is not addressed in 
Sec.  300.151(b) because the State complaint process is not an 
administrative proceeding or judicial action, and, therefore, the 
awarding of attorneys' fees is not available under the Act for State 
complaint resolutions. Section 615(i)(3)(B) of the Act clarifies that a 
court may award attorneys' fees to a prevailing party in any action or 
proceeding brought under section 615 of the Act. We, therefore, may not 
include in the regulations the language from section 615(i)(3)(B) of 
the Act, as suggested by the commenters, because State complaint 
procedures are not an action or proceeding brought under section 615 of 
the Act.
    Changes: None.
Minimum State Complaint Procedures (Sec.  300.152)
Time Limit; Minimum Procedures (Sec.  300.152(a))
    Comment: One commenter suggested changing Sec.  300.152(a)(1), to 
include situations when the SEA is the subject of a complaint. Another 
commenter recommended that the State complaint procedures include how 
the SEA should handle a complaint against the SEA for its failure to 
supervise the LEA or failure to provide direct services when given 
notice that the LEA has failed to do so.
    Discussion: We do not believe it is necessary to specify in the 
regulations how the SEA should handle a complaint filed against the SEA 
because Sec.  300.151 clarifies that, if an organization or individual 
files a complaint, pursuant to Sec. Sec.  300.151 through 300.153, that 
a public agency has violated a requirement of Part B of the Act or part 
300, the SEA must resolve the complaint. Pursuant to Sec.  300.33 and 
section 612(a)(11) of the Act, the term public agency includes the SEA. 
The SEA must, therefore, resolve any complaint against the SEA pursuant 
to the SEA's adopted State complaint procedures. The SEA, however, may 
either appoint its own personnel to resolve the complaint, or may make 
arrangements with an outside party to resolve the complaint. If it 
chooses to use an outside party, however, the SEA remains responsible 
for complying with all procedural and remediation steps required in 
part 300.
    Changes: None.
    Comment: One commenter suggested that the regulations include 
language requiring an on-site investigation unless the SEA determines 
that it can collect all evidence and fairly determine whether a 
violation has occurred with the evidence provided by the complainant 
and a review of records.
    Discussion: We do not believe the regulations should require the 
SEA to conduct an on-site investigation in the manner suggested by the 
commenter because we believe Sec.  300.152(a)(1) is sufficient to 
ensure that an independent on-site investigation is carried out if the 
SEA determines that such an investigation is necessary to resolve a 
complaint. The minimum State complaint procedures in Sec.  300.152 are 
intended to be broad in recognition of the fact that States operate 
differently and standards appropriate to one State may not be 
appropriate in another State. Therefore, the standards to be used in 
conducting an on-site investigation are best determined by the State.
    Changes: None.
    Comment: One commenter stated that Sec.  300.152 would allow an 
unlimited period of time to resolve complaints and requested that the 
regulations limit the complaint resolution process to 30 days, similar 
to the procedures when a due process hearing is requested. A few 
commenters requested that the 60-day time limit be lengthened to 90 
days, given that many complaints involve complex issues and multiple 
interviews with school administrators.
    Discussion: Section 300.152 does not allow an unlimited period of 
time to resolve a complaint. Paragraph (a) of this section provides 
that an SEA has a time limit of 60 days after a complaint is filed to 
issue a written decision to the complainant that addresses each 
allegation in the complaint (unless, under paragraph (b) of this 
section, there is an extension for exceptional circumstances or the 
parties agree to extend the timeline because they are engaged in 
mediation or in other alternative means of dispute resolution, if 
available in the State). We believe the right of parents to file a 
complaint with the SEA alleging any violation of Part B of the Act or 
part 300 to receive a written decision within 60 days is reasonable in 
light of the SEA's responsibilities in resolving a complaint pursuant 
to its complaint procedures, and is appropriate to the interest of 
resolving allegations promptly. In

[[Page 46603]]

addition, the 60-day time limit for resolving a State complaint is a 
longstanding requirement and States have developed their State 
complaint procedures based on the 60-day time limit. We believe 
altering this timeframe would be unnecessarily disruptive to States' 
developed complaint procedures. For these reasons, we do not believe it 
is appropriate to change the time limit as recommended by the 
commenters.
    Changes: None.
    Comment: One commenter expressed concern that the regulations are 
silent as to how an amended State complaint should be handled. One 
commenter expressed concern about resolving complaints within the 60-
day time limit when the complainant submits additional information 
about the complaint and amends the complaint. The commenter requested 
that in such cases, the regulations should allow the 60-day time limit 
to begin from the date the State receives the amended complaint.
    Discussion: Section 300.152 provides that the complaint must be 
resolved 60 days after a complaint is filed and that the complainant 
must be given an opportunity to submit additional information, either 
orally or in writing, about the allegations in the complaint. 
Generally, if the additional information a parent submits is on the 
same or related incident, it would be part of the amended complaint. If 
the information submitted by the complainant is on a different or 
unrelated incident, generally, the new information would be treated as 
a separate complaint. On the other hand, if the information submitted 
by the complainant were on the same incident, generally, the new 
information would be treated as an amendment to the original complaint. 
It is, ultimately, left to each State to determine whether the new 
information constitutes a new complaint or whether it is related to a 
pending complaint. We believe the decision regarding whether the 
additional information is a new complaint or an amendment to an 
existing complaint, is best left to the State. The State must have the 
flexibility to make this determination based on the circumstances of a 
particular complaint and consistent with its State complaint process 
and, therefore, we do not believe it is appropriate to regulate further 
on this matter.
    There are no provisions in Part B of the Act or in these 
regulations that permit the 60-day time limit to begin from the date 
the State receives an amended complaint, if additional information 
submitted by the complainant results in an amendment to the complaint. 
However, Sec.  300.152(b) permits an extension of the 60-day time limit 
if exceptional circumstances exist or the parent and the public agency 
agree to extend the time limit to attempt to resolve the complaint 
through mediation.
    Changes: None.
    Comment: One commenter requested clarification regarding the time 
limit for a public agency to respond with a proposal to resolve the 
complaint.
    Discussion: The 60-day time limit to resolve a complaint does not 
change if a public agency decides to respond to the complaint with a 
proposal to resolve the complaint. However, Sec.  300.152(b)(2) permits 
the 60-day time limit to be extended under exceptional circumstances or 
if the parent and public agency agree to engage in mediation or in 
other alternative means of dispute resolution, if available in the 
State.
    Changes: None.
    Comment: One commenter expressed concern that Sec.  300.152(a) 
could limit the SEA's investigation of a complaint to an exchange of 
papers since the SEA is not required to conduct an on-site 
investigation.
    Discussion: Section 300.152 provides that the SEA must review all 
relevant information and, if it determines it to be necessary, carry 
out an independent on-site investigation in order to make an 
independent determination as to whether the public agency is violating 
a requirement of Part B of the Act or part 300. We believe the SEA is 
in the best position, and should have the flexibility, to determine 
what information is necessary to resolve a complaint, based on the 
facts and circumstances of the individual case. It is true that, in 
some cases, a review of documents provided by the parties may be 
sufficient for the SEA to resolve a complaint and that conducting an 
on-site investigation or interviews with staff, for example, may be 
unnecessary. The SEA, based on the facts in the case, must decide 
whether an on-site investigation is necessary. We also believe 
requiring an on-site investigation for each State complaint would be 
overly burdensome for public agencies and unnecessary.
    Changes: None.
    Comment: A few commenters requested adding language to proposed 
Sec.  300.152(a)(3) to allow an SEA to provide opportunities for 
resolving the complaint through mediation and other informal mechanisms 
for dispute resolution with any party filing a complaint, not only the 
parents. Some commenters requested that the regulations clarify that 
mediation is the appropriate method to resolve State complaints 
regarding the denial of appropriate services.
    A few commenters expressed concern that the phrase ``[w]ith the 
consent of the parent'' in proposed Sec.  300.152(a)(3) implies that 
complaints are disagreements between parents and public agencies, 
rather than allegations of violations of a child's or a parent's rights 
under the Act.
    A few commenters supported the use of mediation to resolve a 
complaint, but requested that alternative means of dispute resolution 
be deleted. Other commenters expressed concern that providing yet 
another means of initiating mediation or other dispute resolution is 
unnecessary because these options are already available to parties who 
wish to use them. A few commenters requested that the regulations 
define alternative means of dispute resolution.
    Discussion: Section 300.152(a)(3) was proposed to encourage 
meaningful, informal, resolution of disputes between the public agency 
and parents, organizations, or other individuals by providing an 
opportunity for parties to resolve disputes at the local level without 
the need for the SEA to resolve the matter. We believe that, at a 
minimum, the State's complaint procedures should allow the public 
agency that is the subject of the complaint the opportunity to respond 
to a complaint by proposing a resolution and provide an opportunity for 
a parent who has filed a complaint and the public agency to resolve a 
dispute by voluntarily engaging in mediation. However, we do not 
believe that the SEA should be required to offer other alternative 
means of dispute resolution, and so will remove the reference to these 
other alternatives from the minimum procedures in Sec.  300.152(a)(3).
    We believe it is important to retain the provision in Sec.  
300.152(a)(3)(ii) (proposed Sec.  300.152(a)(3)(B)), with modification, 
to reinforce the use of voluntary mediation as a viable option for 
resolving disputes between the public agency and the parents at the 
local level prior to the SEA investigating, if necessary, and resolving 
a dispute. Resolving disputes between parties at the local level 
through the use of mediation, or other alternative means of dispute 
resolution, if available in the State, will be less adversarial and 
less time consuming and expensive than a State complaint investigation, 
if necessary, or a due process hearing and, ultimately, children with 
disabilities will be the beneficiaries of a local level resolution.
    Requiring that the public agency provide an opportunity for the 
parent

[[Page 46604]]

who has filed a complaint and the public agency to voluntarily engage 
in mediation in an effort to resolve a dispute is an appropriate 
minimum requirement and consistent with the statutory provision in 
section 615(e) of the Act that voluntary mediation be made available to 
parties (i.e., parent and public agency) to disputes involving any 
matter under Part B of the Act, including matters arising prior to the 
filing of a due process complaint. However, the statute does not 
require that mediation be available to other parties, and we believe it 
would be burdensome to expand, through regulation, new Sec.  
300.152(a)(3)(ii) (proposed Sec.  300.152(a)(3)(B)) to require that 
States offer mediation to non-parents. Although we do not believe we 
should regulate to require that mediation be offered to non-parents, 
there is nothing in the Act or these regulations that would preclude an 
SEA from permitting the use of mediation, or other alternative dispute 
resolution mechanisms, if available in the State, to resolve a State 
complaint filed by an organization or individual other than a parent, 
and we will add language to Sec.  300.152(b)(1)(ii) to permit 
extensions of the timeline if the parties are voluntarily engaged in 
any of these dispute resolution procedures. In fact, we encourage SEAs 
and their public agencies to consider alternative means of resolving 
disputes between the public agency and organizations or other 
individuals, at the local level, consistent with State law and 
administrative procedures. It is up to each State, however, to 
determine whether non-parents can use mediation or other alternative 
means of dispute resolution.
    Section 615(e) of the Act makes clear that mediation is a voluntary 
mechanism for resolving disputes and may not be used to delay or deny a 
parent's right to a due process hearing on the parent's due process 
complaint, or to deny any other rights afforded under Part B of the 
Act. In light of the fact that mediation is a voluntary process, the 
parties only need to agree to engage in mediation and it is not 
necessary to obtain parental written consent to engage in this 
voluntary process. We will, therefore, change new Sec.  
300.152(a)(3)(ii) (proposed Sec.  300.152(a)(3)(B)) by removing the 
phrase ``[w]ith the consent of the parent'' and adding a reference to 
Sec.  300.506.
    We do not believe it is necessary to include in the regulations a 
definition of the term ``alternative means of dispute resolution'' 
because the term is generally understood to refer to other procedures 
and processes that States have found to be effective in resolving 
disputes quickly and effectively but does not include those dispute 
resolution processes required under the Act or these final regulations.
    Changes: We have changed new Sec.  300.152(a)(3)(ii) (proposed 
Sec.  300.152(a)(3)(B)) by removing ``with the consent of the parent'' 
and ``or other alternative means of dispute resolution'' and adding a 
reference to Sec.  300.506. We have also amended Sec.  
300.152(b)(1)(ii), as stated above, to clarify that a public agency's 
State complaint procedures must permit an extension of the 60-day time 
limit if a parent (or individual or organization, if mediation, or 
other alternative means of dispute resolution is available to the 
individual or organization under State procedures) who has filed a 
complaint and the public agency voluntarily agree to extend the time to 
engage in mediation or other alternative means of dispute resolution, 
if available in the State.
    Comment: A few commenters stated that the agreement to extend the 
60-day time limit (to allow the parties to engage in mediation, or 
alternative means of dispute resolution, or both) should meet the 
consent requirements in Sec.  300.9. One commenter requested an 
extension of the 60-day time limit to resolve complaints when mediation 
is underway.
    Discussion: We do not agree that consent, as defined in Sec.  
300.9, should be required to extend the 60-day time limit because it 
would add burden and is not necessary. It is sufficient to require 
agreement of the parties. At any time that either party withdraws from 
mediation or other alternative means of dispute resolution, or 
withdraws agreement to the extension of the time limit, the extension 
would end. We believe Sec.  300.152(b) is sufficiently clear that an 
extension of the 60-day time limit is permissible if exceptional 
circumstances exist with respect to a particular complaint, or if the 
parent and the public agency agree to extend the time to engage in 
mediation. We also believe it would be permissible to extend the 60-day 
time limit if the public agency and an organization or other individual 
agree to engage in an alternative means of dispute resolution, if 
available in the State, and the parties agree to extend the 60-day time 
limit. We will revise Sec.  300.152(b)(1)(ii) to include this 
exception.
    Changes: We have revised Sec.  300.152(b)(1)(ii) to clarify that it 
would be permissible to extend the 60-day time limit if the parties 
agree to engage in other alternative means of dispute resolution, if 
available in the State.
    Comment: Several commenters requested that Sec.  300.152(a) be 
modified to include language allowing parents, in addition to the 
public agency, an opportunity to submit a proposal to resolve the 
complaint.
    Discussion: We do not believe it is necessary to include the 
language in Sec.  300.152(a) as suggested by the commenter because 
Sec.  300.153(b)(4)(v) already requires that the signed written 
complaint submitted to the SEA by the complainant include a proposed 
resolution to the problem. A parent who is a complainant must include a 
proposed resolution to the problem to the extent known and available to 
the parent at the time the complaint is filed.
    Changes: None.
Complaints Filed Under This Section and Due Process Hearings Under 
Sec.  300.507 or Sec. Sec.  300.530 Through 300.532 (Sec.  300.152(c))
    Comment: A few commenters requested that the regulations include a 
provision to allow parents to use the State complaint process to 
enforce agreements reached in mediation and resolution sessions. One 
commenter expressed concern that if an SEA does not have authority to 
enforce agreements arising from mediation and resolution sessions, the 
burden will be on a parent to incur costs necessary to file a petition 
with a court to have the agreement enforced.
    Discussion: The Act provides that the enforcement and 
implementation of agreements reached through mediation and resolution 
sessions may be obtained through State and Federal courts. Section 
300.506(b)(7), consistent with section 615(e)(2)(F)(iii) of the Act, 
states that a written, signed mediation agreement is enforceable in any 
State court of competent jurisdiction or in a district court of the 
United States. Similarly, Sec.  300.510(c)(2), consistent with section 
615(f)(1)(B)(iii)(II) of the Act, states that a written settlement 
agreement resulting from a resolution meeting is enforceable in any 
State court of competent jurisdiction or in a district court of the 
United States.
    However, as noted in the Analysis of Comments and Changes for 
subpart E, we have added new Sec.  300.537 that allows, but does not 
require, a State to have mechanisms or procedures that permit parties 
to mediation or resolution agreements to seek enforcement of those 
agreements and decisions at the SEA level. We believe this provision is 
sufficient to allow States the flexibility to determine what mechanisms 
or procedures, if any, may be appropriate to enforce such agreements, 
including utilizing their

[[Page 46605]]

State complaint procedures, if they choose to do so, so long as the 
mechanisms or procedures are not used to deny or delay a parent's right 
to seek enforcement through State and Federal courts.
    Changes: None.
    Comment: Numerous commenters requested that current Sec.  
300.661(c)(3), regarding the SEA's responsibility to resolve complaints 
alleging a public agency's failure to implement due process decisions, 
be retained. Many commenters raised concerns that removing this 
language will lead to more litigation. One commenter stated that 
parents would be forced to litigate due process decisions, which will 
prolong the denial of FAPE to children. Another commenter stated that 
not allowing States to enforce a hearing officer's decision encourages 
litigation because it is the only avenue for relief. Several commenters 
stated that parents are placed at a disadvantage because they may not 
have the resources to file in State or Federal court.
    Discussion: The SEA's obligation to implement a final hearing 
decision is consistent with the SEA's general supervisory 
responsibility, under sections 612(a)(11) and 616 of the Act, over all 
education programs for children with disabilities in the State, which 
includes taking necessary and appropriate actions to ensure that the 
provision of FAPE and all the requirements in Part B of the Act and 
part 300 are carried out. However, we agree that the requirements from 
current Sec.  300.661(c)(3) should be retained for clarity.
    Changes: We have added the requirement in current Sec.  
300.661(c)(3) as new Sec.  300.152(c)(3).
    Comment: Numerous commenters requested retaining current Sec.  
300.661(c)(1), which requires that any issue in the complaint that is 
not a part of a due process complaint be resolved using the applicable 
State complaint timelines and procedures. One commenter stated that 
Sec.  300.152(c)(1) requires the State to set aside an entire complaint 
if due process proceedings commence with respect to any subject that is 
raised in the complaint. A few commenters expressed concern that if 
issues in a State complaint, which are not part of a due process 
complaint, are not investigated until the due process complaint is 
resolved, children may go without FAPE for extended periods of time. 
These commenters also stated that parents are likely to file for due 
process on every issue of concern, rather than using the more 
expeditious and less expensive State complaint procedures.
    Discussion: We agree that language in current Sec.  300.661(c), 
requiring that States set aside any part of a State complaint that is 
being addressed in a due process hearing, until the conclusion of the 
hearing and resolve any issue that is not a part of the due process 
hearing, should be retained.
    Changes: We have revised Sec.  300.152(c)(1) by adding the 
requirements in current Sec.  300.661(c)(1) to the regulations.
    Comment: One commenter stated that the regulations do not address 
the disposition of a complaint if a parent and a public agency come to 
a resolution of a complaint through mediation. One commenter 
recommended that the regulations provide guidance on how an SEA should 
handle a complaint that is withdrawn. Another commenter requested 
clarification on what should occur if an SEA does not approve of the 
agreement reached between the parent and the public agency.
    Discussion: We do not believe it is necessary to regulate on these 
matters, as recommended by the commenters. Section 615(e)(2)(F) of the 
Act and Sec.  300.506(b)(7) clarify that an agreement reached through 
mediation is a legally binding document enforceable in State and 
Federal courts. Therefore, an agreement reached through mediation is 
not subject to the SEA's approval. We strongly encourage parties to 
resolve a complaint at the local level without the need for the SEA to 
intervene. If a complaint is resolved at the local level or is 
withdrawn, no further action is required by the SEA to resolve the 
complaint.
    Changes: None.
    Comment: One commenter suggested including language in the 
regulations that would require parties to provide evidence under threat 
of perjury. Another commenter stated that the State complaint process 
should be non-adversarial and that neither party should have the right 
to review the other's submissions or to cross-examine the other party.
    Discussion: We do not believe it is appropriate to include the 
language suggested by the commenters because we believe requiring 
parties to provide evidence under the threat of perjury, permitting 
parties to review submissions, and allowing one party to cross-examine 
the other party are contrary to the intent of the State complaint 
process. The State complaint process is intended to be less adversarial 
than the more formal filing of a due process complaint and possibly 
going to a due process hearing. To make the changes requested by the 
commenters will serve only to make the State complaint process more 
adversarial and will not be in the best interest of the child. The 
State complaint procedures in Sec. Sec.  300.151 through 300.153 do not 
require parties to provide evidence, nor do they require that a State 
allow parties to review the submissions of the other party or to cross-
examine witnesses.
    Changes: None.
Filing a Complaint (Sec.  300.153)
    Comment: One commenter recommended the regulations include a limit 
on the number of times that an individual may file a State complaint 
against a public agency.
    Discussion: An SEA is required to resolve any complaint that meets 
the requirements of Sec.  300.153, including complaints that raise 
systemic issues, and individual child complaints. It would be 
inconsistent with the Act's provisions in section 616 regarding 
enforcement and the Act's provisions in section 612 regarding general 
supervision for an SEA to have a State complaint procedure that removes 
or limits a party's right to file a complaint that a public agency has 
violated a requirement of Part B of the Act or part 300, including 
limiting the number of times a party can file a complaint with the SEA. 
Therefore, it is not appropriate to include in the regulations the 
language suggested by the commenter, nor should the SEA include in its 
State complaint procedures any restriction on the number of times a 
party can file a complaint, as long as the complaint meets the 
requirements of Sec.  300.153.
    Changes: None.
    Comment: Many commenters requested retaining current Sec.  
300.662(c), which permits a complaint to be filed about a violation 
that occurred more than one year prior to the date the complaint is 
received if the violation is continuing or the complainant is 
requesting compensatory services for a violation that occurred more 
than three years prior to the date the complaint is received.
    Some commenters requested that the regulations permit a parent to 
have as much time to file a State complaint as a parent would have to 
file a due process complaint (two years, unless provided otherwise by 
State law). One commenter stated that extensions of the statute of 
limitations should be granted when circumstances warrant an extension.
    Another commenter suggested adding language providing that the 
timeline begins when a parent first learns about the violation. A few 
commenters stated that parents need a longer statute of

[[Page 46606]]

limitations for State complaints because they do not always know about 
violations when they occur and may not fully understand how the 
violation affects their child's education.
    Several commenters stated that Congress did not intend to create a 
one-year statute of limitations for State complaints when it created a 
two-year statute of limitations for due process hearings. Several 
commenters stated that there is no evidence that Congress intended to 
change the current three-year statute of limitations on the parents' 
right to file a State complaint when the violation is ongoing or 
compensatory services are being requested.
    Discussion: We believe a one-year timeline is reasonable and will 
assist in smooth implementation of the State complaint procedures. The 
references to longer periods for continuing violations and for 
compensatory services claims in current Sec.  300.662(c) were removed 
to ensure expedited resolution for public agencies and children with 
disabilities. Limiting a complaint to a violation that occurred not 
more than one year prior to the date that the complaint is received 
will help ensure that problems are raised and addressed promptly so 
that children receive FAPE. We believe longer time limits are not 
generally effective and beneficial to the child because the issues in a 
State complaint become so stale that they are unlikely to be resolved. 
However, States may choose to accept and resolve complaints regarding 
alleged violations that occurred outside the one-year timeline, just as 
they are free to add additional protections in other areas that are not 
inconsistent with the requirements of the Act and its implementing 
regulations. For these reasons, we do not believe it is necessary to 
retain the language in current Sec.  300.662(c).
    We do not believe it is appropriate to change the timeline to begin 
when a parent first learns about the violation, as suggested by the 
commenter, because such a provision could lead to some complaints being 
filed well beyond one year from the time the violation actually 
occurred. This also would make the issue of the complaint so stale that 
the SEA would not be able to reasonably resolve the complaint and 
recommend an appropriate corrective action.
    As we stated earlier in the Analysis of Comments and Changes for 
this subpart, Congress did not specifically address or detail a State 
complaint process in the Act; nor did Congress express an opinion 
regarding the time limit for filing a complaint under a State's 
complaint process.
    Changes: None.
    Comment: Several commenters stated that Sec.  300.153(c) appears to 
indicate that if a State complaint, is also the subject of a due 
process complaint, the time period to file the complaint is two years, 
rather than the one-year time limit applicable for all other State 
complaints. Several commenters stated that this provision should be 
removed and that a one-year limitation should apply to all State 
complaints, regardless of whether a request for a due process hearing 
is filed on the issue(s) in the complaint.
    Discussion: If a State complaint contains multiple issues of which 
one or more is part of a due process hearing, the one-year statute of 
limitations would apply to the issues that are resolved under the State 
complaint procedures; the State due process statute of limitations 
would apply to the issues that are the subject of the due process 
hearing. We agree that the language in Sec.  300.153 is confusing and 
will amend the language to remove the reference to the due process 
complaint.
    Changes: We have removed the phrase, ``Except for complaints 
covered under Sec.  300.507(a)(2)'' in Sec.  300.153(c).
    Comment: Some commenters recommended removing the requirement in 
Sec.  300.153(d) that requires the party filing the complaint to 
forward a copy of the complaint to the LEA or public agency serving the 
child at the same time the party files the complaint with the SEA. One 
commenter stated that filing a complaint is onerous enough for parents, 
without including an extra step of requiring a copy of the complaint to 
be forwarded to the school. One commenter stated that this poses an 
unnecessary paperwork burden on parents. A few commenters stated that 
forwarding a copy of the complaint to the LEA should be the 
responsibility of the SEA, not the parents.
    One commenter expressed concern that requiring the party filing the 
complaint to forward a copy of the complaint to the LEA or public 
agency serving the child will discourage parents or school personnel 
whistle blowers from filing a complaint and recommended instead, that 
the regulations require SEAs to provide the LEA with a concise 
statement of fact upon which the complaint is based and the provisions 
of laws and rules that are at issue. A few commenters requested 
including language in Sec.  300.153(d) giving the SEA discretion to 
protect the confidentiality of the complainant. A few commenters 
recommended removing the requirement in Sec.  300.153(b)(3) for the 
written complaint to include the signature and contact information for 
the complainant.
    Discussion: The purpose of requiring the party filing the complaint 
to forward a copy of the complaint to the LEA or public agency serving 
the child, at the same time the party files the complaint with the SEA, 
is to ensure that the public agency involved has knowledge of the 
issues and an opportunity to resolve them directly with the complaining 
party at the earliest possible time. The sooner the LEA knows that a 
complaint is filed and the nature of the issue(s), the quicker the LEA 
can work directly with the complainant to resolve the complaint. We 
believe the benefit of having the complainant forward a copy of the 
complaint to the LEA or public agency far outweigh the minimal burden 
placed on the complainant because it will lead to a faster resolution 
of the complaint at the local level. For these reasons, we also do not 
believe it is more efficient to have the SEA forward the complaint to 
the public agency or provide the public agency with a statement 
summarizing the complaint.
    We do not believe that the complaint procedures should provide for 
the confidentiality of the complainant. The complainant should not 
remain unknown to the public agency that is the subject of the 
complaint because that public agency needs to know who the complainant 
is and something about the complaint (consistent with Sec.  300.153) 
before it can be expected to resolve the issues. We believe it is 
reasonable to require a party to file a signed complaint and provide 
contact information to the SEA in order to ensure the credibility of 
the complaint and provide the SEA with the basic contact information 
necessary for the SEA to handle complaints expeditiously. If the SEA 
receives a complaint that is not signed, as required in Sec.  300.153, 
the SEA may choose to dismiss the complaint.
    Changes: None.
    Comment: One commenter expressed concern that a parent must have 
legal knowledge in order to correctly file a State complaint.
    Discussion: Contrary to the commenter's assertion that a parent 
must have legal knowledge to file a complaint, we believe the State 
complaint procedures, which are under the direct control of the SEA, 
provide the parent and the school district with mechanisms that allow 
them to resolve differences without having to resort to a more costly 
and cumbersome due process complaint, which, by its nature, is 
litigious. We believe if a State effectively implements its State 
complaint procedures, both parents and public agencies will generally 
find the

[[Page 46607]]

process efficient and easy to initiate. We further believe that the 
requirement in Sec.  300.509 that each SEA must develop model forms to 
assist parents in filing a State complaint in accordance with 
Sec. Sec.  300.151 through 300.153, and in filing a due process 
complaint in accordance with Sec. Sec.  300.507(a) and 300.508(a) 
through (c), will make the process of filing such complaints much 
easier for parents and others.
    Changes: We have made a minor wording change in Sec.  300.153(b)(4) 
for clarity.
    Comment: One commenter stated that the complainant should not have 
to propose a resolution to the problem, as required in Sec.  
300.153(b)(4)(v), in order to have the State investigate a complaint.
    Discussion: Section 300.153(b)(4)(v) requires the complainant to 
propose a resolution to the complaint only to the extent known and 
available to the complainant at the time the complaint is filed. We 
believe this proposed resolution is necessary because it gives the 
complainant an opportunity to state what he or she believes to be the 
problem and how the complainant believes it can be resolved. This is 
important because it gives the complainant an opportunity to tell the 
public agency what is wrong and what it would take to fix the problem 
from the complainant's point of view. It also will give the LEA an 
opportunity to choose either to do as the complainant requests or 
propose a solution that it believes would resolve the issue raised by 
the complainant. Thus, if successful, the parties will avoid an 
adversarial relationship and possibly the expense of a due process 
hearing.
    Changes: None.
    Comment: One commenter requested that Sec.  300.153(d) include 
language allowing an LEA to appeal an SEA finding to an administrative 
hearing or the courts. Another commenter expressed concern that the 
State complaint procedures lack an appeals process for parties that 
lose under the State complaint procedures.
    Discussion: The regulations neither prohibit nor require the 
establishment of procedures to permit an LEA or other party to request 
reconsideration of a State complaint decision. We have chosen to be 
silent in the regulations about whether a State complaint decision may 
be appealed because we believe States are in the best position to 
determine what, if any, appeals process is necessary to meet each 
State's needs, consistent with State law.
    If a State chooses, however, to adopt a process for appealing a 
State complaint decision, such process may not waive any of the 
requirements in Sec. Sec.  300.151 through 300.153. Section 300.152 
requires that the SEA issue a final decision on each complaint within 
60 calendar days after the complaint is filed, unless the SEA extends 
the timeline as provided in Sec.  300.152(b). This means that, absent 
an appropriate extension of the timeline for a particular complaint, 
the State must issue a final decision within 60 calendar days.
    However, if after the SEA's final decision is issued, a party who 
has the right to request a due process hearing (that is, the parent or 
LEA) and who disagrees with the SEA's decision may initiate a due 
process hearing, provided that the subject of the State complaint 
involves an issue about which a due process hearing can be filed and 
the two-year statute of limitations for due process hearings (or other 
time limit imposed by State law) has not expired.
    Changes: None.
Method of Ensuring Services (Sec.  300.154)
Establishing Responsibility for Services (Sec.  300.154(a))
    Comment: One commenter suggested posting interagency agreements on 
SEA Web sites and in public buildings, and making them available upon 
request.
    Discussion: There is nothing in the Act or these regulations that 
would prohibit an SEA from posting interagency agreements on Web sites, 
in public buildings, or making them available upon request. However, we 
believe that it would be unnecessarily burdensome to require SEAs to do 
so and any decision regarding posting interagency agreements is best 
left to the States' discretion.
    Changes: None.
    Comment: One commenter stated that interagency agreements are 
important because agencies other than SEAs (e.g., mental health 
agencies that place children in residential facilities) are responsible 
for providing special educational services. The commenter requested 
that the regulations specify that residential facilities be allowed 
reimbursement for providing educational services and that children in 
these facilities are entitled to FAPE.
    Discussion: We do not believe it is necessary to further clarify in 
the regulations that children with disabilities who are placed in 
residential facilities by public agencies are entitled to FAPE because 
Sec.  300.146, consistent with section 612(a)(10)(B) of the Act, 
provides that SEAs must ensure that children with disabilities receive 
FAPE when they are placed in or referred to private schools or 
facilities by public agencies. Whether residential facilities can 
receive reimbursement for educational services will depend on how 
States have apportioned financial responsibility among State agencies 
and we do not believe that regulating on this issue is appropriate or 
necessary.
    Changes: None.
Obligation of Noneducational Public Agencies (Sec.  300.154(b))
    Comment: One commenter expressed concern that Sec.  300.154(b) 
allows LEAs to discontinue services when there is a dispute with other 
agencies and requested the regulations require LEAs to bear the 
ultimate responsibility for providing services.
    Discussion: We do not believe it is necessary to further clarify 
that the LEA is ultimately responsible for providing services because 
Sec.  300.154(b)(2) sufficiently requires that if a public agency other 
than an educational agency fails to provide or pay for the special 
education and related services in Sec.  300.154(b)(1), the LEA or State 
agency responsible for developing the child's IEP must provide or pay 
for these services to the child in a timely manner. Disagreements about 
the interagency agreements should not stop or delay the receipt of the 
services described in the child's IEP. Section 300.103(c) also 
addresses timely services and clarifies that, consistent with Sec.  
300.323(c), the State must ensure there is no delay in implementing a 
child's IEP, including any situation in which the source for providing 
or paying for the special education or related services to a child is 
being determined. Section 612(a)(12)(A)(i) of the Act provides that the 
financial responsibility of public agencies (other than an educational 
agency), including Medicaid and other public insurers obligated under 
Federal or State law or assigned responsibility under State policy, 
must precede financial responsibility of the LEA.
    Changes: None.
Children With Disabilities Who Are Covered by Public Benefits or 
Insurance (Sec.  300.154(d))
    Comment: One commenter expressed concern regarding the use of a 
parent's public benefits or insurance to pay for services required 
under Part B of the Act because co-payments and other out-of-pocket 
expenses would be a hardship to low-income families. A few commenters 
stated that services paid for by public benefits or insurance would 
count against a child's lifetime cap.
    Discussion: The commenters' concerns are addressed in Sec.  
300.154(d)(2)(ii) and (d)(2)(iii). Section 300.154(d)(2)(ii) states 
that a public agency may not require parents to incur

[[Page 46608]]

an out-of-pocket expense, such as the payment of a deductible or co-pay 
amount, in filing a claim for services, and may pay from funds reserved 
under the Act, the cost that the parent would otherwise be required to 
pay. In addition, Sec.  300.154(d)(2)(iii) states that a public agency 
may not use a child's benefits under a public benefits or insurance 
program if that use would decrease lifetime coverage or any other 
insured benefit; result in the family paying for services that would 
otherwise be covered by the public benefits or insurance program and 
that are required for the child outside of the time the child is in 
school; increase premiums or lead to the discontinuation of benefits or 
insurance; or risk loss of eligibility for home and community-based 
waivers, based on aggregate health-related expenditures.
    Changes: None.
    Comment: One commenter suggested changing ``parental consent'' to 
``informed parental consent.'' One commenter recommended requiring 
public agencies to obtain parental consent each time the public agency 
seeks to access the parent's public benefits or insurance. Some 
commenters recommended removing the requirement to obtain parental 
consent to use Medicaid benefits to pay for services required under 
Part B of the Act. A few commenters opposed requiring parental consent, 
stating the process is an administrative burden. Other commenters 
recommended waiving the requirement for consent if the agency has taken 
reasonable measures to obtain such consent or the parent's consent was 
given to the State Medicaid Agency.
    Discussion: In order for a public agency to use the Medicaid or 
other public benefits or insurance program in which a child 
participates to provide or pay for services required under the Act, the 
public agency must provide the benefits or insurance program with 
information from the child's education records (e.g., services 
provided, length of the services). Information from a child's education 
records is protected under the Family Educational Rights and Privacy 
Act of 1974, 20 U.S.C. 1232(g) (FERPA), and section 617(c) of the Act. 
Under FERPA and section 617(c) of the Act, a child's education records 
cannot be released to a State Medicaid agency without parental consent, 
except for a few specified exceptions that do not include the release 
of education records for insurance billing purposes. Parental consent 
requires, among other things, that the parent be fully informed in his 
or her native language, or other mode of communication, consistent with 
Sec.  300.9. Thus, there is no need to change ``parental consent'' to 
``informed consent,'' as recommended by one commenter. However, we 
believe it would avoid confusion for the references to ``consent'' in 
paragraphs (d) and (e) in Sec.  300.154 to be consistent. Therefore, we 
will add a reference to Sec.  300.9 in Sec.  300.154(d)(2)(iv)(A) and 
delete ``informed'' from Sec.  300.154(e)(1).
    We believe obtaining parental consent each time the public agency 
seeks to use a parent's public insurance or other public benefits to 
provide or pay for a service is important to protect the privacy rights 
of the parent and to ensure that the parent is fully informed of a 
public agency's access to his or her public benefits or insurance and 
the services paid by the public benefits or insurance program. 
Therefore, we will revise Sec.  300.154(d)(2)(iv) to clarify that 
parental consent is required each time the public agency seeks to use 
the parent's public insurance or other public benefits. We do not 
believe that it would be appropriate to include a provision permitting 
waiver of parental consent in this circumstance, even where a public 
agency makes reasonable efforts to obtain the required parental 
consent. However, we agree with the commenter that a public agency 
could satisfy parental consent requirements under FERPA and section 
617(c) of the Act if the parent provided the required parental consent 
to the State Medicaid agency, and the consent satisfied the Part B 
definition of consent in Sec.  300.9.
    We also believe that it is important to let parents know that their 
refusal to allow access to their public benefits or insurance does not 
relieve the public agency of its responsibility to ensure that all 
required services are provided at no cost to the parents. We will, 
therefore, add a new paragraph (B) to Sec.  300.154(d)(2)(iv) to make 
this clear.
    Finally, because we have referenced the definition of consent in 
Sec.  300.9 throughout the rest of these regulations, rather than the 
consent provisions in Sec.  300.622, we have removed the reference to 
Sec.  300.622.
    Changes: Section 300.154(d)(2)(iv) has been changed to clarify that 
consent must be obtained each time the public agency seeks to access a 
parent's public benefits or insurance and to clarify that a parent's 
refusal to allow access to the parent's public benefits or insurance 
does not relieve the public agency of its responsibility to ensure that 
all required services are provided at no cost to the parent. The 
reference to Sec.  300.622 has been removed and we have added 
``consistent with Sec.  300.9'' following ``parental consent'' in Sec.  
300.154(d)(2)(iv)(A). For consistency, we have removed ``informed'' 
before ``consent'' in Sec.  300.154(e)(1).
    Comment: One commenter stated that LEAs and agencies that, by law, 
must provide educational services should not be allowed to use public 
benefits or insurance to pay for these programs. One commenter 
suggested that the Act be more closely aligned with the Medicaid laws. 
One commenter requested requiring public benefits or insurance 
agencies, when paying for special education, to meet the standards of 
the Act, and not the standards for medical environments.
    Discussion: We disagree with the comment that LEAs and other public 
agencies responsible for providing special education and related 
services to children with disabilities should not be allowed to use 
public benefits or insurance to pay for these services. Pursuant to 
section 612(a)(12) of the Act, if a child is covered by a public 
benefits or insurance program and there is no cost to the family or the 
child in using the benefits of that program to support a service 
included in a child's IEP, the public agency is encouraged to use the 
public benefits or insurance to the extent possible. We believe public 
benefits or insurance are important resources for LEAs and other public 
agencies to access, when appropriate, to assist in meeting their 
obligation to make FAPE available to all children who are eligible to 
receive services.
    Section 300.103 retains the Department's longstanding provision 
that clarifies that each State may use whatever State, local, Federal, 
and private sources of support are available in the State to meet the 
requirements of part 300. Nothing in part 300 relieves an insurer or 
similar third party from an otherwise valid obligation to provide or 
pay for services provided to a child with a disability.
    The Act does not give the Department the authority to impose the 
standards of the Act on public benefits or insurance agencies, when 
paying for special education. If, however, a third party provider, such 
as a public benefits or insurance company, is unable to provide funding 
for services outside a clinical setting or other specific setting, the 
public agency cannot use the third party provider's inability to 
provide such funding as an appropriate justification for not providing 
a child with a disability FAPE in the LRE. Nothing in part 300 alters 
the requirements imposed on a State Medicaid agency, or any other 
agency administering a public benefits or insurance program by Federal 
statute, regulation, or policy under Title XIX or

[[Page 46609]]

Title XXI of the Social Security Act, 42 U.S.C. 1396 through 1396(v) 
and 42 U.S.C. 1397aa through 1397jj, or any other public benefits or 
insurance program. See section 612(a)(12) and (e) of the Act.
    We believe the regulations are sufficiently aligned with the 
Medicaid program and consistent with the Act and no further 
clarification is necessary.
    Changes: None.
    Comment: One commenter requested clarifying that a child cannot be 
denied Medicaid-supported medical services merely because he or she 
receives educational services funded by Medicaid.
    Discussion: We do not believe further clarification is necessary 
because Sec.  300.154(d)(2) is sufficiently clear that the child's 
receipt of Medicaid-funded educational services, consistent with the 
Act and these regulations, should not deny the child receipt of other 
services for which he or she may be eligible under Medicaid or other 
noneducational programs. Further, Sec.  300.103(b) provides that 
nothing in part 300 relieves an insurer or third party from an 
otherwise valid obligation to pay for services provided to a child with 
a disability.
    Changes: None.
    Comment: One commenter stated that LEAs and agencies that, by law, 
must provide educational services should not be allowed to use public 
benefits or insurance to pay for these programs. One commenter 
suggested that the Act be more closely aligned with the Medicaid laws. 
One commenter requested requiring public benefits or insurance 
agencies, when paying for special education, to meet the standards of 
the Act, and not the standards for medical environments.
    Discussion: We disagree with the comment that LEAs and other public 
agencies responsible for providing special education and related 
services to children with disabilities should not be allowed to use 
public benefits or insurance to pay for these services. Pursuant to 
section 612(a)(12) of the Act, if a child is covered by a public 
benefits or insurance program and there is no cost to the family or the 
child in using the benefits of that program to support a service 
included in a child's IEP, the public agency is encouraged to use the 
public benefits or insurance to the extent possible. We believe public 
benefits or insurance are important resources for LEAs and other public 
agencies to access, when appropriate, to assist in meeting their 
obligation to make FAPE available to all children who are eligible to 
receive services.
    Section 300.103 retains the Department's longstanding provision 
that clarifies that each State may use whatever State, local, Federal, 
and private sources of support are available in the State to meet the 
requirements of part 300. Nothing in part 300 relieves an insurer or 
similar third party from an otherwise valid obligation to provide or 
pay for services provided to a child with a disability.
    The Act does not give the Department the authority to impose the 
standards of the Act on public benefits or insurance agencies, when 
paying for special education. If, however, a third party provider, such 
as a public benefits or insurance company, is unable to provide funding 
for services outside a clinical setting or other specific setting, the 
public agency cannot use the third party provider's inability to 
provide such funding as an appropriate justification for not providing 
a child with a disability FAPE in the LRE. Nothing in part 300 alters 
the requirements imposed on a State Medicaid agency, or any other 
agency administering a public benefits or insurance program by Federal 
statute, regulation, or policy under Title XIX or Title XXI of the 
Social Security Act, 42 U.S.C. 1396 through 1396(v) and 42 U.S.C. 
1397aa through 1397jj, or any other public benefits or insurance 
program. See section 612(a)(12) and (e) of the Act.
    We believe the regulations are sufficiently aligned with the 
Medicaid program and consistent with the Act and no further 
clarification is necessary.
    Changes: None.
    Comment: One commenter requested clarifying that a child cannot be 
denied Medicaid-supported medical services merely because he or she 
receives educational services funded by Medicaid.
    Discussion: We do not believe further clarification is necessary 
because Sec.  300.154(d)(2) is sufficiently clear that the child's 
receipt of Medicaid-funded educational services, consistent with the 
Act and these regulations, should not deny the child receipt of other 
services for which he or she may be eligible under Medicaid or other 
noneducational programs. Further, Sec.  300.103(b) provides that 
nothing in part 300 relieves an insurer or third party from an 
otherwise valid obligation to pay for services provided to a child with 
a disability.
    Changes: None.
Personnel Qualifications (Sec.  300.156)
    Comment: One commenter requested that Sec.  300.156 use the term 
``standards'' when referring to personnel qualifications.
    Discussion: We are not changing Sec.  300.156 because its language 
follows the specific language in section 612(a)(14) of the Act. Current 
Sec.  300.136 refers to ``personnel standards'' but was removed 
consistent with the changes in section 612(a)(14) of the Act.
    Changes: None.
    Comment: Some commenters requested that the personnel qualification 
requirements in Sec.  300.156 apply to personnel who provide travel 
instruction and teachers of children with visual impairments. Other 
commenters requested that personnel who provide therapeutic recreation 
services be required to meet the personnel qualifications. Some 
commenters requested that the personnel qualifications apply to 
preschool special education teachers.
    Discussion: It is not necessary to list the specific personnel who 
provide services to children with disabilities under the Act and to 
whom the requirements in Sec.  300.156 apply because the regulations 
are sufficiently clear that all needed personnel are covered. This 
includes personnel who provide travel instruction or therapeutic 
recreation services; teachers of children with visual impairments, if 
such personnel are necessary to carry out the purposes of this part; 
and preschool teachers in States where preschool teachers are 
considered elementary school teachers. Section 300.156(a), consistent 
with section 612(a)(14)(A) of the Act, requires each SEA to establish 
and maintain personnel qualification requirements to ensure that 
personnel necessary to carry out the purposes of Part B of the Act and 
part 300 are appropriately and adequately prepared and trained, and 
have the content knowledge and skills to serve children with 
disabilities.
    Changes: None.
    Comment: One commenter stated that the regulations should define 
what it means to be qualified to provide services to children with 
disabilities under the Act. The commenter stated that the regulations 
do not include any requirements for general education teachers or 
administrators who are involved in providing instruction and services 
for children in special education.
    Discussion: It is not necessary to change the regulations to define 
what it means to be qualified to provide services because we believe 
that, aside from the ``highly qualified'' requirements for teachers and 
special education teachers in ESEA and the Act, other personnel 
qualifications are appropriately left to the States, in light of the 
variability in State circumstances. Further, Sec.  300.156, consistent 
with section 612(a)(14) of the Act, makes it clear that it is the 
responsibility of the

[[Page 46610]]

SEA, not the Federal government, to establish and maintain 
qualifications for personnel who provide services to children with 
disabilities under the Act.
    Changes: None.
    Comment: One commenter objected to the removal of the requirements 
for a comprehensive system of personnel development in current Sec.  
300.135. The commenter also stated that regular education teachers need 
to be trained to work with children with disabilities to ensure that 
their inclusion in the regular classroom is successful.
    Discussion: Current Sec.  300.135 required States to have in effect 
a system of personnel development to ensure an adequate supply of 
qualified special education, regular education, and related services 
personnel. Section 612(a)(14) of the Act removed this requirement. The 
removal of current Sec.  300.135, however, does not diminish the 
responsibility of each State to establish and maintain qualifications 
to ensure that personnel (including regular education teachers) 
necessary to carry out the purposes of the Act are appropriately and 
adequately prepared and trained, consistent with Sec.  300.156.
    Changes: None.
    Comment: Some commenters recommended that the regulations include 
language from note 97 of the Conf. Rpt., p. 192, which requires SEAs to 
establish rigorous qualifications for related services providers to 
ensure that children with disabilities receive the appropriate quality 
and quantity of care. Several commenters requested that the regulations 
require SEAs to consult with LEAs, other State agencies, the disability 
community, and professional organizations regarding appropriate 
qualifications for related services providers and different service 
delivery models (e.g., consultative, supervisory, and collaborative 
models).
    Discussion: We believe that States already have sufficient 
incentive to ensure that related services providers provide services of 
appropriate quality so that children with disabilities can achieve to 
high standards and that further regulation in this area is not 
necessary. Section 300.156(b), consistent with section 612(a)(14)(B) of 
the Act, includes the qualifications for related services personnel. 
There is nothing in the Act that requires SEAs to consult with LEAs, 
other State agencies, or other groups and organizations to determine 
the appropriate qualifications for related services providers and the 
use of different service delivery models, and while we agree that this 
is good practice and encourage SEAs to participate in such 
consultation, we do not believe that we should regulate in this manner. 
States should have the flexibility, based on each State's unique 
circumstances, to determine how best to establish and maintain 
standards for all personnel who are providers of special education and 
related services.
    Changes: None.
    Comment: Numerous commenters objected to Sec.  300.156(b) and the 
removal of the requirement in current Sec.  300.136 for State 
professional requirements to be based on the highest requirements in 
the State. The commenters stated that the removal of this requirement 
relaxes the qualification standards for speech-language pathologists 
and other related services personnel. Several commenters stated that 
speech-language professionals should be required to have advanced 
degrees (i.e., master's level) because a bachelor's degree does not 
provide adequate preparation. Many commenters expressed concern that 
the requirements in Sec.  300.156(b) will lead to a decline in the 
quality of related services provided to children with disabilities in 
public schools. Other commenters expressed concern that increasing the 
standards will exacerbate the shortage of related services personnel 
experienced by large urban school districts.
    Discussion: We are not changing Sec.  300.156 because it reflects 
the specific language in section 612(a)(14) of the Act, which was 
intended to provide greater flexibility to SEAs to establish 
appropriate personnel standards, including the standards for speech-
language pathologists. As indicated in note 97 of the Conf. Rpt., p. 
192, section 612(a)(14) of the Act removes the requirement for State 
professional requirements to be based on the highest requirements in 
the State because of concerns that the previous law, regarding the 
qualifications of related services providers, established an 
unreasonable standard for SEAs to meet, and as a result, led to a 
shortage of related services providers for children with disabilities. 
We believe that States can exercise the flexibility provided in Sec.  
300.156 and section 612(a)(14) of the Act while ensuring appropriate 
services for children with disabilities without additional regulation.
    Changes: None.
    Comment: Many commenters expressed concern that Sec.  300.156(b) 
establishes qualifications for related services providers in public 
schools that are less rigorous than the qualifications for related 
services providers who provide Medicaid services or services in other 
public settings, such as hospitals. The commenters stated that less 
rigorous qualifications would result in a two-tiered system in which 
related services providers in public schools will be less qualified 
than related services providers in other public agencies. Another 
commenter expressed concern that the relaxation of standards for 
speech-language pathologists would cause LEAs to lose Medicaid funds 
that are used to assist children with disabilities.
    Discussion: Section 300.156, consistent with section 
612(a)(14)(B)(i) of the Act, clarifies that it is up to each SEA to 
establish qualifications for personnel to carry out the purposes of the 
Act. This will require weighing the various policy concerns unique to 
each State. The qualifications of related services providers required 
under Medicaid, or in hospitals and other public settings, and the fact 
that Medicaid will not pay for providers who do not meet Medicaid 
provider qualifications should serve as an incentive for States that 
want to bill for medical services on children's IEPs to impose 
consistent requirements for qualifications of related services 
providers.
    Changes: None.
    Comment: Some commenters stated that related services personnel 
should be considered to have met the qualifications in Sec.  
300.156(b)(1), regarding State-recognized certification, licensing, 
registration or other comparable requirements, if such personnel hold 
an academic degree consistent with their profession's national 
certification or State license to practice; demonstrate satisfactory 
progress toward full certification in the schools as prescribed by the 
State; and assume related services personnel functions for a specified 
period not to exceed three years.
    A few commenters objected to the requirement that related services 
personnel must not have had certification or licensure requirements 
waived. One commenter stated that emergency, temporary, or provisional 
certificates are necessary for professionals relocating from different 
States or different countries, and predicted that professionals with 
emergency, temporary, or provisional certification would work for 
contract agencies to bypass the requirements.
    Discussion: We believe the provisions in Sec.  300.156(b) that 
State qualifications for related services personnel must include 
qualifications that are consistent with any State-approved or State-
recognized certification, licensing, registration, or other comparable 
requirements that apply to the professional discipline in which those 
personnel are providing special education or related services, are

[[Page 46611]]

sufficient to ensure related services personnel are qualified to 
provide appropriate services to children with disabilities while 
maintaining the States' flexibility to establish appropriate personnel 
standards for related services personnel. We do not believe, therefore, 
that it is necessary to include additional regulation as suggested by 
commenters.
    Section 300.156(b)(2)(ii) tracks the statutory requirement in 
section 612(a)(14)(B)(ii) of the Act, which requires that related 
services personnel not have certification or licensure requirements 
waived on an emergency, temporary, or provisional basis. We do not 
believe this provision unnecessarily hinders States from hiring 
professionals from other States or countries. States, in examining the 
credentials of prospective related services personnel from other States 
or countries, may find that their existing certification or licensure 
requirements are ones that these related services personnel could 
readily meet. Because each State has full authority to define and 
enforce its own requirements that personnel must meet in order to 
receive full State certification or licensure, States that employ 
related services personnel from other States or countries may, 
consistent with State law and policy, consider establishing a separate 
category of certification that would differ from emergency, temporary, 
or provisional certification in that the State would not be waiving any 
training or experiential requirements.
    Changes: None.
    Comment: One commenter recommended using nationally recognized 
standards to determine the qualifications of related services 
personnel. Another commenter recommended requiring SEAs to consider 
current professional standards in establishing appropriate 
qualifications for related services personnel. One commenter requested 
adding language to the regulations to prevent professional 
organizations from establishing personnel standards for related 
services personnel that override standards set by the SEA.
    Discussion: We do not believe it is necessary to regulate as 
suggested by the commenters because these matters are better left to 
States to decide as States are in the best position to determine 
appropriate professional requirements for their States. There is 
nothing in the Act that requires an SEA to determine qualifications of 
related services personnel based on nationally recognized standards or 
current professional standards. Professional organizations may 
establish personnel standards for related services personnel that 
differ from the standards established by a State, but section 
612(a)(14) of the Act clarifies that the State is responsible for 
establishing and maintaining personnel qualifications to ensure that 
related services personnel have the knowledge and skills to serve 
children with disabilities under the Act.
    Changes: None.
    Comment: A few commenters requested that the regulations specify 
that an SEA, and not the State, has the authority to establish 
certification and licensure qualifications of related services 
personnel.
    Discussion: We do not believe it is necessary to change the 
regulation because Sec.  300.156(b), which follows the language in 
section 612(a)(14)(B) of the Act, clarifies that the SEA must establish 
qualifications for related services personnel that are consistent with 
State-approved or State-recognized certification, licensing, 
registration, or other comparable requirements that apply to related 
services personnel.
    Changes: None.
    Comment: Some commenters requested that the regulations require 
related services providers who do not meet existing State standards to 
be supervised by qualified personnel.
    Discussion: Related services providers who do not meet the 
personnel qualifications established by the SEA would not be considered 
qualified to serve children with disabilities under the Act even with 
supervision by qualified personnel. Section 300.156(d), consistent with 
section 612(a)(14)(D) of the Act, clarifies that each State must ensure 
that LEAs take measurable steps to recruit, hire, train, and retain 
highly qualified special education personnel to provide special 
education and related services to children with disabilities under the 
Act.
    Changes: None.
    Comment: Some commenters recommended that the regulations require 
high standards for paraprofessionals. Several commenters requested 
guidance on the appropriate use of paraprofessionals to ensure that 
paraprofessionals and assistants are not used as a means of 
circumventing certification and licensing requirements for related 
services providers. A few commenters requested language clarifying that 
the elimination of the requirement that State professional requirements 
be based on the highest requirements in the State in current Sec.  
300.136(b) must not be used to justify the inappropriate use of 
paraprofessionals or related services providers. Another commenter 
asked that the regulations require States to ensure that 
paraprofessionals are properly supervised at all times. One commenter 
stated that the regulations should clarify the use of State standards 
for speech-language pathology paraprofessionals.
    Discussion: We believe the provisions in Sec.  300.156, consistent 
with section 612(a)(14) of the Act, are sufficient to ensure that 
paraprofessionals meet high standards and that including additional 
requirements in these regulations is unnecessary. These provisions 
require an SEA to establish and maintain qualifications to ensure that 
personnel, including paraprofessionals, are appropriately and 
adequately prepared and trained, and have the content knowledge and 
skills to serve children with disabilities; and require the 
qualifications for paraprofessionals to be consistent with any State-
approved or State-recognized certification, licensing, registration, or 
other comparable requirements that apply to the professional discipline 
in which those personnel are providing special education or related 
services. In addition, the ESEA requires that paraprofessionals working 
in a program supported by title I of the ESEA, including special 
education paraprofessionals who assist in instruction in title I-funded 
programs, have at least an associate's degree, have completed at least 
two years of college, or meet a rigorous standard of quality and 
demonstrate, through a formal State or local assessment, knowledge of, 
and the ability to assist in instruction in reading, writing, and 
mathematics, reading readiness, writing readiness, or mathematics 
readiness, as appropriate. Paraprofessionals in title I schools do not 
need to meet these requirements if their role does not involve 
instructional support, such as special education paraprofessionals who 
solely provide personal care services. For more information on the ESEA 
requirements for paraprofessionals, see 34 CFR 200.58 and section 1119 
of the ESEA, and the Department's nonregulatory guidance, Title I 
Paraprofessionals (March 1, 2004), which can be found on the 
Department's Web site at: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.ed.gov/policy/elsec/guid/paraguidance.pdf
.

    With regard to the commenter requesting that the regulations 
clarify the use of State standards for speech-language 
paraprofessionals, we do not believe it is appropriate to include 
clarification regarding a specific discipline in these regulations 
because the Act requires States to establish and maintain 
qualifications to ensure that paraprofessionals, including speech-
language paraprofessionals, are

[[Page 46612]]

appropriately and adequately prepared and trained.
    Section 300.156(b)(2)(iii), consistent with section 
612(a)(14)(B)(iii) of the Act, does specifically allow 
paraprofessionals and assistants who are appropriately trained and 
supervised, in accordance with State law, regulation, or written 
policy, to assist in providing special education and related services 
to children with disabilities under the Act. However, this provision 
should not be construed to permit or encourage the use of 
paraprofessionals as a replacement for teachers or related services 
providers who meet State qualification standards. To the contrary, 
using paraprofessionals and assistants as teachers or related services 
providers would be inconsistent with the State's duty to ensure that 
personnel necessary to carry out the purposes of Part B of the Act are 
appropriately and adequately prepared and trained. Paraprofessionals in 
public schools are not directly responsible for the provision of 
special education and related services to children with disabilities; 
rather, these aides provide special education and related services to 
children with disabilities only under the supervision of special 
education and related services personnel. We believe the provision in 
Sec.  300.156(b)(2)(iii) sufficiently ensures that paraprofessionals 
and assistants are adequately supervised and further clarification in 
these regulations is unnecessary.
    The Act makes clear that the use of paraprofessionals and 
assistants who are appropriately trained and supervised must be 
contingent on State law, regulation, and written policy giving States 
the option of determining whether paraprofessionals and assistants can 
be used to assist in the provision of special education and related 
services under Part B of the Act, and, if so, to what extent their use 
would be permissible. However, it is critical that States that use 
paraprofessionals and assistants to assist in providing special 
education and related services to children with disabilities do so in a 
manner that is consistent with the rights of children with disabilities 
to FAPE under Part B of the Act. There is no need to provide additional 
guidance on how States and LEAs should use paraprofessionals and 
assistants because States have the flexibility to determine whether to 
use them, and, if so, to determine the scope of their responsibilities.
    Changes: None.
    Comment: One commenter recommended different requirements for 
paraprofessionals who perform routine tasks and those who perform 
specific activities to assist in the provision of special education and 
related services.
    Discussion: We do not see the need to make a change to the 
regulations as suggested by the commenter because, under Sec.  300.156, 
consistent with section 612(a)(14) of the Act, SEAs have the 
responsibility for establishing and maintaining qualifications to 
ensure that personnel necessary to carry out the purposes of this part 
are appropriately and adequately prepared and trained. Furthermore, 
SEAs and LEAs have the flexibility to determine the tasks and 
activities to be performed by paraprofessionals and assistants, as long 
as they are consistent with the rights of children with disabilities to 
FAPE.
    It should be kept in mind, however, that the ESEA has different 
requirements for paraprofessionals, including special education 
paraprofessionals, who assist in instruction in title I schools versus 
paraprofessionals in title I schools who do not provide instructional 
support, such as special education paraprofessionals who solely provide 
personal care services.
    Changes: None.
    Comment: A number of comments were received on the qualifications 
for special education teachers in Sec.  300.156(c) that were similar to 
the comments received regarding the definition of highly qualified 
special education teacher in Sec.  300.18.
    Discussion: We combined and responded to these comments with the 
comments received in response to the requirements in Sec.  300.18.
    Changes: None.
    Comment: Some commenters requested that the regulations allow 
alternative routes to certification for related services personnel and 
other non-teaching personnel, just as such routes are allowed for 
highly qualified teachers.
    Discussion: As we stated earlier in this section, section 
612(a)(14)(B) of the Act, clarifies that the SEA must establish 
qualifications for related services personnel that are consistent with 
State-approved or State-recognized certification, licensing, 
registration, or other comparable requirements that apply to related 
services personnel. While the Act does not address alternative routes 
to certification programs for related services personnel or other non-
teaching personnel, there is nothing in the Act or the regulations that 
would preclude a State from providing for alternate routes for 
certification for related services personnel or other non-teaching 
personnel. It is, however, up to a State to determine whether related 
services or non-teaching personnel participating in alternative routes 
to certification programs meet personnel requirements established by 
the State, consistent with the requirements in Sec.  300.156 and 
section 612(a)(14) of the Act.
    Changes: None.
    Comment: Many commenters recommended that Sec.  300.156 provide 
more guidance to ensure that States and LEAs implement proven 
strategies for recruiting and retaining qualified personnel. A few 
commenters stated that this is especially important for speech-language 
pathologists because large caseloads, increased paperwork, and lack of 
time for planning and collaboration have been shown to contribute to 
their burn out and attrition. Several commenters recommended that 
strategies to recruit and retain qualified personnel include reasonable 
workloads, improved working conditions, incentive programs, salary 
supplements, loan forgiveness, tuition assistance, signing bonuses, 
streamlined application processes, State and national advertising 
venues, school and university partnerships, release time for 
professional development, certification reciprocity between States, 
grants to LEAs for recruitment and retention programs, alternate 
professional preparation models, caseload size standards, and classroom 
size standards.
    One commenter requested that the requirements to recruit, hire, 
train, and retain highly qualified personnel in Sec.  300.156(d) apply 
to paraprofessionals who provide special education and related 
services.
    Discussion: The list of strategies recommended by the commenters 
includes many strategies that may be effective in recruiting and 
retaining highly qualified personnel; however, we do not believe it is 
appropriate to include these or other strategies in our regulations 
because recruitment and retention strategies vary depending on the 
unique needs of each State and LEA. States and LEAs are in the best 
position to determine the most effective recruitment and retention 
strategies for their location.
    With regard to the comment regarding the applicability of Sec.  
300.156(d) to paraprofessionals who provide special education and 
related services, Sec.  300.156(d), consistent with section 
612(a)(14)(C) of the Act, applies to all personnel who provide special 
education and related services under the Act, including 
paraprofessionals.
    Changes: None.
    Comment: A few commenters stated that the rule of construction in 
Sec.  300.156(e) is inconsistent with the rule

[[Page 46613]]

of construction in the definition of highly qualified teacher in 
proposed Sec.  300.18(e). Some commenters requested that the 
regulations clarify that the rule of construction in Sec.  300.156(e) 
is applicable to both administrative and judicial actions.
    A few commenters requested that the regulations specify that a 
parent may file a State complaint with the State regarding failure of 
their child to receive FAPE because staff is not highly qualified. 
However, several commenters stated that parents should not be allowed 
to file a State complaint under Sec. Sec.  300.151 through 300.153 
regarding staff qualifications.
    Discussion: We agree that the rules of construction in both 
proposed Sec.  300.156(e) and proposed Sec.  300.18(e) must be revised 
so that both rules are the same. The changes will clarify that a parent 
or student may not file a due process complaint on behalf of a student, 
or file a judicial action on behalf of a class of students for the 
failure of a particular SEA or LEA employee to be highly qualified; 
however, a parent may file a complaint about staff qualifications with 
the SEA. In addition to permitting a parent to file a State complaint 
with the SEA, an organization or an individual may also file a 
complaint about staff qualifications with the SEA, consistent with the 
State complaint procedures in Sec. Sec.  300.151 through 300.153. We 
believe that this is appropriate given the wording of section 
612(a)(14)(E) of the Act `` * * * or to prevent a parent from filing a 
complaint about staff qualifications with the State educational 
agency'' and incorporated in the regulations in Sec.  300.156(e) and 
new Sec.  300.18(f) (proposed Sec.  300.18(e)). By incorporating the 
wording from the construction clause in section 612(a)(14)(E) of the 
Act in the regulations as previously noted, parents and other 
interested parties, may seek compliance through the State complaint 
process.
    Changes: We have added ``or a class of students'' to Sec.  
300.156(e) to clarify that a judicial action on behalf of a class of 
students may not be filed for failure of a particular SEA or LEA 
employee to be highly qualified. We have substituted the word, 
``employee'' for ``staff person'' to be more precise and for 
consistency with the rule of construction in new Sec.  300.18(f) 
(proposed Sec.  300.18(e)). We have also reformatted Sec.  300.156(e).
    Comment: Some commenters recommended adding language to the 
regulations restricting a parent's right to file a complaint regarding 
an LEA's failure to take measurable steps to recruit, hire, train, and 
retain highly qualified personnel.
    Discussion: We believe the regulations do not need clarification. 
Section Sec.  300.151(a) is sufficiently clear that an organization or 
individual may file a State complaint under Sec. Sec.  300.151 through 
300.153 alleging a violation of a requirement of Part B of the Act or 
of this part. This includes the requirement that an LEA take measurable 
steps to recruit, hire, train, and retain highly qualified personnel 
consistent with section 612(a)(14)(D) of the Act.
    Changes: None.
    Comment: Some commenters requested that the regulations clarify 
that, unless the State has statutory control over district staffing, 
parents cannot obtain compensatory damages or services or a private 
school placement based on the lack of highly qualified personnel.
    Discussion: We do not agree that the exception requested by the 
commenter should be added to the regulations because new Sec.  
300.18(f) (proposed Sec.  300.18(e)), and Sec.  300.156(e) are 
sufficiently clear that nothing in part 300 shall be construed to 
create a right of action on behalf of an individual child for the 
failure of a particular SEA or LEA staff person to be highly qualified.
    Changes: None.
    Comment: One commenter recommended that the qualifications of all 
personnel should be made a matter of public record.
    Discussion: To do as the commenter recommends would add burden for 
local school personnel and it is not required under the Act. In 
contrast, title I of the ESEA required that LEAs receiving title I 
funds provide parents, at their request, the qualifications of their 
children's classroom teachers. There is nothing in the Act or these 
regulations, however, which would prevent an SEA or LEA from adopting 
such a policy should it wish to do so. In the absence of a 
congressional requirement in the Act, such policies are matters best 
left to State law.
    Section 1111(h)(6) of the ESEA requires LEAs to inform parents 
about the professional qualifications of their children's classroom 
teachers. The ESEA requires that at the beginning of each school year, 
an LEA that accepts title I, part A funding must notify parents of 
students in title I schools that they can request information regarding 
their children's classroom teachers, including, at a minimum: (1) 
Whether the teacher has met the State requirements for licensure and 
certification for the grade levels and subject-matters in which the 
teacher provides instruction; (2) whether the teacher is teaching under 
emergency or other provisional status through which State qualification 
or licensing criteria have been waived; (3) the college major and any 
other graduate certification or degree held by the teacher, and the 
field of discipline of the certification or degree; and (4) whether the 
child is provided services by paraprofessionals, and if so, their 
qualifications. In addition, each title I school must provide each 
parent timely notice that the parent's child has been assigned, or has 
been taught for four or more consecutive weeks by, a teacher who is not 
highly qualified. These requirements apply only to special education 
teachers who teach core academic subjects in Title I schools.
    Changes: None.
Performance Goals and Indicators (Sec.  300.157)
    Comment: Several commenters recommended that the regulations retain 
current Sec.  300.137(a)(2), which requires that States have goals for 
the performance of children with disabilities in the State that are 
consistent, to the maximum extent appropriate, with other goals and 
standards for all children established by the State. The commenters 
specifically objected to the removal of the word ``maximum'' before 
``extent appropriate;'' and the removal of the word ``all'' before 
``children'' in Sec.  300.157(a)(4).
    Discussion: Section 612(a)(15)(A)(iv) of the Act specifically 
removed the words in current Sec.  300.137(a)(2) that the comment 
references. Therefore, we believe that it would be contrary to the 
intent of the statutory drafters to restore these words to the 
regulatory provision.
    Changes: None.
    Comment: A few commenters requested that the regulations in Sec.  
300.156(b) require States to involve parent centers in establishing the 
performance goals and indicators and measurable annual objectives for 
children with disabilities.
    Discussion: We encourage broad stakeholder involvement in the 
development of performance goals, indicators, and annual objectives for 
children with disabilities, including the involvement of parent 
centers. We see no need to single out a particular group, however. The 
regulations in Sec.  300.165(a) already require specific public 
participation in the adoption of policies and procedures needed to 
demonstrate eligibility under Part B, including this requirement.
    Changes: None.

[[Page 46614]]

Participation in Assessments (Proposed Sec.  300.160)
    Comment: None.
    Discussion: Participation in assessments is the subject of a notice 
of proposed rulemaking published in the Federal Register on December 
15, 2005 (70 FR 74624) to amend the regulations governing programs 
under title I of the ESEA and Part B of the Act, regarding additional 
flexibility for States to measure the achievement of children with 
disabilities based on modified achievement standards.
    Changes: Therefore, we are removing proposed Sec.  300.160 and 
designating the section as ``Reserved.''
Supplementation of State, Local, and Other Federal Funds (Sec.  
300.162)
    Comment: One commenter disagreed with the removal of current Sec.  
300.155, which requires that States have policies and procedures on 
file with the Secretary to ensure that funds paid to the State under 
Part B of the Act are spent in accordance with the provisions of Part 
B.
    Discussion: Current Sec.  300.155 was removed from these 
regulations consistent with section 612(a)(17) of the Act. The removal 
of this requirement is also consistent with section 612(a) of the Act, 
which requires a State to submit a plan that provides assurances to the 
Secretary that the State has in effect policies and procedures to 
ensure that the State meets the requirements of the Act rather than 
submitting the actual policies and procedures to the Department. To 
alleviate burden, Congress removed the statutory provisions which 
required that States have policies and procedures on file with the 
Secretary to ensure that funds paid to the State under Part B of the 
Act are spent in accordance with the provisions of Part B. OSEP 
continues to have responsibility to ensure that States are properly 
implementing the Act. Given the statutory change that Congress made to 
remove the prior requirement, we believe it would be inappropriate to 
include it in these regulations.
    Changes: None.
Maintenance of State Financial Support (Sec.  300.163)
    Comment: One commenter requested that Sec.  300.163(c)(1), 
regarding waivers for maintenance of State financial support for 
exceptional or uncontrollable circumstances, provide examples of what 
would be considered a precipitous and unforeseen decline in the State's 
financial resources.
    Discussion: We decline to limit the Secretary's discretion in these 
matters in the abstract. The Secretary makes the determinations 
regarding these waivers on a case-by-case basis and given the facts and 
circumstances at the time such a request is made.
    Changes: None.
Public Participation (Sec.  300.165)
    Comment: Several commenters objected to the removal of current 
Sec. Sec.  300.280 through 300.284, regarding public participation, and 
recommended that all provisions, including those related to public 
hearings, comment periods, and review of public comments be restored.
    Discussion: We do not believe it is necessary to retain in the 
regulations the requirements in current Sec. Sec.  300.280 through 
300.284 because the provisions in Sec.  300.165 and GEPA, in 20 U.S.C. 
1232d(b)(7), provide sufficient opportunities for public participation. 
We also believe retaining the requirements in Sec. Sec.  300.280 
through 300.284 would place unnecessary regulatory burden on States. 
Section 300.165(a) incorporates the language in section 612(a)(19) of 
the Act, regarding public participation in the adoption of policies and 
procedures to implement Part B of the Act, and requires States to 
ensure that there are public hearings, adequate notice of hearings, and 
an opportunity for comment available to the general public. 
Furthermore, paragraph (b) of this section requires States to comply 
with the public participation requirements of GEPA, in 20 U.S.C. 
1232d(b)(7), before submitting a State plan under this part. In 
accordance with the GEPA requirement, the State must assure that it 
will provide reasonable opportunities for participation by local 
agencies, representatives of the class of individuals affected by 
programs under this part and other interested institutions, 
organizations, and individuals in the planning for the operation of 
programs under this part. GEPA also requires that the State publish 
each proposed State plan under this part, in a manner that will ensure 
circulation throughout the State, at least 60 days prior to the date on 
which the State plan is submitted to the Secretary or on which the 
State plan becomes effective, whichever occurs earlier, with an 
opportunity for public comments on such plan to be accepted for at 
least 30 days. In addition, the State must comply with any State-
specific public participation requirements in adopting policies and 
procedures related to Part B of the Act.
    Changes: None.
    Comment: One commenter requested that the regulations define the 
meaning of ``adequate notice'' as it is used in Sec.  300.165(a) to 
ensure that there is adequate notice of public hearings prior to 
adopting any policies and procedures needed to comply with Part B of 
the Act.
    Discussion: We do not think it is appropriate or necessary to 
include in the regulations a definition of ``adequate notice'' because 
what constitutes ``adequate notice'' will vary depending on the unique 
circumstances in each State and we believe States should have the 
flexibility of determining and applying a workable and reasonable 
standard that meets their circumstances to ensure public participation 
at public hearings. We believe it would be reasonable for the State to 
assume that it provided adequate notice if, at its public hearings, 
there were sufficient representatives of the general public, including 
individuals with disabilities and parents of children with 
disabilities, in attendance.
    Changes: None.
    Comment: One commenter requested that the regulations require 
States to provide notices of public hearings in multiple languages and 
alternative formats.
    Discussion: It is unnecessary to include regulations requiring 
States to provide notice of public hearings in multiple languages and 
alternative formats. Public agencies are required by other Federal 
statutes to take appropriate actions to ensure that the public has 
access, in alternative formats and languages other than English, to 
public hearings. The other Federal statutory provisions that apply in 
this regard are section 504 of the Rehabilitation Act of 1973 and its 
implementing regulations in 34 CFR part 104 (prohibiting discrimination 
on the basis of disability by recipients of Federal financial 
assistance), title II of the Americans With Disabilities Act and its 
implementing regulations in 28 CFR part 35 (prohibiting discrimination 
on the basis of disability by public entities, regardless of receipt of 
Federal funds), and title VI of the Civil Rights Act of 1964 and its 
implementing regulations in 34 CFR part 100 (prohibiting discrimination 
on the basis of race, color, or national origin by recipients of 
Federal financial assistance).
    Changes: None.
    Comment: One commenter requested that the regulations require 
States to work with the parent centers to identify appropriate 
locations and times for public hearings.
    Discussion: There is nothing in the Act or these regulations that 
would prohibit a State from working with the parent centers to identify 
appropriate

[[Page 46615]]

locations and times for public hearings, but we see no need to require 
States to do so. We believe that this matter should be left to State 
discretion.
    Changes: None.
Rule of Construction (Sec.  300.166)
    Comment: One commenter requested clarification regarding the use of 
Federal funds to offset decreases in State formula allocations to LEAs 
that use attendance, enrollment, or inflation as elements of the State 
funding formula for special education.
    Discussion: Section 300.166 was added to incorporate language in 
section 612(a)(20) of the Act. It specifies that States with laws that 
require a specific level of funding to their LEAs cannot use Federal 
Part B funds for this purpose.
    Changes: None.

State Advisory Panel

State Advisory Panel (Sec.  300.167)
    Comment: One commenter stated that Sec. Sec.  300.167 through 
300.169 are unnecessary and do not add any requirements beyond those in 
section 612(a)(21) of the Act. The commenter recommended removing these 
requirements and stated that they can be adequately implemented through 
guidance provided by the Department and not through regulation.
    Discussion: The requirements of the State advisory panel in 
Sec. Sec.  300.167 through 300.169 reflect the specific language in 
section 612(a)(21) of the Act. We believe it is necessary to include 
these statutory requirements in the regulations to provide parents, 
public agencies, and others with information on the requirements 
applicable to State advisory panels.
    Changes: None.
    Comment: Several commenters recommended retaining the procedures to 
govern State advisory panels in current Sec.  300.653 and strengthening 
the requirements of notice and opportunity for public comment at State 
advisory panel meetings by mandating publication of meeting dates, 
agendas, and minutes on Web sites. A few commenters stated that 
eliminating the notice requirements and the opportunity to participate 
in meetings in current Sec.  300.653(d) and (e) will result in fewer 
low income, hearing-impaired, and foreign-language speaking parents 
attending State advisory panel meetings. One commenter expressed 
concern that the removal of current Sec.  300.653 will result in less 
panel visibility, less public participation, and that State advisory 
panels will become ``rubber-stamps'' for positions taken by State 
officials. One commenter stated that the removal of the requirements in 
current Sec.  300.653 weakens the protection of children with 
disabilities, and, therefore, violates section 607(b) of the Act.
    Discussion: The requirements in current Sec.  300.653 were removed 
to provide greater State flexibility in the operation of advisory 
panels. We do not believe the removal of current Sec.  300.653 will 
mean that the States will not ensure that State advisory panel meetings 
are announced in advance and open to the public because States 
generally have adequate sunshine laws that ensure public access to 
governmental agency meetings. We do not believe it is necessary to 
require that information regarding State advisory panel meetings be 
posted on State Web sites because sunshine laws generally contain 
provisions regarding meeting notices, agendas, and the availability of 
minutes of public meetings. However, it is important that individuals 
consult the laws governing their State and locality on the issue of 
open meetings and public access.
    Section 607(b)(2) of the Act provides that the Secretary may not 
implement, or publish in final form, any regulation pursuant to the Act 
that procedurally or substantively lessens the protections provided to 
children with disabilities as embodied in regulations in effect on July 
20, 1983. We do not believe removing from these regulations the 
requirements in current Sec.  300.653 procedurally or substantively 
lessens the protections provided to children with disabilities pursuant 
to section 607(b)(2) of the Act because we do not view public notice of 
advisory committee meetings to be a protection provided to children 
with disabilities.
    Changes: None.
Membership (Sec.  300.168)
    Comment: We received numerous, specific requests to revise Sec.  
300.168 to add to the list of individuals who can serve as members of 
the State advisory panels. Some commenters recommended requiring State 
advisory panels to include representatives from the Parent Training and 
Information Centers and Community Parent Resource Centers funded by the 
Department under sections 671 and 672 of the Act because their 
representation would ensure a diverse group of people experienced with 
children with different disabilities on the panels. One commenter 
expressed concern that, without representation from these groups, panel 
members would make recommendations based solely on their individual 
circumstances and backgrounds. A few commenters requested including 
school psychologists and other student support staff on State advisory 
panels. One commenter suggested including a representative of a 
residential treatment facility as a member on State advisory panels 
because children in these facilities are a growing population and have 
specialized needs. A few commenters requested adding representatives 
from centers for independent living because these individuals are 
experienced in advocating for people with disabilities. One commenter 
suggested including State coordinators for education of homeless 
children and youth. A few commenters suggested including disabled high 
school and postsecondary students on the list because the intended 
beneficiaries of the Act are often denied a voice. A few commenters 
proposed requiring each State advisory panel to be racially, 
culturally, linguistically, and socio-economically representative of 
the State. One commenter expressed concern that the new regulations 
could lead States to abruptly replace current panel members causing 
discontinuity and decreasing expertise, and recommended phasing in the 
new requirements and allowing panel members to complete their terms of 
office.
    Discussion: The membership of State advisory panels is described in 
section 612(a)(21)(B) and (C) of the Act and the Department does not 
agree that there is a need to require additional representatives or to 
change the panel composition. However, nothing in the Act or these 
regulations would prevent the appointment of additional 
representatives, if a State elected to add these individuals. With 
respect to the request to include State coordinators for education of 
homeless children on the panels, State and local officials who carry 
out activities under the McKinney-Vento Homeless Assistance Act are 
already included in the list of individuals identified to serve on the 
State advisory panels in Sec.  300.168(a)(5).
    Section 612(a)(21)(B) of the Act, as reflected in Sec.  300.168, 
requires the State advisory panel to be representative of the State 
population and be composed of individuals involved in, or concerned 
with, the education of children with disabilities. Also, the Act and 
these regulations require a majority of the panel members to be 
individuals with disabilities or parents of children with disabilities 
(ages birth through 26). We also do not believe there is a need to 
phase in the new requirements, as those members that do not need to 
change should provide sufficient continuity of panel functions.

[[Page 46616]]

    Changes: None.
Duties (Sec.  300.169)
    Comment: A few commenters recommended requiring States to submit 
any rules or regulations related to children with disabilities to the 
State advisory panel for consideration before the rules are finalized. 
One commenter requested requiring panel members to take positions on 
State proposed rules and regulations regarding the education of 
children with disabilities and offer their views to the appropriate 
State agencies.
    Discussion: Section 612(a)(21)(D) of the Act clearly specifies the 
duties of the State advisory panel and these duties are accurately 
reflected in Sec.  300.169. Paragraph (b) of this section clarifies 
that the advisory panel must comment publicly on any State proposed 
rules or regulations regarding the education of children with 
disabilities. We believe Sec.  300.169(b) is sufficient to ensure that 
the advisory panel has the opportunity to consider any State rules or 
regulations before they are final and, accordingly, further regulatory 
language is unnecessary. Further, we believe it is inappropriate to 
require that panel members ``take positions'' on proposed rules and 
regulations because to do so would be overly controlling of the 
advisory panel and may impact the panel's ability to effectively meet 
its statutory responsibility of providing public comment on State 
proposed rules and regulations.
    Changes: None.
    Comment: Many commenters suggested retaining current Sec.  
300.652(b), which requires State advisory panels to provide advice for 
educating students with disabilities in adult correctional facilities. 
A few of these commenters noted that students in adult correctional 
facilities are members of one of the most vulnerable populations.
    Discussion: Given the breadth of the State advisory panel's 
statutory responsibilities we removed from the regulations all 
nonstatutory mandates on the State advisory panel, including the 
provision in current Sec.  300.652(b), regarding advising on the 
education of eligible students with disabilities who have been 
convicted as adults and have been incarcerated in adult prisons. We 
believe placing such nonstatutory mandates on the State advisory panel 
may hinder the advisory panel's ability to effectively provide policy 
guidance with respect to special education and related services for 
children with disabilities in the State. There is nothing, however, 
that would prevent a State from assigning other responsibilities to its 
State advisory panel, as long as those other duties do not prevent the 
advisory panel from carrying out its responsibilities under the Act.
    Changes: None.
Access to Instructional Materials (Sec.  300.172)
    Comment: One commenter recommended including the National 
Instructional Materials Accessibility Standard (NIMAS) in these 
regulations.
    Discussion: We agree with the commenter. The final NIMAS was 
published in the Federal Register on July 19, 2006 (71 FR 41084) and 
will be included as Appendix C to Part 300--National Instructional 
Materials Accessibility Standard of these regulations. We will add 
language in Sec.  300.172(a) to refer to this location and to reference 
the publication date of the NIMAS in the Federal Register.
    Changes: The final NIMAS has been added as appendix C to part 300. 
We have added language in Sec.  300.172(a) to refer to the location of 
the NIMAS in these regulations and the publication date of the NIMAS in 
the Federal Register.
    Comment: Several commenters expressed concern that the language 
requiring States to adopt the NIMAS ``in a timely manner'' is ambiguous 
and could lead to delays in providing instructional materials to 
children with disabilities, inconsistencies across States, and 
increased litigation. Several commenters requested that the regulations 
specify a timeline for States to adopt the NIMAS. Some commenters 
recommended requiring all States to adopt the NIMAS by December 3, 
2006. However, one commenter stated that States should not be given a 
deadline to adopt the NIMAS.
    A number of commenters requested that the regulations define the 
meaning of ``adopt'' in Sec.  300.172(a) and specify what States must 
do to adopt the NIMAS. Several commenters recommended defining 
``adopt'' to mean that the State, through regulatory or legislative 
procedures, designates NIMAS as the only required source format for 
publishers to convert print instructional materials into specialized 
formats for children with disabilities. One commenter urged the 
Department to define ``adopt'' to mean that a State must accept a NIMAS 
file as satisfying the publisher's legal obligation to provide 
accessible instructional materials. Other commenters recommended that 
the regulations clearly state that adoption of the NIMAS means that 
SEAs and LEAs must accept and use electronic copies of instructional 
materials in the NIMAS format that are provided by the publishers.
    Discussion: Section 300.172(a), consistent with section 
612(a)(23)(A) of the Act, requires States to adopt the NIMAS in a 
timely manner after the publication of the NIMAS in the Federal 
Register for the purpose of providing instructional materials to blind 
or other persons with print disabilities. As noted in the discussion to 
the previous comment, the NIMAS is included as Appendix C to Part 300--
National Instructional Materials Accessibility Standard and was 
published in the Federal Register on July 19, 2006 (71 FR 41084). The 
Department believes that States should make every effort to adopt the 
NIMAS in a timely manner following the publication of the NIMAS in the 
Federal Register, recognizing that the timelines and requirements for 
adopting new rules, policies, or procedures vary from State to State. 
States choosing to coordinate with the NIMAC must, consistent with 
section 612(a)(23)(C) of the Act and Sec.  300.172(c) of these 
regulations, not later than December 3, 2006, as part of any print 
instructional materials adoption process, procurement contract, or 
other practice or instrument used for purchase of print instructional 
materials, enter into a written contract with the publisher of the 
print instructional materials to: (1) Require the publisher to prepare 
and, on or before delivery of the print instructional materials, 
provide the NIMAC with electronic files containing the content of the 
print instructional materials using the NIMAS; or (2) purchase 
instructional materials from the publisher that are produced in, or may 
be rendered in, specialized formats. Clearly, we would expect that 
these States would have adopted the NIMAS by December 3, 2006. We 
decline to require a specific adoption date for all States, however, 
given the lack of specificity in the Act. We also decline to include a 
definition of ``adopt'' in these regulations because requirements for 
adopting new rules and policies may vary from State to State. The 
Department's view is that it is inherent in the adoption requirement 
that, at a minimum, upon ``adoption'' of the NIMAS, a State must accept 
and use electronic copies of instructional materials in the NIMAS 
format for the purpose of providing instructional materials to blind or 
other persons with print disabilities. Under Sec.  300.172(a), adopting 
the NIMAS is a State responsibility and does not impose any legal 
obligations on publishers of instructional materials.

[[Page 46617]]

    Changes: We have made technical changes in Sec.  300.172(c). For 
clarity, we have replaced the phrase ``not later than'' with ``as of.'' 
We have removed the phrase ``two years after the date of enactment of 
the Individuals with Disabilities Education Improvement Act of 2004'' 
because it is unnecessary.
    Comment: One commenter recommended requiring States to comply with 
the requirements for public hearings and public comment in section 
612(a)(19) of the Act before adopting policies and procedures to 
implement the requirements in Sec.  300.172 related to access to 
instructional materials. The commenter stated that all interested 
members of the public, including parents of children with disabilities, 
are entitled to participate in designing the plan for implementing 
these policies and procedures.
    Discussion: Section 300.165(a), consistent with section 612(a)(19) 
of the Act, requires States to hold public hearings and receive public 
comment before implementing any policies and procedures needed to 
comply with Part B of the Act. These public hearing and public comment 
requirements apply to the policies and procedures needed to implement 
the requirements in Sec.  300.172.
    Changes: None.
    Comment: One commenter requested clarification on whether the NIMAS 
is limited to print materials on the medium of paper or also includes 
the iconic representation of letters and words.
    Discussion: The NIMAS is the standard established by the Secretary 
to be used in the preparation of electronic files of print 
instructional materials so they can be more easily converted to 
accessible formats, such as Braille. In addition to print materials, 
the NIMAS provides standards for textbooks and related core materials 
where icons replace text. Materials with icons will be available if 
they are in printed textbooks and related printed core materials that 
are written and published primarily for use in elementary school and 
secondary school instruction and are required by an SEA or LEA for use 
by children in the classroom, consistent with section 674(e)(3)(C) of 
the Act.
    Changes: None.
    Comment: A few commenters recommended clarifying that providing 
materials in accessible formats includes changes in the depth, breadth, 
and complexity of materials. Some commenters stated that Sec.  300.172 
should include language regarding universal design of instructional 
materials.
    Discussion: Section 300.172 is consistent with section 612(a)(23) 
of the Act and focuses specifically on providing access to print 
instructional materials using the NIMAS. The NIMAS is designed to 
improve the quality and consistency of print instructional materials 
converted into accessible formats for persons who are blind and persons 
with print disabilities, not to alter the content (e.g., the depth, 
breadth, or complexity) of the print instructional materials. While the 
NIMAS is designed to make print instructional materials more readily 
and easily accessible to persons who are blind and persons with print 
disabilities, it is not intended to provide materials that are 
universally designed. Therefore, while the Department acknowledges the 
importance of universal design, it would be inappropriate to reference 
universal design in this section.
    The NIMAS Development Center has been charged with examining the 
need for future changes in the NIMAS. This Center, funded by the 
Department, is looking at a variety of issues, including the extent to 
which universal design features should be incorporated into future 
iterations of the NIMAS. Information about the NIMAS Development Center 
can be found at: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://nimas.cast.org/.

    Changes: None.
    Comment: One commenter recommended that books on tape be made 
available in the same manner as print materials.
    Discussion: The conversion of text to speech for digital talking 
books is one of the accessible formats that can be generated from a 
NIMAS file. The NIMAS makes it possible for such talking books to be 
generated more efficiently so that children who need them will receive 
them more quickly than in the past. Such audio formats will be made 
available for printed textbooks and related printed core materials that 
are written and published primarily for use in elementary school and 
secondary school instruction and are required by an SEA or LEA for use 
by children in the classroom, consistent with section 674(e)(3)(C) of 
the Act. The NIMAS does not pertain to books on tape that are produced 
in sound studios.
    Changes: None.
    Comment: Many commenters requested that the regulations specify 
that providing instructional materials to children with disabilities in 
a timely manner means providing these materials at the same time they 
are provided to children without disabilities. One commenter 
recommended defining ``in a timely manner'' as the start of the school 
year or, for children who transfer schools after the start of the 
school year, within 30 days of the start of the school year, regardless 
of whether a State chooses to coordinate with the NIMAC.
    Discussion: The Department agrees that States should make every 
effort to provide children with disabilities accessible instructional 
materials at the same time as other children receive their 
instructional materials. The Department's position is consistent with 
S. Rpt. No. 108-185, p. 19, which states, ``The committee feels 
strongly that instructional materials should be provided to blind and 
print disabled students at the same time their fellow students without 
print disabilities are receiving the same materials.'' This position 
also is consistent with H. Rpt. No. 108-77, pp. 97-98.
    However, the Department recognizes that this may not be possible in 
all circumstances, for example, when a child with a disability 
transfers to a new school in the middle of a school year. Additionally, 
there could be circumstances beyond the control of the public agency 
that could prevent children with disabilities who need instructional 
materials in accessible formats from receiving them at the same time as 
instructional materials are provided to other children, such as if the 
public agency's contractor is unable to produce the instructional 
materials in an accessible format because of some unforeseen 
circumstance. In situations such as these, it is understandable that 
the accessible format materials may not be immediately available. 
Therefore, we will add a provision to the regulations to specify that 
in order to meet their obligation to provide accessible format 
instructional materials in a timely way, public agencies must take all 
reasonable steps to make those instructional materials available at the 
same time as instructional materials are provided to other children. 
Reasonable steps, for example, would include requiring publishers or 
other contractors to provide instructional materials in accessible 
formats by the beginning of the school year for children whom the 
public agency has reason to believe will be attending its schools. 
Reasonable steps also might include having a means of acquiring 
instructional materials in accessible formats as quickly as possible 
for children who might transfer into the public agency in the middle of 
the year. Reasonable steps would not include withholding instructional 
materials from other children until instructional materials in 
accessible formats are available. To clarify that the obligation to 
make instructional materials available in a timely manner applies even 
to

[[Page 46618]]

States that coordinate with the NIMAC, we are adding a new provision to 
that effect. We also are clarifying that the definitions in Sec.  
300.172(e) apply to each State and LEA, whether or not the State or LEA 
chooses to coordinate with the NIMAC.
    Changes: We have amended paragraph (b) in Sec.  300.172 by adding a 
new paragraph (b)(4) requiring the SEA to ensure that all public 
agencies take all reasonable steps to provide instructional materials 
in accessible formats to children with disabilities who need those 
instructional materials at the same time as other children receive 
instructional materials. We have reorganized paragraph (c) and added a 
new paragraph (c)(2) requiring States that coordinate with the NIMAC to 
provide accessible materials in a timely manner. We have also amended 
paragraph (e) by adding a new paragraph (e)(2) to clarify that the 
definitions in Sec.  300.172(e)(1) apply to each SEA and LEA whether or 
not the SEA or LEA chooses to coordinate with the NIMAC. We have made 
technical changes to Sec.  300.172(e) and renumbered Sec.  300.172(e) 
to be consistent with this change.
    Comment: Many commenters expressed concern that the regulations 
fail to ensure timely access to instructional materials for children 
with other types of disabilities besides print disabilities. One 
commenter recommended clarifying that children do not have to be blind 
or have print disabilities to fit into the description of children who 
need accessible materials. However, another commenter stated that Sec.  
300.172(b)(3), which require SEAs to be responsible for providing 
accessible materials for children for whom assistance is not available 
from the NIMAC, should be removed because the Act does not include 
these requirements.
    A few commenters requested adding a regulation to clarify that the 
requirements in Sec.  300.172 do not apply if an SEA is not responsible 
for purchasing textbooks. The commenters stated that if an SEA cannot 
purchase textbooks, it has no legal relationship with textbook 
publishers and cannot comply with the requirements in Sec.  300.172.
    Discussion: Timely access to appropriate and accessible 
instructional materials is an inherent component of a public agency's 
obligation under the Act to ensure that FAPE is available for children 
with disabilities and that children with disabilities participate in 
the general curriculum as specified in their IEPs. Section 
300.172(b)(3) provides that nothing relieves an SEA of its 
responsibility to ensure that children with disabilities who need 
instructional materials in accessible formats, but who do not fall 
within the category of children who are eligible to receive materials 
produced from NIMAS files obtained through the NIMAC, receive those 
instructional materials in a timely manner. Therefore, we do not 
believe that any further clarification is necessary. Even SEAs that are 
not directly responsible for purchasing textbooks have this 
responsibility. In short, we believe these regulations are necessary to 
fully implement the Act.
    Changes: None.
    Comment: One commenter stated that all children with disabilities 
should receive assistance from the NIMAC.
    Discussion: We disagree with the commenter. Section 674(e) of the 
Act limits the authority of the NIMAC to provide assistance to SEAs and 
LEAs in acquiring instructional materials for children who are blind, 
have visual disabilities, or are unable to read or use standard print 
materials because of physical limitations, and children who have 
reading disabilities that result from organic dysfunction, as provided 
for in 36 CFR 701.6. Clearly, SEAs and LEAs that choose to use the 
services of the NIMAC will be able to assist blind persons or other 
persons with print disabilities who need accessible instructional 
materials through this mechanism. However, SEAs and LEAs still have an 
obligation to provide accessible instructional materials in a timely 
manner to other children with disabilities who also may need accessible 
materials even though their SEA or LEA may not receive assistance from 
the NIMAC, as provided in Sec. Sec.  300.172(b)(3) and 300.210(b).
    Changes: None.
Rights and Responsibilities of SEAs (Sec.  300.172(b))
    Comment: Many commenters expressed concern about allowing States to 
choose not to coordinate with the NIMAC. A few commenters stated that 
coordination with the NIMAC should be mandatory for all States. One 
commenter recommended that the Department strongly encourage States to 
coordinate with the NIMAC, because it may be difficult for States to 
provide the assurances required in Sec.  300.172(b)(2) if they choose 
not to coordinate with the NIMAC. A few commenters recommended that 
States that cannot demonstrate a past history of providing 
instructional materials to children with disabilities in a timely 
manner should be required to coordinate with the NIMAC.
    Discussion: It would be inconsistent with section 612(a)(23)(B) of 
the Act to make coordination with the NIMAC mandatory for all States or 
to require certain States to coordinate with the NIMAC (e.g., States 
that do not have a history of providing instructional materials to 
children with disabilities in a timely manner), as suggested by the 
commenters. Section 612(a)(23)(B) of the Act provides that nothing in 
the Act shall be construed to require any SEA to coordinate with the 
NIMAC.
    Changes: None.
    Comment: Several commenters requested that the regulations clearly 
define the process for a State to choose not to coordinate with the 
NIMAC. A few commenters requested additional details on what assurances 
States must provide if they choose not to coordinate with the NIMAC. 
Other commenters requested that State assurances provide the public 
with information to evaluate the capacity of the State to provide 
materials to children who are blind or have print disabilities. Some 
commenters stated that the assurances provided by States that choose 
not to coordinate with the NIMAC should be done annually and in 
writing.
    Several commenters requested that the regulations provide a means 
for the public to obtain information about which States choose not to 
coordinate with the NIMAC. A few commenters requested that the 
Department publish the assurances made by SEAs that choose not to 
coordinate with the NIMAC. Some commenters stated that SEAs that choose 
to coordinate with the NIMAC should be required to provide information 
to the Department on the LEAs in the State that elect not to coordinate 
with the NIMAC.
    Discussion: Section 300.172(b)(2), consistent with section 
612(a)(23)(B) of the Act, requires SEAs that choose not to coordinate 
with the NIMAC to provide an assurance to the Secretary that the agency 
will provide instructional materials to blind persons and other persons 
with print disabilities in a timely manner. As part of a State's 
application for Part B funds, Sec.  300.100 and section 612(a) of the 
Act require States to provide assurances to the Secretary that the 
State has in effect policies and procedures to ensure that the State 
meets the conditions of eligibility. (The Part B Annual State 
Application for 2006, OMB No. 1820-0030, can be found at: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.ed.gov/fund/grant/apply/osep/2006apps.html.
)

    Therefore, the Department will compile a list of the States that 
choose to coordinate with the NIMAC and those that do not, and will 
make this list

[[Page 46619]]

available on OSEP's monitoring Web site at: 
http://www.ed.gov/policy/speced/guid/idea/monitor/index.html.
 

    Section 612(a)(23)(B) of the Act does not mandate that States 
coordinate with the NIMAC or place conditions on which States can 
choose to coordinate with the NIMAC. Therefore, it is unnecessary to 
require a State's assurance to include information on its capacity to 
provide instructional materials to children who are blind or have print 
disabilities, as commenters recommended.
    We do not believe it is appropriate to regulate to require States 
to provide information to the Department on the LEAs in the State that 
elect not to coordinate with the NIMAC. Under Sec.  300.149 and section 
612(a)(11) of the Act, States are responsible for ensuring that LEAs in 
the State meet the requirements of the Act, including providing 
instructional materials to blind persons or other persons with print 
disabilities in a timely manner. As stated in Sec.  300.210 and section 
613(a)(6)(B) of the Act, if an LEA chooses not to coordinate with the 
NIMAC, the LEA must provide an assurance to the SEA that the LEA will 
provide instructional materials to blind persons or other persons with 
print disabilities in a timely manner.
    Changes: None.
    Comment: Some commenters proposed that the regulations require 
States that choose not to coordinate with the NIMAC to annually report 
to the public on when children with disabilities receive their 
materials, how print materials are provided in a timely manner, and the 
steps the State has taken to ensure that materials will be provided at 
the same time as materials are provided to children without 
disabilities. One commenter stated that, if a State chooses not to 
coordinate with the NIMAC, the State should be required to submit data 
to the Department on the number of children with print disabilities 
served by the State and when those children received the accessible 
version of print instructional materials compared with when other 
children received their materials. Other commenters recommended that 
States choosing not to coordinate with the NIMAC should be required to 
develop and publish their policies and procedures that govern how they 
maintain and distribute NIMAS files.
    Discussion: It would be unfair to impose additional data collection 
and reporting requirements, such as those requested by the commenters, 
only on those States that choose not to coordinate with the NIMAC. All 
States, regardless of whether they choose to coordinate with the NIMAC, 
must ensure that children with disabilities who need instructional 
materials in accessible formats receive instructional materials in a 
timely manner, consistent with Sec.  300.172(b)(3).
    Furthermore, even States that choose to coordinate with the NIMAC 
will need to take steps to ensure that the instructional materials for 
children eligible to receive print instructional materials derived from 
NIMAS files are received in a timely manner. As provided in section 
674(e)(3)(A) of the Act, the NIMAC is a distribution center for NIMAS 
files obtained from publishers, SEAs, and LEAs. Section 612(a)(23) of 
the Act requires SEAs that choose to coordinate with the NIMAC to enter 
into written contracts with publishers to require the publishers to 
provide electronic files using the NIMAS to the NIMAC on, or before, 
delivery of the print instructional materials to the SEA.
    The NIMAC is not responsible for converting NIMAS files to the 
accessible formats needed by the children eligible to receive print 
instructional materials derived from NIMAS files. All States will need 
to arrange to have the NIMAS files converted to student-ready versions 
of instructional materials in the accessible formats needed by these 
children.
    Changes: None.
    Comment: One commenter requested that the Department provide 
information and training to States and LEAs on the NIMAC so that they 
can make an informed choice regarding whether to coordinate with the 
NIMAC. Another commenter recommended that the Department provide 
written guidance for States and LEAs regarding the NIMAS and the NIMAC.
    Discussion: The Department recognizes the need to provide 
information to SEAs and LEAs regarding the NIMAS and the NIMAC and will 
provide technical assistance through the NIMAS Technical Assistance 
Center after the Department has approved the NIMAC procedures.
    Changes: None.
Preparation and Delivery of Files (Sec.  300.172(c))
    Comment: One commenter recommended that the regulations require 
instructional materials provided to children with disabilities to be 
complete and accurate. Another commenter requested requiring publishers 
to provide copies of the original books to the NIMAC along with the 
electronic files, because a copy of the original book is necessary for 
alignment of page numbers and descriptions of pictures.
    Discussion: We understand and appreciate the importance of having a 
copy of the original material to ensure accuracy of the files. However, 
the NIMAC is not responsible for ensuring the accuracy of materials, 
aligning page numbers, or describing pictures. Rather, the NIMAC is a 
distribution center for NIMAS files obtained from publishers, SEAs, and 
LEAs. Consistent with section 674(e)(3)(A) of the Act, the duties of 
the NIMAC are to receive and maintain a catalog of print instructional 
materials prepared in the NIMAS format and made available to the NIMAC 
by the textbook publishing industry, SEAs, and LEAs. Accessible, 
student-ready versions of instructional materials are created from 
NIMAS source files by national third-party conversion organizations; 
regional or State conversion sources; desktop applications created by 
software developers; or curriculum publishers that produce accessible 
alternate format versions for direct sale to SEAs and LEAs. The Act 
does not authorize the Department to impose obligations on such 
entities to provide accurate materials. States and LEAs that contract 
with such entities, however, may wish to require the accuracy of such 
materials, including the alignment of page numbers and descriptions of 
pictures, as part of their agreements.
    Changes: None.
    Comment: One commenter suggested that the regulations permit an SEA 
to receive assistance from the NIMAC, even if the SEA is not formally 
coordinating with the NIMAC.
    Discussion: The Act does not require the NIMAC to provide 
assistance to SEAs if the SEA has chosen not to coordinate with the 
NIMAC. However, there is nothing in the Act that would prevent the 
NIMAC from doing so. As stated in section 674(e)(2)(B) of the Act, the 
NIMAC must provide access to print instructional materials, including 
textbooks, in accessible media, free of charge, to blind or other 
persons with print disabilities in elementary and secondary schools, in 
accordance with such terms and procedures as the NIMAC may prescribe. 
Providing this access could include assisting an SEA, even if the SEA 
has chosen not to coordinate with the NIMAC.
    Changes: None.
    Comment: One commenter recommended that the regulations include an 
accountability mechanism so that parents and schools know whether the 
State or LEA is responsible for the timely delivery of instructional 
materials.

[[Page 46620]]

    Discussion: Whether instructional materials are purchased by the 
State or LEA is a State matter. The Act does not authorize the 
Department to impose obligations on States or LEAs with respect to the 
process for timely delivery of instructional materials.
    Changes: None.
    Comment: One commenter emphasized the need to track the progress 
and monitor the advancement of accessible materials on a national and 
regional level. Another commenter stated that there is a need to 
establish SEA and LEA baseline data regarding the timeliness, quality, 
and quantity of alternate formats in schools. One commenter stated that 
States should be required to publicize information regarding whether 
the State is meeting its responsibilities to provide accessible 
materials to persons who are blind or other persons with print 
disabilities in a timely manner.
    Discussion: We believe that it would be overly burdensome to 
require States to collect and report data on the timeliness, quality, 
and quantity of alternate formats provided to children with 
disabilities in order to track the availability of accessible materials 
for children with disabilities on a regional or national level. Under 
the State complaint procedures, States are responsible for resolving 
complaints alleging violations of requirements under the Act, including 
this one.
    Changes: None.
    Comment: One commenter requested information on the scope of the 
NIMAC's responsibilities.
    Discussion: The duties of the NIMAC are specified in section 
674(e)(2) of the Act and include: (a) receiving and maintaining a 
catalog of print instructional materials prepared in the NIMAS format; 
(b) providing access to print instructional materials in accessible 
media, free of charge to blind or other persons with print disabilities 
in elementary schools and secondary schools; and (c) developing, 
adopting, and publishing procedures to protect against copyright 
infringement, with respect to print instructional materials provided 
under sections 612(a)(23) and 613(a)(6) of the Act.
    Section 674(c) of the Act provides that NIMAC's duties apply to 
print instructional materials published after July 19, 2006, the date 
on which the final rule establishing the NIMAS is published in the 
Federal Register (71 FR 41084). The Department interprets ``publish'' 
to have the plain meaning of the word, which is to issue for sale or 
distribution to the public. The NIMAC's duties, therefore, apply to 
print instructional materials made available to the public for sale 
after the NIMAS is published in the Federal Register. However, this 
does not relieve SEAs and LEAs of their responsibility to provide 
accessible instructional materials in a timely manner, regardless of 
when the instructional materials were ``published.''
    Changes: None.
    Comment: A few commenters expressed concern that the regulations do 
not specify the structure and operation of the NIMAC. One commenter 
requested that the Department provide more information about the 
operation of the NIMAC. Another commenter recommended that the NIMAC's 
management board include representatives of authorized entities. One 
commenter requested information on the legal protections that the 
Department will provide to the NIMAC. Another commenter requested 
specific information on the process and timing of the funding of the 
NIMAC. One commenter recommended a timeline with a series of activities 
(e.g., establishment of a cooperative agreement, cost projections) to 
ensure that the NIMAC is operational. Another commenter recommended 
that the Department develop a process to ensure that the files included 
in the NIMAC are NIMAS compliant, complete, and of the highest quality. 
One commenter expressed concern about how NIMAS files will be bundled 
and delivered to the NIMAC.
    Discussion: We do not believe that regulations on the structure, 
operation, or budget of the NIMAC are necessary. Section 674(e) of the 
Act establishes the NIMAC through the American Printing House for the 
Blind (APH) and allows the NIMAC to prescribe terms and procedures to 
perform its duties under the Act. The Department's Office of Special 
Education Programs (OSEP) will oversee the administration of the NIMAC 
through a cooperative agreement with the APH and will work with the 
NIMAC to establish its structure, operating procedures, and budget. The 
NIMAC procedures will be available on the NIMAC Web site at: 
http://www.nimac.us
.

    Changes: None.
    Comment: One commenter stated that the duties of the NIMAC to 
receive and maintain electronic files of instructional materials 
provided by publishers should not be misconstrued as imposing a duty on 
the NIMAC itself to use the NIMAS files to reproduce the instructional 
materials in accessible formats for children with print disabilities.
    Discussion: The Act clarifies that the NIMAC is not responsible for 
producing instructional materials in accessible formats. As stated in 
section 674(e)(2) of the Act, the NIMAC receives and maintains a 
catalog of print instructional materials prepared in the NIMAS, and 
made available to the NIMAC by the textbook publishing industry, SEAs, 
and LEAs.
    Changes: None.
    Comment: One commenter expressed concern about clear guidance 
regarding electronic rights. Another commenter recommended that the 
regulations require the NIMAC to develop a user agreement that any 
entity seeking access to a NIMAS file must sign. The commenters stated 
that the agreement should detail the entities that are eligible under 
Federal copyright law and the Act to access the NIMAS files, the 
alternate formats that may be produced, and any other restrictions on 
the dissemination and use of NIMAS files.
    One commenter stated that the regulations should require that the 
authorized entities have full, complete, and immediate access to 
deposited files and clarify that the authorized entities are 
responsible for reproducing the instructional materials in an 
accessible format and therefore, the files housed by the NIMAC should 
be free of charge. Another commenter stated that the Department should 
ensure that NIMAS books are available to all authorized entities and 
the appropriate State organizations within five days after the books 
are deposited in the NIMAC.
    Discussion: We do not believe it is appropriate or necessary to 
regulate on the authorized entities eligible to have access to the 
NIMAS files. Under section 674(e)(2)(C) of the Act, the NIMAC is 
required to develop, adopt, and publish procedures to protect against 
copyright infringement, with respect to the print instructional 
materials produced using the NIMAS and provided by SEAs and LEAs to 
blind persons or other persons with print disabilities. Such procedures 
will address, for example, information regarding the authorized 
entities that are eligible to have access to NIMAS files, 
responsibilities of such authorized entities, and how and when access 
will be provided. The NIMAC procedures will be available on the NIMAC 
Web site at: http://www.nimac.us.

    Changes: None.
    Comment: One commenter suggested several changes in the process to 
make Braille copies of instructional materials including constructing 
directions for choosing answers in universal terms, such as ``write the 
correct response,'' rather than ``circle'' or ``underline;'' 
describing, in writing, visuals that cannot be easily interpreted; 
using hard

[[Page 46621]]

paper for Braille and raised drawings, rather than thermoform; using 
hard-bound bindings for text, rather than plastic spiral binders; using 
audio formats as supplemental materials; and using simple graphics with 
easy access to map keys on the same page.
    Discussion: Procedures for Braille transcribers and for conversion 
entities are the responsibility of SEAs and LEAs and, as such, are 
beyond the scope of these regulations.
    Changes: None.
    Comment: One commenter recommended that software companies 
routinely create desktop publishing programs that contain text to 
speech capabilities.
    Discussion: It is beyond the Department's authority to impose 
requirements on software companies.
    Changes: None.
    Comment: One commenter recommended that a NIMAS style guide be 
developed that is textbook specific.
    Discussion: The NIMAS Technical Assistance Center will develop a 
best practices Web page with exemplars and a style guide. This 
technical assistance resource will be available at: http://nimas.cast.org.

    Changes: None.
Assistive Technology (Sec.  300.172(d))
    Comment: A few commenters requested that the regulations clarify 
that the ``assistive technology programs,'' referred to in Sec.  
300.172(d), are the programs established in each State pursuant to the 
Assistive Technology Act of 1998, as amended.
    Discussion: Section 300.172(d) and section 612(a)(23)(D) of the Act 
provide that in carrying out the requirements in Sec.  300.172, the 
SEA, to the maximum extent possible, must work collaboratively with the 
State agency responsible for assistive technology programs. Section 
612(a)(23)(D) of the Act does not refer to any particular assistive 
technology program. Therefore, we interpret broadly the phrase ``State 
agency responsible for assistive technology programs'' to mean the 
agency determined by the State to be responsible for assistive 
technology programs, which may include programs established under 
section 4 of the Assistive Technology Act of 1998, as amended.
    Changes: None.
Definitions (Sec.  300.172(e))
    Comment: Several commenters requested that Sec.  300.172(e) include 
the full definition of terms, rather than the citations to the 
definitions in the laws. A number of commenters requested that the 
regulations include a definition of ``persons with print 
disabilities.''
    Discussion: We have published the NIMAS as Appendix C to Part 300--
National Instructional Materials Accessibility Standard of these 
regulations, which will include the definition of NIMAS from section 
674(e)(3)(B) of the Act.
    The definition of the NIMAC in new Sec.  300.172(e)(1)(ii) 
(proposed Sec.  300.172(e)(2)) and section 612(a)(23)(E)(i) of the Act 
refers to the center established pursuant to section 674(e) of the Act. 
Paragraph (e)(1) in section 674 of the Act establishes the center at 
the APH and paragraph (e)(2) outlines the duties of the NIMAC. We do 
not believe it is necessary to include this information in the 
regulations in order to implement the requirements of the Act, but will 
include it here for the convenience of the readers.
    National Instructional Materials Access Center or NIMAC means the 
center established pursuant to section 674(e) of the Act. Section 
674(e) of the Act provides, in part, that--
    (1) In general. The Secretary shall establish and support, through 
the American Printing House for the Blind, a center to be known as the 
``National Instructional Materials Access Center'' not later than one 
year after the date of enactment of the Individuals with Disabilities 
Education Improvement Act of 2004.
    (2) Duties. The duties of the NIMAC are the following:
    (A) To receive and maintain a catalog of print instructional 
materials prepared in the NIMAS, as established by the Secretary, made 
available to such center by the textbook publishing industry, State 
educational agencies, and local educational agencies.
    (B) To provide access to print instructional materials, including 
textbooks, in accessible media, free of charge, to blind or other 
persons with print disabilities in elementary schools and secondary 
schools, in accordance with such terms and procedures as the NIMAC may 
prescribe.
    (C) To develop, adopt and publish procedures to protect against 
copyright infringement, with respect to the print instructional 
materials provided under sections 612(a)(23) and 613(a)(6).
    The definitions of blind persons or other persons with print 
disabilities and specialized format both refer to statutes other than 
the Act. For the reasons set forth earlier in this notice, we are 
referencing the definitions of terms in Sec.  300.172(e), rather than 
adding them to these regulations. However, we will include them here 
for the convenience of the readers.
    The Library of Congress regulations (36 CFR 701.6(b)(1)) related to 
the Act to Provide Books for the Adult Blind (approved March 3, 1931, 2 
U.S.C. 135a) provide that blind persons or other persons with print 
disabilities include:
    (i) Blind persons whose visual acuity, as determined by competent 
authority, is 20/200 or less in the better eye with correcting glasses, 
or whose widest diameter if visual field subtends an angular distance 
no greater than 20 degrees.
    (ii) Persons whose visual disability, with correction and 
regardless of optical measurement, is certified by competent authority 
as preventing the reading of standard printed material.
    (iii) Persons certified by competent authority as unable to read or 
unable to use standard printed material as a result of physical 
limitations.
    (iv) Persons certified by competent authority as having a reading 
disability resulting from organic dysfunction and of sufficient 
severity to prevent their reading printed material in a normal manner.
    Competent authority is defined in 36 CFR 701.6(b)(2) as follows:
    (i) In cases of blindness, visual disability, or physical 
limitations ``competent authority'' is defined to include doctors of 
medicine, doctors of osteopathy, ophthalmologists, optometrists, 
registered nurses, therapists, professional staff of hospitals, 
institutions, and public or welfare agencies (e.g., social workers, 
case workers, counselors, rehabilitation teachers, and 
superintendents).
    (ii) In the case of a reading disability from organic dysfunction, 
competent authority is defined as doctors of medicine who may consult 
with colleagues in associated disciplines.
    Specialized formats has the meaning given the term in section 
121(d)(4) of title 17, United States Code:
    (A) Braille, audio, or digital text which is exclusively for use by 
blind or other persons with disabilities.
    (B) With respect to print instructional materials, includes large 
print formats when such materials are distributed exclusively for use 
by blind or other persons with disabilities.
    Changes: As noted earlier, we have amended paragraph (e) of Sec.  
300.172 by adding a new paragraph (e)(2) to clarify that the 
definitions in Sec.  300.172(e)(1) apply to each SEA and LEA whether or 
not the SEA or LEA chooses to coordinate with the NIMAC. We have made 
technical changes to Sec.  300.172(e) and renumbered Sec.  300.172(e) 
to be consistent with this change.

[[Page 46622]]

Prohibition on Mandatory Medication (Sec.  300.174)
    Comment: A few commenters expressed concern that the regulations do 
not provide sufficient guidance on what school personnel can 
communicate to parents regarding medication. The commenters stated that 
in the absence of additional guidance, the regulations have the 
unintended effect of preventing school personnel from speaking openly 
with parents regarding classroom behavior, options for addressing 
behavior problems, and the impact of a child's medication on classroom 
behavior. Further, the commenters requested that the regulations do 
more to encourage school personnel to recommend evaluations for 
children with behavior problems and communicate openly with parents 
about the effectiveness of treatment, and protect school personnel. 
Other commenters recommended requiring school personnel to inform 
parents if they suspect that a child's behavior may be related to a 
disability.
    Discussion: We believe that Sec.  300.174 provides sufficient 
guidance on what school personnel can and cannot communicate to parents 
regarding a child's medication. Paragraph (a) clarifies that school 
personnel cannot require parents to obtain a prescription for 
medication for a child as a condition of attending school, receiving an 
evaluation to determine if a child is eligible for special education 
services, or receiving special education and related services under the 
Act. Paragraph (b) clearly permits classroom personnel to speak with 
parents or guardians regarding a child's academic and functional 
performance, behavior in the classroom or school, or the need for an 
evaluation to determine the need for special education or related 
services.
    We do not believe that further regulations are needed to encourage 
school personnel to recommend evaluations for children with behavior 
problems or to require school personnel to inform parents if they 
suspect a child's behavior may be related to a disability. The child 
find requirements in Sec.  300.111 clarify that States must have in 
effect policies and procedures to ensure that all children with 
disabilities residing in a State and who are in need of special 
education and related services, are identified, located, and evaluated.
    Changes: None.
States' Sovereign Immunity (New Sec.  300.177)
    Comment: None.
    Discussion: In developing the proposed regulations, we incorporated 
those provisions of subpart A that apply to States. We inadvertently 
omitted the provisions in section 604 of the Act, regarding States' 
sovereign immunity. We have added these to the regulations in new Sec.  
300.177. In paragraph (a), we have clarified that the statutory 
language means that a State must waive immunity in order to receive 
Part B funds. This is the longstanding interpretation of the Department 
and is consistent with Federal Circuit Courts' decisions interpreting 
this statutory language. (See, e.g., Pace v. Bogalusa City Sch. Bd., 
403 F.3d 272 (5th Cir. 2005); M.A. ex rel. E.S. v. State-Operated Sch. 
Dist., 344 F.3d 335 (3rd Cir. 2003); Little Rock Sch. Dist. v. Mauney, 
183 F.3d 816 (8th Cir. 1999); Marie O. v. Edgar, 131 F.3d 610 (7th Cir. 
1997).)
    Changes: We have added the provisions in section 604 of the Act, 
regarding States' sovereign immunity, to new Sec.  300.177.
Department Procedures (Sec. Sec.  300.178 Through 300.186)
    Comment: One commenter stated that the requirements in Sec. Sec.  
300.179 through 300.183, regarding the notice and hearing procedures 
before the Secretary determines a State is not eligible to receive a 
grant under Part B of the Act, are unnecessary and go beyond what is 
required in section 612(d) of the Act. The commenter recommended 
removing Sec. Sec.  300.179 through 300.183 and including additional 
language in Sec.  300.178 clarifying that the Secretary has the 
authority to develop specific administrative procedures to determine if 
States meet statutory requirements for eligibility under Part B of the 
Act and that such procedures must include notification of eligibility 
or non-eligibility, an opportunity for a hearing, and an opportunity 
for appeal of the hearing decision.
    Discussion: The Department does not agree with the commenter that 
the notification and hearing procedures included in Sec. Sec.  300.179 
through 300.183 are unnecessary and go beyond what is required in 
section 612(d) of the Act. Section 612(d)(2) of the Act states that the 
Secretary shall not make a final determination that a State is not 
eligible to receive a grant under this part until after providing the 
State with reasonable notice and an opportunity for a hearing. When the 
Secretary proposes to deny a State's eligibility to receive a grant 
under Part B of the Act, withhold funds, or take other enforcement 
action, it is important to all parties that the process through which 
those issues will be decided is clearly described, so that time, money, 
and effort are not spent resolving procedural questions instead of the 
underlying issues. For these reasons, we believe it is important to 
retain Sec. Sec.  300.179 through 300.183 in the regulations.
    Changes: None.
Judicial Review (Sec.  300.184)
    Comment: One commenter requested that we clarify in the regulations 
the status of a State's operation of a program or eligibility to 
receive a grant under Part B of the Act while a final judicial decision 
is pending with respect to the State's eligibility under section 612 of 
the Act.
    Discussion: Under section 612(a) of the Act, States must meet 
certain conditions in order to be eligible for a grant under the Part B 
program. Under section 612(d) of the Act, if the Secretary, after 
notice and an opportunity for a hearing, makes a final determination 
that a State is not eligible for a grant, the Secretary may not award 
funds to the State. The procedures in Sec. Sec.  300.179 through 
300.183 detail the process through which the Secretary notifies a State 
of a proposed ineligibility determination, the hearing available to the 
State to dispute this proposal, and the process through which the 
Secretary makes a final determination. The Secretary's final 
determination may be appealed through the judicial review procedure 
described in section 616(e)(8) of the Act and Sec.  300.184. We decline 
to address this issue more specifically in the regulations, however, as 
we think the regulations already adequately convey the idea that only 
States that the Secretary determines to be eligible can receive a 
grant.
    Changes: None.
By-Pass for Children in Private Schools (Sec. Sec.  300.190 through 
300.198)
    Comment: One commenter stated that Sec. Sec.  300.190 through 
300.198 are unnecessary because the Act gives sufficient authority for 
the Secretary to implement a by-pass for children with disabilities 
enrolled in private elementary schools and secondary schools.
    Discussion: Section 300.190 retains the authority for a by-pass in 
current Sec.  300.480 and includes additional authority for a by-pass, 
consistent with section 612(f)(1) of the Act, in cases where the 
Secretary determines that an SEA, LEA, or public agency has 
substantially failed, or is unwilling, to provide for equitable 
participation of parentally-placed private school children with 
disabilities. When the Secretary authorizes a by-pass it is important 
that all parties understand the

[[Page 46623]]

process by which the Secretary determines the funds that will be 
deducted from the State's allocation under Part B of the Act to provide 
services, as well as the actions that are required before the Secretary 
takes any final action to implement a by-pass. When such processes and 
procedures are clearly described, time, money, and effort are not spent 
resolving procedural questions. The requirements in Sec. Sec.  300.190 
through 300.198 provide this information and we believe are necessary 
to clarify and ensure effective implementation of the by-pass 
provisions in the Act. We are making one change to Sec.  300.191(d) to 
clarify that the Secretary deducts amounts the Secretary determines 
necessary to implement a by-pass from the State's allocations under 
sections 611 and 619 of the Act.
    Changes: In Sec.  300.191(d) we have substituted a reference to 
sections 611 and 619 of the Act for a reference to Part B of the Act.
Show Cause Hearing (Sec.  300.194)
    Comment: One commenter opposed allowing a lawyer for the SEA or LEA 
to present oral and written evidence and arguments at a show cause 
hearing because parents are often intimidated by having to face a 
lawyer.
    Discussion: Section 300.194(a)(3) provides an opportunity for an 
SEA, LEA, or other public agency, and representatives of private 
elementary schools and secondary schools to be represented by legal 
counsel and to submit oral or written evidence or arguments at a 
hearing to show cause why a by-pass should not be implemented. Parents 
are not parties to this hearing and generally would not appear before 
the show cause hearing officer, and would, therefore, not be 
intimidated by a participating lawyer. We believe that it is only fair 
that the party to the hearing (SEA, LEA, or other public agency, and 
representatives of private schools) be provided the option to be 
represented by legal counsel because legal counsel will generally 
represent the Department, as a party to the hearing.
    Changes: None.
State Administration (Sec.  300.199)
    Comment: One commenter indicated that Sec.  300.199 is improperly 
placed in the regulations under the general heading ``By-pass for 
Children in Private Schools.''
    Discussion: We agree with the commenter that Sec.  300.199 does not 
belong under the general heading ``By-Pass for Children in Private 
Schools.''
    Changes: A new undesignated center heading entitled ``State 
Administration'' will be added immediately preceding Sec.  300.199 to 
separate that section from the regulations related to implementation of 
the by-pass provisions of the Act.
    Comment: One commenter recommended including in Sec.  300.199 a 
requirement that States may not eliminate from their rules, 
regulations, and policies any provisions required by Part B of the Act 
and its implementing regulations.
    Discussion: Section 300.199 incorporates the requirement in section 
608 of the Act that any rulemaking related to the Act conducted by the 
State conform to the purposes of the Act. Consistent with section 608 
of the Act, Sec.  300.199 makes clear that each State that receives 
funds under Part B of the Act must ensure that any State rules, 
regulations, and policies relating to 34 CFR part 300 conform to the 
provisions of 34 CFR part 300. We do not believe it is necessary to add 
a provision in Sec.  300.199 prohibiting States from eliminating from 
their rules, regulations, and policies any provisions required by Part 
B of the Act and its implementing regulations, as requested by the 
commenter. If a State were to do so, the State's rules, regulations, 
and policies would not conform to the provisions in 34 CFR part 300. 
Under this provision, a State, and not the Secretary, determines 
whether a particular rule, regulation, or policy conforms to the 
purposes of the Act.
    Changes: None.
    Comment: Some commenters expressed concern that the mandate to 
minimize State rules and regulations might discourage States from 
developing beneficial programs, and, therefore, should not pertain to 
policies that promote best practices, increased parental involvement, 
educating children in the least restrictive environment, and improving 
access to the general curriculum. One commenter recommended including a 
statement in the regulations that a State would not be penalized for 
exceeding the minimum requirements of the Act. A few commenters stated 
that the services provided by the Act were intended to be a ``floor,'' 
rather than a ``ceiling'' and recommended a pilot program to encourage 
States to adopt rules that best serve the needs of children with 
disabilities.
    Discussion: We do not agree that the regulations discourage States 
from developing beneficial programs or establishing rules that best 
serve the needs of children with disabilities. In fact, Sec.  
300.199(b), consistent with section 608(b) of the Act, requires State 
rules, regulations, and policies under the Act to support and 
facilitate LEA and school-level system improvement designed to enable 
children with disabilities to meet challenging State student academic 
achievement standards.
    Section 300.199(a), consistent with section 608(a) of the Act, is 
intended to minimize the number of rules, regulations, and policies to 
which LEAs and schools are subject under the Act, and to identify in 
writing any rule, regulation, or policy that is State-imposed and not 
required under the Act and its implementing regulations. The 
Department's position is consistent with S. Rpt. No. 108-185, p. 10, 
which states ``Through section 608(a), the committee is in no way 
attempting to reduce State input or State practice in this area, but 
intends to make clear what is a Federal obligation and what is a State 
or local educational agency requirement for the Act.'' We believe it is 
important for parents, teachers, school administrators, State 
lawmakers, and others to understand what is required under the Act, 
and, therefore, do not believe that Sec.  300.199 should be changed.
    Changes: None.

Subpart C--Local Educational Agency Eligibility

Consistency With State Policies (Sec.  300.201)

    Comment: Some commenters recommended requiring LEAs to seek input 
from parents of children with disabilities in the development of LEA 
policies, procedures, and programs.
    Discussion: Section 300.201, consistent with section 613(a)(1) of 
the Act, requires each LEA to have in effect policies, procedures, and 
programs that are consistent with State policies and procedures. It is 
up to each State and its LEAs to determine the manner in which LEAs 
develop their policies, procedures, and programs, consistent with State 
law and procedures. The Act does not authorize the Department to impose 
additional obligations on States or LEAs with respect to the 
development of LEA policies, procedures, and programs.
    Changes: None.

Maintenance of effort (Sec. Sec.  300.202 through 300.205)

    Comment: A few commenters stated that the maintenance of effort 
requirements are complicated and unnecessary and should be eliminated 
or simplified.
    Discussion: Sections 300.202 through 300.205, regarding maintenance 
of effort and the LEA's use of funds received

[[Page 46624]]

under Part B of the Act, reflect the specific statutory requirements in 
section 613(a)(2) of the Act, as well as necessary information 
regarding the implementation of these requirements. Much of the 
additional information in Sec. Sec.  300.202 through 300.205 was 
included in various sections throughout the current regulations. We 
continue to believe that this information is necessary for the proper 
implementation of the Act. Section 300.204(e), which has been newly 
added to the regulations, includes the assumption of costs by the high 
cost fund as an additional condition under which an LEA may reduce its 
level of expenditures. We believe this provision is necessary because 
LEAs should not be required to maintain a level of fiscal effort based 
on costs that are assumed by the SEA's high cost fund.
    In short, we have tried to present the regulations relating to LEA 
maintenance of effort in a clear manner, while being consistent with 
the language of the Act (which we do not have the authority to change) 
and including only as much additional information as is necessary to 
ensure proper implementation of the Act.
    Changes: None.
    Comment: One commenter stated that LEAs should be permitted to use 
a reasonable amount of their Part B funds to meet the Act's 
requirements relating to student assessment, outcomes, complaints, 
compliance monitoring, mediation, and due process hearings.
    Discussion: With one exception, nothing in the Act or these 
regulations would prevent an LEA from using its Part B allotment for 
the activities noted by the commenter, so long as the expenditures meet 
the other applicable requirements under the Act and regulations.
    LEAs may not use their Part B funds to support the mediation 
process described in Sec.  300.506. Consistent with section 
615(e)(2)(D) of the Act, Sec.  300.506(b)(4) requires the State (not 
the LEA) to bear the cost of that mediation process. Although LEAs may 
not use their Part B funds to support the mediation process required 
under Sec.  300.506(b)(4), they may use their Part B funds to support 
alternative mediation processes that they offer. Some LEAs (and States) 
offer alternative mediation processes, in addition to the mediation 
process required under section 615 of the Act. These alternative 
mediation processes generally were established prior to the Federal 
mandate for mediation and some LEAs (and States) continue to offer 
parents the option of using these alternative mediation processes to 
resolve disputes. Therefore, if an LEA has an alternative mediation 
process, it may use its Part B funds for this process, so long as 
parents are provided access to the required mediation process under 
section 615 of the Act and are not required to use an alternative 
mediation process in order to engage in the mediation process provided 
under section 615 of the Act.
    Changes: None.
    Comment: Several commenters requested clarifying that ``per 
capita'' in Sec.  300.203(b) means the amount per child with a 
disability in an LEA.
    Discussion: We do not believe it is necessary to include a 
definition of ``per capita'' in Sec.  300.203(b) because we believe 
that, in the context of the regulations, it is clear that we are using 
this term to refer to the amount per child with a disability served by 
the LEA.
    Changes: None.

Exception to Maintenance of Effort (Sec.  300.204)

    Comment: One commenter recommended expanding the exceptions to the 
maintenance of effort requirements in Sec.  300.204(a) to include 
negotiated reductions in staff salaries or benefits so that LEAs are 
not penalized for being proactive in reducing costs. Another commenter 
recommended revising Sec.  300.204 to allow LEAs to apply for a waiver 
of the maintenance of effort requirements in cases of fiscal 
emergencies.
    Discussion: Section 300.204(a) through (d) reflects the language in 
section 613(a)(2)(B) of the Act and clarifies the conditions under 
which LEAs may reduce the level of expenditures below the level of 
expenditures for the preceding year. Nothing in the Act permits an 
exception for negotiated reductions in staff salaries or benefits or 
financial emergencies. Accordingly, to expand the exceptions to the 
maintenance of effort requirements, as recommended by the commenters, 
would be beyond the authority of the Department.
    Changes: None.
    Comment: Some commenters requested clarification as to whether the 
exceptions to the maintenance of effort requirements apply to an LEA 
that uses funds from its SEA's high cost fund under Sec.  300.704(c) 
during the preceding year.
    Discussion: We do not believe further clarification is necessary 
because Sec.  300.204(e) clearly states that the assumption of costs by 
a State-operated high cost fund under Sec.  300.704(c) would be a 
permissible reason for reducing local maintenance of effort. This 
provision was included in the proposed regulations in recognition that 
the new statutory authority in section 611(e)(3) of the Act that 
permits States to establish a fund to pay for some high costs 
associated with certain children with disabilities could logically and 
appropriately result in lower expenditures for some LEAs.
    Changes: None.

Adjustments to Local Fiscal Efforts in Certain Fiscal Years (Sec.  
300.205)

    Comment: A few commenters stated that the link between early 
intervening services and reductions in maintenance of effort in Sec.  
300.205(d) is not in the Act. Some commenters expressed concern that 
this requirement forces an LEA to choose between providing early 
intervening services and directing local funds toward nondisabled 
children. One commenter stated that linking the use of funds for early 
intervening services to reduction in maintenance of effort in Sec.  
300.205 is not logical and was not the intent of Congress.
    Discussion: The link between reductions in local maintenance of 
effort (reflected in Sec.  300.205(d)) and the amount of Part B funds 
that LEAs may use to provide early intervening services (reflected in 
Sec.  300.226) is established in the Act. Section 300.205(d) tracks the 
statutory language in section 613(a)(2)(C)(iv) of the Act and Sec.  
300.226(a) tracks the statutory language in section 613(f)(1) of the 
Act. Section 300.205(d) states that the amount of funds expended by an 
LEA for early intervening services under Sec.  300.226 counts toward 
the maximum amount of expenditures that an LEA may reduce in its local 
maintenance of effort. Section 300.226(a) clearly states that the 
amount of Part B funds an LEA may use to provide early intervening 
services may not exceed 15 percent of the funds the LEA receives under 
Part B of the Act less any amount reduced by the LEA under Sec.  
300.205.
    As noted in the NPRM, the Department believes it is important to 
caution LEAs that seek to reduce their local maintenance of effort in 
accordance with Sec.  300.205(d) and use some of their Part B funds for 
early intervening services under Sec.  300.226 because the local 
maintenance of effort reduction provision and the authority to use Part 
B funds for early intervening services are interconnected. The decision 
that an LEA makes about the amount of funds that it uses for one 
purpose affects the amount that it may use for the other. Appendix D to 
Part 300--Maintenance of Effort and Early Intervening Services includes 
examples that illustrate how Sec. Sec.  300.205(d) and 300.226(a) 
affect one another.

[[Page 46625]]

    Changes: We have added a reference to Appendix D in Sec.  
300.226(a).

Schoolwide Programs Under Title I of the ESEA (Sec.  300.206)

    Comment: A few commenters recommended specifying in Sec.  
300.206(b) that LEAs can use only funds provided under section 611 of 
the Act (and not section 619 of the Act) to carry out a schoolwide 
program under section 1114 of the ESEA. The commenters stated that this 
change is necessary so that the per capita amount of Federal Part B 
funds used to carry out a schoolwide program is not artificially 
inflated by including preschool grant funds that are used to serve 
children ages three through five who are not placed in a title I 
school.
    Discussion: Section 613(a)(2)(D) of the Act specifically provides 
that an LEA may use any funds it receives under Part B of the Act to 
carry out schoolwide programs under title I of the ESEA. Part B funds 
include any funds an LEA receives under sections 611 and 619 of the 
Act.
    Changes: None.

Personnel Development (Sec.  300.207)

    Comment: A few commenters suggested requiring LEAs to train their 
personnel through research-based practices in order to ensure that 
personnel are appropriately and adequately prepared to implement Part B 
of the Act.
    Discussion: We believe the regulations already address the 
commenters' concern and reflect the Department's position that high-
quality professional development, including the use of scientifically 
based instructional practices, is important to ensure that personnel 
have the skills and knowledge necessary to improve the academic 
achievement and functional performance of children with disabilities. 
Section 300.207, consistent with section 613(a)(3) of the Act, requires 
each LEA to ensure that all personnel necessary to carry out Part B of 
the Act are appropriately prepared, subject to the requirements in 
Sec.  300.156 and section 2122 of the ESEA.
    Section 300.156(a), consistent with section 612(a)(14) of the Act, 
clearly states that each State must establish and maintain 
qualifications to ensure that personnel are appropriately and 
adequately prepared and trained, and have the content knowledge and 
skills to serve children with disabilities. Further, section 
2122(b)(1)(B) of the ESEA requires an LEA's application to the State 
for title II funds (Preparing, training, and recruiting high quality 
teachers and principals) to address how the LEA's activities will be 
based on a review of scientifically based research.
    Changes: None.

Purchase of Instructional Materials (Sec.  300.210)

    Comment: One commenter recommended requiring LEAs to hold public 
hearings that meet the requirements in section 612(a)(19) of the Act 
before adopting its policies and procedures to purchase instructional 
materials. The commenter stated that all interested members of the 
public, including parents of children with disabilities, are entitled 
to participate in designing the plan to meet the requirements in Sec.  
300.210.
    Discussion: The Act does not require LEAs to hold public hearings 
before implementing new policies and procedures. This is a matter for 
each State to determine, based on its rules governing public hearings 
and public comment. Therefore, we do not believe it is appropriate for 
these regulations to require LEAs to hold public hearings and receive 
public comment on the LEA's purchase of instructional materials, as 
requested by the commenter.
    Changes: None.
    Comment: One commenter stated that the requirements in Sec.  
300.210(b)(3) are unnecessary and should be removed because the Act 
does not require LEAs to provide accessible materials for children with 
disabilities for whom assistance is not available from the NIMAC.
    Discussion: We believe that Sec.  300.210(b)(3) is necessary 
because timely access to appropriate and accessible instructional 
materials is an inherent component of an LEA's obligation under the Act 
to ensure that FAPE is available for all children with disabilities and 
that children with disabilities participate in the general curriculum 
as specified in their IEPs. Because the NIMAC is not required to serve 
all children with disabilities who need accessible materials, we 
believe it is important that the regulations make clear that LEAs are 
still responsible for ensuring that children with disabilities who need 
instructional materials in accessible formats, but who do not fall 
within the definition of children who are eligible to receive materials 
produced from NIMAS files obtained through the NIMAC, receive them in a 
timely manner. We, therefore, decline to delete Sec.  300.210(b)(3).
    Changes: None.
    Comment: A significant number of commenters expressed concern about 
allowing LEAs to choose not to coordinate with the NIMAC. A few 
commenters stated that coordination with the NIMAC should be mandatory 
for all LEAs. Other commenters recommended that LEAs that cannot 
demonstrate a history of providing instructional materials to children 
with disabilities in a timely manner should be required to coordinate 
with the NIMAC.
    Discussion: It would be inconsistent with section 613(a)(6)(B) of 
the Act to make coordination with the NIMAC mandatory for all LEAs or 
to require certain LEAs to coordinate with the NIMAC (e.g., LEAs that 
do not have a history of providing instructional materials to children 
with disabilities in a timely manner). Section 613(a)(6)(B) of the Act 
provides that nothing in the Act shall be construed to require any LEA 
to coordinate with the NIMAC.
    Changes: None.
    Comment: Several commenters requested that the regulations clearly 
define the process LEAs must go through if they choose not to 
coordinate with the NIMAC. A few commenters requested additional 
details on what assurances LEAs must provide if they choose not to 
coordinate with the NIMAC. A few commenters requested that LEA 
assurances provide the public with information to evaluate the capacity 
of the LEA to provide materials to children who are blind or have print 
disabilities. Some commenters stated that the assurances provided by 
LEAs that choose not to coordinate with the NIMAC should be done 
annually and in writing.
    Several commenters requested that the regulations provide a means 
for the public to obtain information about which LEAs choose not to 
coordinate with the NIMAC. A few commenters recommended requiring LEAs 
to report to the Department whether they choose to coordinate with the 
NIMAC. Some commenters requested that the Department publish the 
assurances made in accordance with Sec.  300.210(b) by LEAs that choose 
not to coordinate with the NIMAC.
    Discussion: The process by which LEAs choose not to coordinate with 
the NIMAC and the assurances that LEAs must provide if they choose not 
to coordinate with the NIMAC are determined by each State. Section 
300.210(b)(2), consistent with section 613(a)(6)(B) of the Act, states 
that, if an LEA chooses not to coordinate with the NIMAC, the LEA must 
provide an assurance to the SEA that the LEA will provide instructional 
materials to blind persons or other persons with print disabilities in 
a timely manner. Therefore, it would be unnecessary and burdensome to 
require LEAs to provide

[[Page 46626]]

assurances to the Department or to require LEAs to report to the 
Department whether they choose to coordinate with the NIMAC. Each State 
has its own mechanisms and processes for obtaining assurances from its 
LEAs, and we believe it would be inappropriate for these regulations to 
define the process by which LEAs inform the SEA that they choose not to 
coordinate with the NIMAC or to specify the content of the assurances 
that LEAs must provide to the SEA if they choose not to coordinate with 
the NIMAC. Similarly, it is up to each State to determine whether and 
how the State will provide information to the public about LEAs in the 
State that choose not to coordinate with the NIMAC.
    Changes: None.
    Comment: Some commenters proposed that the regulations require LEAs 
that choose not to coordinate with the NIMAC to annually report to the 
public on when children with disabilities receive their materials, how 
print materials are provided in a timely manner, and the steps the LEA 
has taken to ensure that materials are provided at the same time as 
materials are provided to children without disabilities. Other 
commenters recommended requiring LEAs that choose not to coordinate 
with the NIMAC to develop and publish their policies and procedures 
that govern how they maintain and distribute NIMAS files.
    Discussion: We believe that imposing additional data collection and 
reporting requirements, such as those requested by the commenters, on 
LEAs that choose not to coordinate with the NIMAC is a matter that is 
best left to the States. States are responsible for ensuring that 
accessible instructional materials are provided in a timely manner to 
all children with disabilities who need them, and are, therefore, in 
the best position to know what controls, if any, are needed in their 
State to ensure that LEAS comply with the requirements in Sec.  
300.210(b)(3). All LEAs, regardless of whether they choose to 
coordinate with the NIMAC, must ensure that children with disabilities 
who need instructional materials in accessible formats receive them in 
a timely manner, consistent with Sec.  300.210(b)(3).
    Changes: None.
    Comment: A few commenters requested that the Department provide 
information to LEAs on the NIMAC and the NIMAS so that LEAs can make an 
informed choice regarding whether to coordinate with the NIMAC.
    Discussion: The Department recognizes the need to provide 
information to LEAs regarding the NIMAC and the NIMAS. The Department 
has already provided numerous informational sessions on the NIMAC and 
NIMAS and more are planned following the publication of the regulations 
and approval of the NIMAC procedures. Information about the NIMAC 
Technical Assistance Center is available at the following Web site: 
http://www.aph.org/nimac/index.html Information on the NIMAS can be obtained at: http://nimas.cast.org.

    Changes: None.

Early Intervening Services (Sec.  300.226)

    Comment: One commenter recommended clarifying that early 
intervening services should not be used to delay the evaluation of 
children suspected of having a disability.
    Discussion: We believe that Sec.  300.226(c), which states that 
nothing in Sec.  300.226 will be construed to delay appropriate 
evaluation of a child suspected of having a disability, makes clear 
that early intervening services may not delay an appropriate evaluation 
of a child suspected of having a disability.
    Changes: None.
    Comment: One commenter expressed concern that the requirements for 
early intervening services do not adequately protect the child's right 
to FAPE and recommended that the requirements include provisions 
regarding notice, consent, and withdrawal of consent, as well as 
guidelines for referrals for evaluation.
    Discussion: Children receiving early intervening services do not 
have the same rights and protections as children identified as eligible 
for services under sections 614 and 615 of the Act. Section 300.226(c), 
consistent with section 613(f)(3) of the Act, is clear that early 
intervening services neither limit nor create a right to FAPE.
    Changes: None.
    Comment: Some commenters recommended that the regulations specify 
how long a child may receive early intervening services before an 
initial evaluation for special education services under Sec.  300.301 
is conducted.
    Discussion: We do not believe it is appropriate or necessary to 
specify how long a child can receive early intervening services before 
an initial evaluation is conducted. If a child receiving early 
intervening services is suspected of having a disability, the LEA must 
conduct a full and individual evaluation in accordance with Sec. Sec.  
300.301, 300.304 and 300.305 to determine if the child is a child with 
a disability and needs special education and related services.
    Changes: None.
    Comment: A few commenters suggested clarifying that Part B funds 
for early intervening services should not be used for any child 
previously identified as being a child with a disability.
    Discussion: A child previously identified as being a child with a 
disability who currently does not need special education or related 
services would not be prevented from receiving early intervening 
services. For example, a child who received special education services 
in kindergarten and had services discontinued in grade 1 (because the 
public agency and the parent agreed that the child was no longer a 
child with a disability), could receive early intervening services in 
grade 2 if the child was found to be in need of additional academic and 
behavioral supports to succeed in the general education environment. We 
believe that language should be added to Sec.  300.226 to clarify that 
early intervening services are for children who are not currently 
identified as needing special education or related services.
    Changes: We have modified Sec.  300.226(a) to clarify that early 
intervening services are available to children who currently are not 
identified as needing special education or related services.
    Comment: One commenter recommended specifying that unless LEAs have 
significant over-identification and over-representation of minority 
students in special education, LEAs may not use Federal Part B funds 
for early intervening services unless they can demonstrate that all 
eligible children are receiving FAPE. Another commenter suggested 
prohibiting the use of Part B funds for early intervening services if 
an LEA is not providing FAPE to all eligible children.
    Discussion: The Act does not restrict the use of funds for early 
intervening services only to LEAs that can demonstrate that all 
eligible children with disabilities are receiving FAPE. Section 
613(f)(1) of the Act generally permits LEAs to use funds for early 
intervening services for children in kindergarten through grade 12 
(with a particular emphasis on children in kindergarten through grade 
3) who have not been identified as needing special education or related 
services, but who need additional academic and behavioral support to 
succeed in a general education environment. No other restrictions on 
this authority, such as a requirement that the LEA first demonstrate 
that it is providing FAPE to all eligible children, are specified or 
appropriate. The authority to use some Part B funds for early 
intervening

[[Page 46627]]

services has the potential to benefit special education, as well as the 
education of other children, by reducing academic and behavioral 
problems in the regular educational environment and reducing the number 
of referrals to special education that could have been avoided by 
relatively simple regular education interventions. Therefore, we 
believe the use of Part B funds for early intervening services should 
be encouraged, rather than restricted.
    In one instance, however, the Act requires the use of funds for 
early intervening services. Under section 618(d)(2)(B) of the Act, LEAs 
that are identified as having significant disproportionality based on 
race and ethnicity with respect to the identification of children with 
disabilities, the placement of children with disabilities in particular 
educational settings, and the incidence, duration, and type of 
disciplinary actions taken against children with disabilities, 
including suspensions and expulsions, are required to reserve the 
maximum amount of funds under section 613(f)(1) of the Act to provide 
early intervening services to children in the LEA, particularly to 
children in those groups that were significantly over-identified. This 
requirement is in recognition of the fact that significant 
disproportionality in special education may be the result of 
inappropriate regular education responses to academic or behavioral 
issues.
    Changes: None.
    Comment: One commenter recommended permitting LEAs to spend funds 
for early intervening services on literacy instruction programs that 
target at-risk limited English proficient students.
    Discussion: There is nothing in the Act that would preclude LEAs 
from using Part B funds for early intervening services, including 
literacy instruction, that target at-risk limited English proficient 
students who have not been identified as needing special education or 
related services, but who need additional academic and behavioral 
support to succeed in a general education environment.
    Changes: None.
    Comment: One commenter requested clarification as to whether ESAs 
or other public institutions or agencies, in addition to LEAs, have the 
authority to provide early intervening services.
    Discussion: We do not believe any clarification is necessary 
because Sec.  300.226, consistent with section 613(f) of the Act, 
states that LEAs may use Part B funds to develop and implement 
coordinated early intervening services. As defined in Sec.  300.28(b), 
local educational agency or LEA includes ESAs and any other public 
institution or agency having administrative control and direction of a 
public elementary school or secondary school, including a public 
nonprofit charter school that is established as an LEA under State law.
    Changes: None.
    Comment: Some commenters suggested modifying the regulations to 
permit children age 3 through 21 to receive early intervening services. 
The commenters stated that this change would allow schools to provide 
early academic and behavioral supports to preschool children.
    Discussion: Early intervening services may not be used for 
preschool children. Section 300.226(a) tracks the statutory language in 
section 613(f)(1) of the Act, which states that early intervening 
services are for children in kindergarten through grade 12, with a 
particular emphasis on children in kindergarten through grade 3.
    Changes: None.
    Comment: One commenter recommended clarifying in the regulations 
that early intervening services are not equivalent to early 
intervention services.
    Discussion: We do not believe any changes are necessary to the 
regulations to clarify the difference between early intervening 
services provided under Part B of the Act and early intervention 
services provided under Part C of the Act. Following is a description 
of the two types of services:
    Early intervening services provided under section 613(f) of the Act 
are services for children in kindergarten through grade 12 (with a 
particular emphasis on children in kindergarten through grade 3) who 
have not been identified as needing special education and related 
services, but who need additional academic and behavioral support to 
succeed in a general education environment.
    Early intervention services, on the other hand, are services for 
children birth through age two that are designed to meet the 
developmental needs of infants and toddlers with disabilities under 
section 632 in Part C of the Act. Section 632(5)(A) of the Act defines 
infant or toddler with a disability as a child under the age of three 
years who (a) is experiencing developmental delays in one or more of 
the areas of cognitive development, physical development, communication 
development, social or emotional development, and adaptive development, 
or (b) has a diagnosed physical or mental condition that has a high 
probability of resulting in developmental delay. In addition, some 
States also provide early intervention services to infants and toddlers 
who are at risk of having a developmental delay. The Part C regulations 
will address, in detail, the early intervention services provided under 
section 632 of the Act.
    Changes: None.
    Comment: One commenter asked whether the reference to 
scientifically based academic and behavioral interventions in Sec.  
300.226(b) means that such interventions must be aligned with 
recommended practices and peer-reviewed research.
    Discussion: Section 300.226(b) follows the specific language in 
section 613(f)(2) of the Act and requires that in implementing 
coordinated, early intervening services, an LEA may provide, among 
other services, professional development for teachers and other 
personnel to enable such personnel to deliver scientifically based 
academic and behavioral interventions. The use of the term 
scientifically based in Sec.  300.226(b) is intended to be consistent 
with the definition of the term scientifically based research in 
section 9101(37) of the ESEA. Because this definition of scientifically 
based research is important to the implementation of Part B of the Act, 
a reference to section 9101(37) of the ESEA has been added in new Sec.  
300.35, and the full definition of the term has been included in the 
discussion of new Sec.  300.35. Under the definition, scientifically 
based research must be accepted by a peer-reviewed journal or approved 
by a panel of independent experts through a comparably rigorous, 
objective, and scientific review. We expect that the professional 
development activities authorized under Sec.  300.226(b)(1) will be 
derived from scientifically based research. The statute and regulations 
do not refer to ``recommended practices,'' which is a term of art that, 
generally, refers to practices that the field has adopted as ``best 
practices,'' and which may or may not be based on evidence from 
scientifically based research.
    Changes: None.
    Comment: Several commenters requested including related services 
personnel, including speech pathologists and school psychologists, in 
the development and delivery of educational and behavioral evaluations, 
services, and supports for teachers and other school staff to enable 
them to deliver coordinated, early intervening services.
    Discussion: State and local officials are in the best position to 
make decisions regarding the provision of early intervening services, 
including the specific personnel to provide the

[[Page 46628]]

services and the instructional materials and approaches to be used. 
Nothing in the Act or regulations prevents States and LEAs from 
including related services personnel in the development and delivery of 
educational and behavioral evaluations, services, and supports for 
teachers and other school staff to enable them to deliver coordinated, 
early intervening services.
    Changes: None.
    Comment: Several commenters recommended revising the regulations to 
allow public agencies to use Part B funds for early intervening 
services to purchase supplemental instructional materials to support 
the activities in Sec.  300.226(b).
    Discussion: We agree that supplemental instructional materials may 
be used, where appropriate, to support early intervening activities. 
The Conf. Rpt. in note 269 provides that

    [E]arly intervening services should make use of supplemental 
instructional materials, where appropriate, to support student 
learning. Children targeted for early intervening services under 
IDEA are the very students who are most likely to need additional 
reinforcement to the core curriculum used in the regular classroom. 
These are in fact the additional instructional materials that have 
been developed to supplement and therefore strengthen the efficacy 
of comprehensive core curriculum.

    We believe the terms ``services'' and ``supports'' in Sec.  
300.226(b)(2) are broad enough to include the use of supplemental 
instructional materials. Accordingly, we believe that it is unnecessary 
to add further clarification regarding the use of supplemental 
instructional materials in Sec.  300.226. Of course, use of funds for 
this purpose is subject to other requirements that apply to any use of 
funds, such as the limitation on purchase of equipment in section 605 
of the Act and applicable requirements in 34 CFR Parts 76 and 80.
    Changes: None.
    Comment: Several commenters requested requiring LEAs to provide 
parents with written notice regarding their child's participation in 
early intervening services, the goals for such services, and an 
opportunity to refuse services. Some commenters requested requiring 
LEAs to inform parents of their child's progress in early intervening 
services at reasonable intervals.
    Discussion: Section 300.226, consistent with section 613(f) of the 
Act, gives LEAs flexibility to develop and implement coordinated, early 
intervening services for children who are not currently receiving 
special education services, but who require additional academic and 
behavioral support to succeed in a regular education environment. Early 
intervening services will benefit both the regular and special 
education programs by reducing academic and behavioral problems in the 
regular education program and the number of inappropriate referrals for 
special education and related services. It would be overly restrictive 
and beyond the Department's authority to modify the regulations to 
include the additional requirements suggested by the commenters.
    Changes: None.
    Comment: One commenter stated that data should be collected 
regarding the effectiveness of early intervening services. Several 
commenters requested requiring LEAs to report to the SEA, and make 
available to the public, the number of children receiving early 
intervening services, the length of time the children received the 
services, the impact of the services, and the amount of Federal Part B 
funds used for early intervening services.
    Discussion: Section 300.226(d), consistent with section 613(f)(4) 
of the Act, requires LEAs that develop and maintain coordinated, early 
intervening services to annually report to their SEA on the number of 
children receiving early intervening services and the number of those 
children who eventually are identified as children with disabilities 
and receive special education and related services during the preceding 
two year period (i.e., the two years after the child has received early 
intervening services). We believe that these data are sufficient to 
provide LEAs and SEAs with the information needed to determine the 
impact of early intervening services on children and to determine if 
these services reduce the number of referrals for special education and 
related services. Requiring LEAs to collect and report data on the 
implementation of early intervening services beyond what is 
specifically required in section 613(f)(4) of the Act is unnecessary 
and would place additional paperwork burdens on LEAs and SEAs.
    Changes: None.
    Comment: Some commenters requested that the meaning of the terms 
``subsequently'' and ``preceding two year period'' in Sec.  
300.226(d)(2) be clarified.
    Discussion: Section 300.226(d)(2), consistent with section 
613(f)(4)(B) of the Act, requires LEAs to report on the number of 
children who are provided early intervening services who subsequently 
receive special education and related services under Part B of the Act 
during the preceding two years to determine if the provision of these 
services reduces the number of overall referrals for special education 
and related services. The Department intends for LEAs to report on 
children who began receiving special education services no more than 
two years after they received early intervening services. For the 
preceding two year period, the LEA would report on the number of 
children who received both early intervening services and special 
education services during those two years.
    Changes: None.

Direct Services by the SEA (Sec.  300.227)

    Comment: Some commenters requested that the regulations specify 
that SEAs providing direct services must make placement decisions based 
on the child's individual needs and must comply with all requirements 
for providing FAPE in the LRE.
    Discussion: We do not believe any changes to the regulations are 
necessary because Sec.  300.227(b), consistent with section 613(g)(2) 
of the Act, clearly states that SEAs providing direct special education 
and related services must do so in accordance with Part B of the Act. 
Accordingly, the special education and related services provided under 
Sec.  300.227 would be subject to the placement requirements in Sec.  
300.116 and the LRE requirements in Sec.  300.114 and section 612(a)(5) 
of the Act.
    Changes: None.

Disciplinary Information (Sec.  300.229)

    Comment: One commenter recommended clarifying that not all student 
disciplinary records can be transmitted by public agencies.
    Discussion: We believe that Sec.  300.229 is clear that not all 
student disciplinary records can be transmitted by public agencies. 
Section 300.229(a) provides that public agencies can transmit 
disciplinary information on children with disabilities only to the 
extent that the disciplinary information is included in, and 
transmitted with, the student records of nondisabled children. Section 
300.229(b) specifies the disciplinary information that may be 
transmitted, which includes a description of any behavior engaged in by 
the child that required disciplinary action, a description of the 
disciplinary action taken, and any other information that is relevant 
to the safety of the child and other individuals involved with the 
child.
    Changes: None.
    Comment: Some commenters requested that the required transmission 
of student records include both the child's current IEP and any 
statement of

[[Page 46629]]

current or previous disciplinary action related to weapons, drugs, or 
serious bodily injury that has been taken against the child.
    Discussion: It is important to clarify that the Act does not 
require the transmission of student disciplinary information when the 
child transfers from one school to another. Rather, section 613(i) of 
the Act allows each State to decide whether to require its public 
agencies to include disciplinary statements in student records and 
transmit such statements with student records when a child transfers 
from one school to another. The State's policy on transmitting 
disciplinary information must apply to both students with disabilities 
and students without disabilities.
    Section 300.229(b) provides that if a State requires its public 
agencies to include disciplinary statements in student records, these 
disciplinary statements may include a description of any behavior 
engaged in by the child that required disciplinary action, a 
description of the disciplinary action taken, and any other information 
that is relevant to the safety of the child and other individuals 
involved with the child; disciplinary actions taken against a child 
related to weapons, drugs, or serious bodily injury also could be 
included in these descriptions. If a State adopts such a policy, Sec.  
300.229(c) requires that the transmission of any of the child's student 
records include the child's current IEP and any statement of current or 
previous disciplinary action that has been taken against the child.
    Therefore, with regard to the commenters' request that the 
transmission of student records include any statement of current or 
previous disciplinary action related to weapons, drugs, or serious 
bodily injury that has been taken against the child, this information 
would be transmitted only to the extent that disciplinary statements 
are included in, and transmitted with, the student records of 
nondisabled children.
    Changes: None.
    Comment: One commenter recommended requiring that the transmission 
of a student's records include functional behavioral assessments and 
behavior intervention plans.
    Discussion: Any existing functional behavioral assessments and 
behavioral intervention plans would be part of the materials that must 
be transmitted under Sec.  300.323(g). In addition, if a State requires 
student records to include disciplinary information and the child 
transfers from one school to another, Sec.  300.229(c) requires that 
the transmission of any of the child's student records include the 
child's current IEP. Functional behavioral assessments and behavior 
intervention plans are not required components of the IEP under Sec.  
300.320. However, if a State considers functional behavioral 
assessments and behavior intervention plans to be part of a student's 
IEP, this information would be required to be transmitted when the 
child transfers from one school to another, consistent with Sec.  
300.229(c).
    Changes: None.

Subpart D--Evaluations, Eligibility Determinations, Individualized 
Education Programs, and Educational Placements

Parental Consent

Parental Consent (Sec.  300.300)
    Comment: A few commenters noted that the terms, ``consent,'' 
``informed consent,'' ``agree,'' and ``agree in writing'' are used 
throughout the regulations and stated that differences between the 
terms should be clarified. One commenter recommended that the 
regulations include the term ``informed'' every time the term 
``parental consent'' is used.
    Discussion: The use of these terms throughout the regulations is 
consistent with their use in the Act. The definition of consent in 
Sec.  300.9 includes the requirement that a parent be fully informed of 
all information relevant to the activity for which consent is sought. 
The definition also requires that a parent agree in writing to carrying 
out the activity for which the parent's consent is sought. Therefore, 
whenever the term ``consent'' is used in these regulations, it means 
that the consent is both ``informed'' and ``written.'' Similarly, the 
terms ``consent,'' ``informed consent,'' ``parental consent,'' and 
``written informed consent,'' as used in these regulations, all are 
intended to have the same meaning.
    The meaning of the terms ``agree'' or ``agreement'' is not the same 
as ``consent.'' ``Agree'' or ``agreement'' refer to an understanding 
between the parent and the LEA about a particular question or issue. 
There is no requirement that an agreement be in writing unless 
specifically stated in the Act and regulations.
    Changes: None.
    Comment: One commenter recommended that the regulations clarify 
what the required safeguards are if parents elect to receive notices 
electronically or provide electronic or digital signatures for 
consents, such as consent for an initial evaluation.
    Discussion: Section 300.505, consistent with section 615(n) of the 
Act, permits parents to elect to receive prior written notices, 
procedural safeguards notices, and due process complaint notices by an 
electronic mail communication, if the public agency makes that option 
available. The Act does not specify documentation requirements if the 
public agency makes the electronic notice delivery option available to 
parents, and we believe that this is a matter that is best left to 
States and LEAs that choose to use the electronic communication option.
    In addition, States that wish to utilize electronic or digital 
signatures for consent may do so if they choose. Consent under Sec.  
300.9(b) requires a parent to understand and agree in writing to the 
carrying out of the activity for which the parent's consent is sought. 
Therefore, States that permit the use of electronic or digital 
signatures for parental consent would need to take the necessary steps 
to ensure that there are appropriate safeguards to protect the 
integrity of the process.
    Changes: None.
Parental Consent for Initial Evaluation (Sec.  300.300(a))
    Comment: One commenter recommended that the regulations require a 
public agency to conduct the following activities to obtain parental 
consent for an initial evaluation: identify the child's parents and 
their address and phone number; contact social service providers for 
children who are wards of the State; provide parents with copies of the 
Act; and inform parents of the consequences of withholding consent.
    Discussion: The regulations already provide sufficient safeguards 
regarding consent, and we believe that the changes requested would be 
unduly burdensome. As a matter of practice, public agencies begin the 
process of obtaining parental consent by identifying the parent and 
contacting the parent by phone or through written correspondence, or 
speaking to the parent in parent-teacher conferences.
    We do not believe it is necessary to regulate to require public 
agencies to contact social service agencies to obtain consent for 
children who are wards of the State because it may not always be 
necessary or appropriate, for example, when a child who is a ward of 
the State has a foster parent who can act as a parent, consistent with 
Sec.  300.30(a)(2). Additionally, section 614(a)(1)(D)(iii)(I) of the 
Act provides that the public agency must make reasonable efforts to 
obtain informed parental consent for children who are wards of the 
State and

[[Page 46630]]

not residing with the parent. Public agencies are in the best position 
to determine, on a case-by-case basis, when it is necessary to contact 
social service providers to assist in obtaining parental consent for 
children who are wards of the State.
    We also do not believe that additional regulations are necessary to 
require public agencies to inform parents of the consequences of 
withholding consent for an initial evaluation or to provide parents 
with copies of the Act. Section 300.503, consistent with section 
615(c)(1) of the Act, already requires that prior written notice be 
provided to parents before an initial evaluation, which will explain, 
among other things, why the agency is proposing to conduct the 
evaluation; a description of each evaluation procedure, assessment, 
record, or report the agency used as a basis for proposing to conduct 
the evaluation; and sources for the parent to contact to obtain 
assistance in understanding the provisions under the Act. Additionally, 
Sec.  300.504(a)(1), consistent with section 615(d)(1)(A)(i) of the 
Act, requires the public agency to provide a copy of the procedural 
safeguards to parents upon initial referral for an evaluation, which 
provides information about parents' rights under the Act. Although we 
do not believe the recommended requirements should be added to the 
regulations, we will add the cross-references to the consent 
requirements in Sec.  300.9, and the requirements for prior written 
notice and the procedural safeguards notice in Sec. Sec.  300.503 and 
300.504, respectively, to Sec.  300.300(a).
    Changes: We have added cross-references to Sec. Sec.  300.9, 
300.503, and 300.504 in Sec.  300.300(a).
    Comment: One commenter recommended revising Sec.  300.300(a)(1)(ii) 
and using the statutory language in section 614(a)(1)(D)(i) of the Act 
to require that parental consent for evaluation may not be construed as 
consent for placement for receipt of special education and related 
services.
    Discussion: We believe it is appropriate to use the phrase, 
``initial provision of services'' in Sec.  300.300(a)(1)(ii), rather 
than the statutory phrase ``consent for placement for receipt of 
special education and related services,'' in section 614(a)(1)(D)(i) of 
the Act to clarify that consent does not need to be sought every time a 
particular service is provided to the child. In addition, the 
distinction between consent for an initial evaluation and consent for 
initial services is more clearly conveyed in Sec.  300.300(a)(1)(ii) 
than in the statutory language, and is consistent with the Department's 
longstanding position that ``placement'' refers to the provision of 
special education services, rather than a specific place, such as a 
specific classroom or specific school. We, therefore, decline to change 
the regulation, as requested by the commenter.
    Changes: None.
    Comment: One commenter recommended that the regulations clarify 
whether the reference to ``parent'' in Sec.  300.300(a)(2) means 
``biological or adoptive parent'' or anyone who meets the definition of 
parent in Sec.  300.30.
    Discussion: Section 300.300(a)(2) applies to circumstances in which 
the child is a ward of the State and is not residing with the child's 
parents, and requires the public agency to make reasonable efforts to 
obtain parental consent from the parent for an initial evaluation. The 
reference to ``parent,'' in this context, refers to anyone who meets 
the definition of parent in Sec.  300.30, consistent with section 
614(a)(1)(D)(iii) of the Act.
    Changes: None.
    Comment: One commenter requested clarification on the interplay 
between new Sec.  300.300(a)(2) (proposed Sec.  300.300(a)(2)(ii)), 
regarding circumstances when the public agency is not required to 
obtain informed parental consent for an initial evaluation of a child 
who is a ward of the State, and the requirements in Sec.  300.519(c), 
which require that a surrogate parent be appointed for a child who is a 
ward of the State.
    Discussion: New Sec.  300.300(a)(2) (proposed Sec.  
300.300(a)(2)(ii)), consistent with section 614(a)(1)(D)(iii)(II) of 
the Act, creates an exception to the parental consent requirements for 
initial evaluations for a child who is a ward of the State who is not 
residing with the child's parent if the public agency has made 
reasonable efforts to obtain the parent's consent, but is unable to 
discover the whereabouts of the parent, the rights of the parent of the 
child have been terminated under State law, or the rights of the parent 
to make educational decisions have been subrogated by a judge under 
State law and consent for the initial evaluation has been given by an 
individual appointed by the judge to represent the child. New Sec.  
300.300(a)(2) (proposed Sec.  300.300(a)(2)(ii)) permits the public 
agency to proceed with the child's initial evaluation without first 
obtaining the requisite parental consent only in the circumstances 
detailed in Sec.  300.300(a)(2). Therefore, when one or more of the 
circumstances in Sec.  300.300(a)(2) are met and a surrogate has not 
yet been appointed, the public agency need not postpone the child's 
evaluation to await the appointment of a surrogate. This is appropriate 
because in situations involving requests for initial evaluations, in 
most cases a surrogate parent has not yet been appointed and delaying 
an initial evaluation until after a surrogate is appointed and has 
given consent may not be in the best interests of the child. In 
contrast, in most situations involving consent for reevaluation, a 
surrogate parent should already have been appointed under Sec.  300.519 
if no parent can be identified, the public agency has been unable to 
locate a parent, the child is a ward of the State or the child is an 
unaccompanied homeless youth. Therefore, we do not think it is 
appropriate to apply the provisions in Sec.  300.300(a)(2) to 
reevaluation situations.
    Nothing in this section is intended to relieve a public agency of 
its obligation to ensure that the rights of a child who is a ward of 
the State are protected through the appointment of a surrogate parent 
in accordance with the procedures in Sec.  300.519(b) through (h). Once 
a surrogate parent is appointed in accordance with the procedures in 
Sec.  300.519(b) through (h), that person assumes the responsibilities 
of a parent under the Act, and the public agency must seek consent from 
that individual.
    Moreover, if a child has a foster parent who can act as a parent, 
as defined in Sec.  300.30(a)(2), or a person such as a grandparent or 
step-parent who is legally responsible for the child's welfare, and 
that person's whereabouts are known or the person can be located after 
reasonable efforts by the public agency, parental consent would be 
required for the initial evaluation.
    We believe that the phrase ``except as provided in paragraph (a)(2) 
of this section (regarding consent for wards of the State)'' in 
proposed Sec.  300.300(a)(1)(i) may incorrectly convey that a public 
agency is not required to make reasonable efforts to obtain informed 
consent from the parent of a child who is a ward of the State, or from 
a surrogate parent, foster parent, or other person meeting the 
definition of a parent in Sec.  300.30(a). Therefore, we will remove 
the phrase. To clarify that the provisions in Sec.  300.300(a)(2) apply 
only to initial evaluations, and not reevaluations, we will modify both 
Sec. Sec.  300.300(a)(2) and (c)(1).
    Changes: We have removed the phrase ``except as provided in 
paragraph (a)(2) of this section (regarding consent for wards of the 
State)'' in Sec.  300.300(a)(1)(i), for clarity. We have also added 
introductory language to

[[Page 46631]]

Sec.  300.300(a)(2) to specify that it applies only to initial 
evaluations, and we have changed the cross-reference in Sec.  
300.300(c)(1) to refer to Sec.  300.300(a)(1).
    Comment: One commenter recommended that the regulations specify the 
minimum steps that public agencies must take to obtain consent for 
initial evaluations from parents of children who are wards of the 
State. Another commenter recommended that the regulations define 
``reasonable efforts,'' as used in new Sec.  300.300(a)(1)(iii) 
(proposed Sec.  300.300(a)(2)(i)). One commenter recommended requiring 
LEAs to maintain documentation of their efforts to obtain parental 
consent for initial evaluations, including attempts to obtain consent 
by telephone calls, visits to the parent's home, and correspondence in 
the parent's native language. Several commenters requested that the 
requirements in current Sec.  300.345(d) be included in new Sec.  
300.300(a)(2)(i) (proposed Sec.  300.300(a)(2)(ii)(A)). Current Sec.  
300.345(d) requires a public agency to document the specific steps it 
has taken to arrange a mutually convenient time and place for an IEP 
Team meeting (e.g., detailed records of telephone calls, any 
correspondence sent to the parents, visits made to the parent's home or 
place of employment) and it is cross-referenced in current Sec.  
300.505(c)(2) to identify documentation of the reasonable measures that 
an LEA took to obtain consent for a reevaluation.
    Discussion: We believe it is important to emphasize that a public 
agency must make reasonable efforts to obtain informed consent from the 
parent for an initial evaluation to determine whether the child is a 
child with a disability. This includes the parent of a child who is a 
ward of the State. Therefore, we will add a new paragraph (a)(1)(iii) 
to Sec.  300.300 to make clear that a public agency must make 
reasonable efforts to obtain informed parental consent whenever a 
public agency seeks to conduct an initial evaluation of a child to 
determine whether the child is a child with a disability. This 
requirement applies to all children including children who are wards of 
the State. With the addition of this new paragraph, the requirement for 
public agencies to make reasonable efforts to obtain informed consent 
from the parent for an initial evaluation for children who are wards of 
the State in Sec.  300.300(a)(2)(i) is no longer necessary and will be 
removed.
    We also agree with the commenters that a public agency should 
document and make the same reasonable efforts to obtain consent for an 
initial evaluation from a parent, including a parent of a child who is 
a ward of the State, that are required when a public agency attempts to 
arrange a mutually convenient time and place for an IEP Team meeting 
(e.g., detailed records of telephone calls, any correspondence sent to 
the parents, visits made to the parent's home or place of employment), 
and will add a new paragraph (d)(5) to make this clear. We recognize 
that the statute uses both ``reasonable measures'' and ``reasonable 
efforts'' when referring to a public agency's responsibility to obtain 
parental consent for an evaluation, initial services, and a 
reevaluation. We believe these two phrases, when used in this context, 
have the same meaning and, therefore, have used ``reasonable efforts'' 
throughout the regulations related to parental consent for consistency.
    Changes: We have added a new paragraph (a)(1)(iii) to Sec.  300.300 
to require a public agency to make reasonable efforts to obtain 
informed parental consent for an initial evaluation. We will remove 
Sec.  300.300(a)(2)(i) because it is redundant with the new paragraph. 
Section 300.300(a)(2) has been reformatted consistent with the removal 
of paragraph (a)(2)(i). We also have added a new paragraph (d)(5) to 
Sec.  300.300 to require a public agency to document its attempts to 
obtain parental consent using the procedures in Sec.  300.322(d).
    Comment: A few commenters asked whether a public agency must obtain 
consent for an initial evaluation from the biological or adoptive 
parent of the child when there is another person who meets the 
definition of parent in Sec.  300.30. Another commenter recommended the 
regulations clarify whether a public agency must seek informed consent 
for an initial evaluation from a biological or adoptive parent when a 
surrogate parent has already been appointed.
    Discussion: Section 300.30(b)(1) provides that, when more than one 
party is qualified to act as a parent, the biological or adoptive 
parent, when attempting to act as the parent under the Act, must be 
presumed to be the parent, unless the biological or adoptive parent 
does not have legal authority to make educational decisions for the 
child.
    If a surrogate parent already has been appointed because the public 
agency, after reasonable efforts, could not locate a parent, the public 
agency would not have to again attempt to contact other individuals 
meeting the definition of parent in Sec.  300.30 to seek consent.
    Changes: None.
    Comment: One commenter recommended that the regulations clarify 
whether the qualifications of a judge-appointed surrogate parent in 
Sec.  300.519(c) would apply to new Sec.  300.300(a)(2)(iii) (proposed 
Sec.  300.300(a)(2)(ii)(C)), regarding consent for an initial 
evaluation for a child who is a ward of the State.
    Discussion: Section 614(a)(1)(D)(iii)(II)(cc) of the Act, which is 
the basis for new Sec.  300.300(a)(2)(iii) (proposed Sec.  
300.300(a)(2)(ii)(C)), provides that the public agency is not required 
to obtain informed consent from the parent for an initial evaluation of 
a child who is a ward of the State and is not living with the child's 
parent if the rights of the parent to make educational decisions have 
been subrogated by a judge in accordance with State law and consent for 
an initial evaluation has been given by an individual appointed by the 
judge to represent the child. This is a special situation, limited only 
to children who are wards of the State not living with a parent and 
limited only to the situation of seeking consent for an initial 
evaluation. A person appointed under this provision is not a surrogate 
parent as that term is used in these regulations. The requirements of 
Sec.  300.519(c) do not apply to persons authorized to provide consent 
for initial evaluations under this provision.
    It is noteworthy that the provision in new Sec.  300.300(a)(2)(iii) 
(proposed Sec.  300.300(a)(2)(ii)(C)) is only a limited exception to 
the requirement to obtain informed parental consent for an initial 
evaluation. Most children will not have a surrogate parent already 
appointed at this stage of their involvement with services under the 
Act. However, if a child has a surrogate parent appointed under Sec.  
300.519(c), and the rights of that person to make educational decisions 
for the child have not been subrogated by a judge under State law, the 
public agency would have to seek informed parental consent from that 
person.
    Changes: None.
    Comment: One commenter recommended revising Sec.  300.300(a)(3) to 
prohibit a public agency from pursuing an initial evaluation without 
parental consent. Another commenter recommended requiring a public 
agency to use the due process procedures to conduct an initial 
evaluation if the parent does not provide consent and the public agency 
believes that the child would not otherwise receive needed services. A 
few commenters stated that Sec.  300.300(a)(3) is inconsistent with 
statutory language and opposed language stating that the public agency 
may, but is not required to, pursue the

[[Page 46632]]

initial evaluation of a child whose parents have refused to consent or 
failed to respond to a request for consent.
    Discussion: Section 300.300(a)(3) is consistent with section 
614(a)(1)(D)(ii) of the Act, which states that a public agency may 
pursue the initial evaluation of a child using the procedural 
safeguards if a parent does not provide consent or fails to respond to 
a request to provide consent for an initial evaluation. Consistent with 
the Department's position that public agencies should use their consent 
override procedures only in rare circumstances, Sec.  300.300(a)(3) 
clarifies that a public agency is not required to pursue an initial 
evaluation of a child suspected of having a disability if the parent 
does not provide consent for the initial evaluation. State and local 
educational agency authorities are in the best position to determine 
whether, in a particular case, an initial evaluation should be pursued.
    Changes: None.
    Comment: A few commenters recommended clarifying the parental 
consent requirements for an initial evaluation. Many commenters 
recommended that LEAs maintain documentation that the parent has been 
fully informed and understands the nature and scope of the evaluation. 
One commenter recommended that the regulations require that informed 
parental consent for an initial evaluation be documented in writing.
    Discussion: Section 300.300(a)(1)(i), consistent with section 
614(a)(1)(D)(i)(I) of the Act, is clear that the public agency 
proposing to conduct an initial evaluation to determine if a child 
qualifies as a child with a disability under Sec.  300.8 must obtain 
consent from the parent of the child before conducting the evaluation. 
Consent, as defined in Sec.  300.9, means that the parent has been 
fully informed in his or her native language, or other mode of 
communication, and understands and agrees in writing to the initial 
evaluation. The methods by which a public agency seeks to obtain 
parental consent for an initial evaluation (beyond the requirement that 
the public agency use the parent's native language or mode of 
communication) and how a public agency documents its efforts to obtain 
the parent's written consent are appropriately left to the discretion 
of SEAs and LEAs.
    Changes: None.
    Comment: A few commenters recommended that the regulations include 
language clarifying that a public agency is not in violation of the 
FAPE requirements if the public agency does not pursue an initial 
evaluation when the parent refuses to consent or fails to respond to a 
request for consent. One commenter recommended adding language to the 
regulations to clarify that if a parent refuses to consent to an 
initial evaluation, the child would not be considered to be a child 
with a disability.
    Discussion: While we agree that a public agency would not be in 
violation of the FAPE requirements for failing to pursue an initial 
evaluation through due process, we do not believe that a change to the 
regulations is necessary. The FAPE requirements in Sec. Sec.  300.101 
through 300.112, consistent with section 612(a) of the Act, apply only 
to a child with a disability, as defined in Sec.  300.8 and section 
602(3) of the Act. A child would not be considered a child with a 
disability under the Act if the child has not been evaluated in 
accordance with Sec. Sec.  300.301 through 300.311 and determined to 
have one of the disabilities in Sec.  300.8(a), and because of that 
disability, needs special education and related services.
    Further, Sec.  300.534(c)(1), consistent with section 615(k)(5)(C) 
of the Act, provides that a public agency would not be deemed to have 
knowledge that a child is a child with a disability, for disciplinary 
purposes, if a parent has not allowed the child to be evaluated or 
refuses services under the Act.
    Changes: None.
    Comment: A few commenters recommended that the regulations clarify 
that the public agency is not in violation of the child find 
requirements if the public agency does not pursue an initial evaluation 
when the parent refuses to consent or fails to respond to a request for 
consent.
    Discussion: We agree that States and LEAs should not be considered 
to be in violation of their obligation to locate, identify, and 
evaluate children suspected of being children with disabilities under 
Sec.  300.111 and section 612(a)(3) of the Act if they decline to 
pursue an evaluation (or reevaluation) to which a parent has refused or 
failed to consent. We will add language to the regulations to make this 
clear.
    Changes: We have added language to Sec.  300.300(a)(3) and (c)(1) 
to clarify that a State or public agency does not violate the 
requirements of Sec.  300.111 and Sec. Sec.  300.301 through 300.311 if 
it declines to pursue an evaluation or reevaluation to which a parent 
has refused or failed to consent.
    Comment: A few commenters recommended that the regulations define 
``fails to respond'' as used in Sec.  300.300(a)(3).
    Discussion: Section 300.300(a)(3), consistent with section 
614(a)(1)(D)(ii)(I) of the Act, states that if a parent of a child 
enrolled in public school, or seeking to be enrolled in public school, 
does not provide consent for an initial evaluation, or the parent 
``fails to respond'' to a request to provide consent, the public agency 
may, but is not required to, pursue the initial evaluation of the child 
by utilizing the procedural safeguards, if appropriate, except to the 
extent inconsistent with State law relating to such parental consent. 
The meaning of ``fails to respond,'' in this context, is generally 
understood to mean that, in spite of a public agency's efforts to 
obtain consent for an initial evaluation, the parent has not indicated 
whether the parent consents or refuses consent to the evaluation. We 
believe the meaning is clear in the regulations and, therefore, decline 
to define the phrase in these regulations.
    Changes: None.
    Comment: One commenter recommended that the regulations include 
language to require a public agency to provide the following 
information (in the parent's native language) to a parent who refuses 
consent or fails to respond to a request for consent for an initial 
evaluation: The reasons why the public agency believes the child may be 
eligible for special education; confirmation that the requested 
evaluation and any subsequent special education services will be 
provided at no cost and scheduled in cooperation with parents with 
transportation provided; The nature of the evaluations and credentials 
of evaluators; the types of special education services that the child 
could receive if eligible; and the risks of delaying an evaluation.
    Discussion: The prior written notice requirements in Sec.  300.503, 
consistent with section 615(c)(1) of the Act, address many of the 
concerns raised by the commenter. Consistent with Sec.  300.503(b) and 
(c), prior notice must be given to the parents when a public agency 
proposes to evaluate a child and would explain why the public agency 
believes the child needs an evaluation to determine whether the child 
is a child with a disability under the Act; describe each evaluation 
procedure, assessment, record, or report the agency used as a basis for 
proposing that the child needs an evaluation; explain that the parents 
have protection under the Act's procedural safeguards; provide sources 
for parents to contact to obtain assistance in understanding the 
provisions of the Act; and describe other factors that are relevant to 
the agency's proposal to conduct the evaluation of the child.

[[Page 46633]]

    In addition to the prior written notice, Sec.  300.504(a)(1), 
consistent with section 615(d)(1)(A)(i) of the Act, requires that a 
copy of the procedural safeguards notice be given to parents upon an 
initial referral or parental request for an evaluation. Consistent with 
Sec.  300.503(c) and Sec.  300.504(d), the prior written notice and the 
procedural safeguards notice, respectively, must be written in language 
understandable to the general public and be provided in the native 
language of the parent or other mode of communication used by the 
parent, unless it is clearly not feasible to do so.
    As a matter of practice, public agencies provide parents with 
general information about the special education and related services 
that are available to eligible children with disabilities and inform 
the parent that the public agency's evaluation is provided at no cost. 
We believe that this information, along with the information provided 
in the prior written notice and procedural safeguards notice, will help 
a parent determine whether there are any risks of delaying an 
evaluation. Therefore, we do not believe additional regulations are 
necessary.
    With regard to information regarding an evaluator's credentials, we 
do not believe it is necessary to require public agencies to provide 
this information to parents because Sec.  300.304(c)(1)(v) and section 
614(b)(3)(A)(iv) of the Act require the public agency to ensure that 
the evaluation is conducted by trained and knowledgeable personnel.
    If transportation to an evaluation outside the school environment 
is necessary, the public agency would have to provide it, as a part of 
its obligation to ensure that all eligible children are located, 
identified, and evaluated. However, we do not believe that the parents 
need to be notified of this fact because, in most cases, children can 
be evaluated at school during the school day and there is no 
requirement that a parent be present during the evaluation. Thus, 
requiring that all parents be notified about transportation to 
evaluations would be unnecessarily burdensome.
    Changes: None.
Parental Consent for Services (Sec.  300.300(b))
    Comment: A few commenters requested that the Department address 
situations in which a child is receiving special education services and 
a parent wants to withdraw consent or refuse services because the 
parent believes the child no longer needs special education services. A 
few commenters stated that public agencies should not be allowed to use 
the procedural safeguards to continue to provide special education and 
related services to a child whose parents withdraw consent for the 
continued provision of special education and related services.
    Discussion: We are considering the question of whether parents who 
previously consented to the initiation of special education services 
should have the right to subsequently remove their child from special 
education services. We anticipate publishing a notice of proposed 
rulemaking in the near future seeking public comment on this issue.
    Changes: None.
    Comment: One commenter recommended changing the regulations to 
allow the public agency to provide services in anticipation of 
receiving parental consent when the public agency initiates a due 
process hearing to obtain parental consent for initial services.
    Discussion: To implement the change requested by the commenter 
would be inconsistent with the Act. Section 614(a)(1)(D)(i)(II) of the 
Act requires a public agency to obtain informed parental consent before 
providing initial special education and related services to a child. In 
addition, a public agency may not initiate a due process hearing to 
provide special education and related services to a child when a parent 
refuses to consent to initial services, consistent with section 
614(a)(1)(D)(ii)(II) of the Act. A child whose parent has refused 
consent for initial services would not be provided special education 
and related services and would continue to receive general education 
services.
    Changes: None.
    Comment: A few commenters requested that the regulations clarify 
the meaning of ``initial provision of services'' as used in Sec.  
300.300(b).
    Discussion: We believe Sec.  300.300(b) is clear that the ``initial 
provision of services'' means the first time a parent is offered 
special education and related services after the child has been 
evaluated in accordance with the procedures in Sec. Sec.  300.301 
through 300.311, and has been determined to be a child with a 
disability, as defined in Sec.  300.8.
    Changes: None.
    Comment: One commenter requested that the regulations permit 
mediation when a parent of a child refuses to consent to the provision 
of special education and related services. A few commenters recommended 
revising the regulations to require a public agency to use the due 
process procedures, or other alternative dispute resolution procedures, 
if a parent refuses to consent to initial services.
    Discussion: Section 300.300(b)(2), consistent with section 
614(a)(1)(D)(ii)(II) of the Act, is clear that if a parent fails to 
respond or refuses to consent to initial services, the public agency 
may not use the mediation procedures in Sec.  300.506 or the due 
process procedures in Sec. Sec.  300.507 through 300.516 in order to 
obtain agreement or a ruling that the services may be provided to a 
child.
    Changes: None.
    Comment: One commenter stated that additional documentation is 
necessary if a parent does not provide consent for initial services and 
suggested adding language to the regulations to require public agencies 
to document the steps they have taken to obtain parental consent for 
initial services and to maintain them in the child's permanent file. 
Another commenter recommended requiring that the parent's refusal to 
consent for initial services occur during a properly convened IEP Team 
meeting. The commenter also suggested requiring that the documentation 
of a parent's refusal to provide consent include evidence that all 
options waived by the parent have been explained, that the parent has 
refused services, and the reasons for the parent's refusal.
    Discussion: We believe that a public agency must make reasonable 
efforts to obtain informed consent from the parent for the initial 
provision of special education and related services to the child and 
will make this clear in Sec.  300.300(b). We noted in our discussion 
regarding the reasonable efforts that a public agency must make to 
obtain parental consent for an initial evaluation to determine whether 
the child is a child with a disability, that we added a new paragraph 
(d)(5) to Sec.  300.300 that provides that to meet the reasonable 
efforts requirement, a public agency must document its attempts to 
obtain consent using the procedures in Sec.  300.322(d). We believe a 
public agency should make these same reasonable efforts to obtain 
parental consent for initial services, and will include this in new 
Sec.  300.300(d)(5).
    We do not believe it is necessary or appropriate to require a 
public agency to maintain additional documentation, beyond that 
required in new Sec.  300.300(d)(5), of a parent's refusal to provide 
consent for initial services or to prescribe where this documentation 
must be obtained or maintained. Public agencies understand the 
importance of properly documenting a parent's refusal to consent to the 
initial provision of special education and related services and are in 
the best position to determine any additional documentation that is

[[Page 46634]]

necessary and where to obtain and maintain such documentation.
    Changes: We have added a new paragraph (b)(2) to Sec.  300.300 to 
clarify that the public agency must make reasonable efforts to obtain 
informed consent from the parent for the initial provision of special 
education and related services to the child. Subsequent paragraphs have 
been renumbered accordingly. We also have included a reference to new 
Sec.  300.300(b)(2) in new Sec.  300.300(d)(5) that requires a public 
agency to document its attempts to obtain consent using the procedures 
in Sec.  300.322(d).
    Comment: One commenter recommended adding language to clarify that 
if a parent does not consent to initial services, the child would be 
considered a part of the general education enrollment and subject to 
the same disciplinary provisions as nondisabled children.
    Discussion: The language requested by the commenter is not 
necessary because section 615(k)(5)(C) of the Act already provides for 
situations in which a parent refuses consent for initial services and 
the child subsequently engages in behavior that violates a code of 
student conduct. Section 300.534(c)(1), consistent with section 
615(k)(5)(C) of the Act, provides that a public agency would not be 
deemed to have knowledge that a child is a child with a disability if 
the parent of the child has not allowed an evaluation of the child 
pursuant to Sec. Sec.  300.301 through 300.311, or has refused services 
under this part. Therefore, such a child would not be able to assert 
any of the protections provided to children with disabilities under the 
Act, and would be subject to the same disciplinary procedures as any 
other child.
    Changes: None.
    Comment: A few commenters recommended requiring a public agency to 
refer parents who do not provide consent for initial services to the 
State's PTI center so that the parents can be advised of the benefits 
of special education and their rights and responsibilities under the 
Act.
    Discussion: We do not believe it would be appropriate to require a 
public agency to refer parents to a particular agency or program. Such 
matters are best left to States and LEAs to decide and should not be 
included in the regulations.
    Changes: None.
    Comment: One commenter recommended that the regulations require a 
public agency to report a parent for suspected child abuse or neglect 
to the appropriate agency if the public agency believes that the 
parent's failure or refusal to consent to initial services meets the 
definition of child abuse or neglect under the State's mandatory 
reporting law.
    Discussion: It is not necessary to include the requirement 
recommended by the commenter in these regulations, as the issue would 
already be addressed by State law, if under State law a parent's 
failure to consent to initial services under the Act was considered 
child abuse or neglect.
    Changes: None.
    Comment: Numerous commenters expressed concern about new Sec.  
300.300(b)(4)(ii) (proposed Sec.  300.300(b)(3)(ii)), which provides 
that if a parent fails to consent for initial services or refuses to 
respond to a request for consent, the public agency is not required to 
convene an IEP Team meeting or develop an IEP for the child. A few 
commenters stated that this should be permitted only when a parent 
refuses services, but not when a parent fails to respond to a request 
for consent for initial services. A few commenters stated that the 
regulations should be revised to clarify that this applies only to 
subsequent IEP Team meetings, not the initial IEP Team meeting. One 
commenter recommended revising the regulations to require an IEP Team 
meeting to be held and an IEP developed to provide a basis for informed 
consent.
    Discussion: New 300.300(b)(4)(ii) (proposed Sec.  
300.300(b)(3)(ii)) follows the specific language in section 
614(a)(1)(D)(ii)(III)(bb) of the Act and reflects the new provision in 
the Act that relieves public agencies of any potential liability for 
failure to convene an IEP Team meeting or develop an IEP for a child 
whose parents have refused consent or failed to respond to a request 
for consent to the initial provision of special education and related 
services. It does not, however, prevent a public agency from convening 
an IEP Team meeting and developing an IEP for a child as a means of 
informing the parent about the services that would be provided with the 
parent's consent.
    Changes: None.
    Comment: A few commenters questioned how a parent could be 
adequately informed of the services the parent is refusing if the 
public agency is not required to develop an IEP when the parent refuses 
to consent to the initial provision of special education and related 
services.
    Discussion: We understand the commenters' concern that a parent of 
a child with a disability who refuses to consent to the provision of 
special education and related services may not fully understand the 
extent of the special education and related services their child would 
receive without the development of an IEP for their child. However, we 
do not view the consent provisions of the Act as creating the right of 
parents to consent to each specific special education and related 
service that their child receives. Instead, we believe that parents 
have the right to consent to the initial provision of special education 
and related services. ``Fully informed,'' in this context, means that a 
parent has been given an explanation of what special education and 
related services are and the types of services that might be found to 
be needed for their child, rather than the exact program of services 
that would be included in an IEP.
    Changes: None.
    Comment: One commenter stated that the regulations should include 
sanctions for parents who repeatedly fail to respond to requests for 
consent from public agencies, such as paying the costs incurred by 
agencies attempting to obtain consent.
    Discussion: The Act does not authorize sanctions against parents 
who fail to respond to requests for consent.
    Changes: None.
Parental Consent for Reevaluations (Sec.  300.300(c))
    Comment: Several commenters recommended allowing public agencies to 
use the due process procedures to override a parent's refusal to 
consent to a reevaluation.
    Discussion: Override of parental refusal to consent to a 
reevaluation is already addressed in the regulations. Section 
300.300(c) states that each public agency must obtain informed parental 
consent in accordance with Sec.  300.300(a)(1) prior to conducting any 
reevaluation of a child with a disability. Section 300.300(a)(3) allows 
a public agency to override parental refusal to consent to an initial 
evaluation by utilizing the mediation procedures under Sec.  300.506 or 
the due process procedures under Sec. Sec.  300.507 through 300.516. 
The cross-reference in Sec.  300.300(c)(1)(i) to the provision in Sec.  
300.300(a)(1) provides the basis for allowing a public agency to 
override the parent's refusal of consent to a reevaluation. However, we 
believe it is important to state this more directly and will, 
therefore, add language to Sec.  300.300(c)(1) to clarify that if a 
parent refuses to consent to a reevaluation, the public agency may, but 
is not required to, pursue the reevaluation by using the procedural 
safeguards in subpart E of this part.
    Changes: We have restructured Sec.  300.300(c)(1) and added a new

[[Page 46635]]

Sec.  300.300(c)(1)(ii) to clarify that a public agency may, but is not 
required to, pursue a reevaluation using the procedural safeguards.
    Comment: One commenter requested that the regulations clarify a 
public agency's responsibilities for a reevaluation if the agency has 
taken reasonable measures to obtain consent and the parent has failed 
to respond.
    Discussion: We do not believe that further clarification in the 
regulations is necessary. Section 300.300(c)(2), consistent with 
section 614(c)(3) of the Act, is clear that a public agency may conduct 
a reevaluation of a child with a disability, if the public agency can 
demonstrate that it has made reasonable efforts to obtain such consent 
and the child's parent has failed to respond to a request for consent.
    Changes: None.
    Comment: One commenter recommended that the regulations require a 
public agency to obtain parental consent for any tests needed for a 
reevaluation that were not used for the initial evaluation or previous 
reevaluations.
    Discussion: We do not agree that a change should be made. Section 
614(c)(3) of the Act, which is incorporated in Sec.  300.300(c), 
already requires a public agency to obtain parental consent before 
conducting any tests needed for a reevaluation, regardless of whether 
the tests differ from tests used in previous evaluations of the child.
    Changes: None.
    Comment: Many commenters recommended retaining current Sec.  
300.505(c)(2), which requires a public agency to document the specific 
reasonable measures it has taken to obtain parental consent for a 
reevaluation, including detailed records of telephone calls made or 
attempted and the results of those calls; copies of any correspondence 
sent to the parents and any responses received; and detailed records of 
visits made to the parents' home or place of employment and the results 
of those visits. One commenter suggested that if the requirements in 
current Sec.  300.505(c)(2) were not retained, the regulations should 
define reasonable measures as at least three good-faith attempts to 
contact a parent. Many commenters stated that current Sec.  
300.505(c)(2) must be retained because it is protected by section 
607(b) of the Act, which provides that the Secretary may not publish 
final regulations that would procedurally or substantively lessen the 
protections provided to children with disabilities in the regulations 
that were in effect on July 20, 1983.
    Discussion: We agree that the requirements in current Sec.  
300.505(c)(2) should be retained. We noted in our discussions regarding 
the reasonable efforts that a public agency must make to obtain 
parental consent for an initial evaluation and the initial provision of 
services, that we added a new paragraph (d)(5) to Sec.  300.300 that 
provides that to meet the reasonable efforts requirement, a public 
agency must document its attempts to obtain consent using the 
procedures in Sec.  300.322(d). These are the same procedures in 
current Sec.  300.505(c)(2). Therefore, we will include a reference to 
Sec.  300.300(c)(2)(i) in new Sec.  300.300(d)(5).
    Changes: We included a reference to Sec.  300.300(c)(2)(i) in new 
Sec.  300.300(d)(5).
Other Consent Requirements (Sec.  300.300(d))
    Comment: Many commenters recommended that the regulations include 
language clarifying that a public agency is not authorized to override 
the lack of parental consent for an initial evaluation for children who 
are home schooled or placed in a private school by the parents at their 
own expense. One commenter recommended removing the phrase ``public 
school or seeking to enroll in public school'' in Sec.  300.300(a)(3) 
to permit a public agency to override lack of parental consent for 
children who are home schooled or placed in a private school by parents 
at their own expense.
    Discussion: We agree with the commenters who recommended that, for 
children who are home schooled or placed in a private school by their 
parents at their own expense, consent override should not be permitted. 
We will add a new paragraph (4) to Sec.  300.300(d) to make this clear.
    There are compelling policy reasons why the Act's consent override 
procedures should be limited to children who are enrolled, or who are 
seeking to enroll, in public school. Because the school district has an 
ongoing obligation to educate a public school child it suspects has a 
disability, it is reasonable for a school district to provide the 
parents with as much information as possible about their child's 
educational needs in order to encourage them to agree to the provision 
of special education services to meet those needs, even though the 
parent is free, ultimately, to reject those services. The school 
district is accountable for the educational achievement of all of its 
children, regardless of whether parents refuse the provision of 
educationally appropriate services. In addition, children who do not 
receive appropriate educational services may develop behavioral 
problems that have a negative impact on the learning environment for 
other children.
    By contrast, once parents opt out of the public school system, 
States and school districts do not have the same interest in requiring 
parents to agree to the evaluation of their children. In such cases, it 
would be overly intrusive for the school district to insist on an 
evaluation over a parent's objection. The Act gives school districts no 
regulatory authority over private schools. Moreover, the Act does not 
require school districts to provide FAPE to children who are home 
schooled or enrolled in private schools by their parents.
    Public agencies do have an obligation to actively seek parental 
consent to evaluate children attending private schools (including 
children who are home schooled, if a home school is considered a 
private school under State law) who are suspected of being children 
with disabilities under the Act, in order to properly identify the 
number of private school children with disabilities and consider those 
children as eligible for equitable services under Sec. Sec.  300.132 
through 300.144. However, this obligation does not extend to overriding 
refusal of parental consent to evaluate parentally-placed private 
school children.
    Section 300.300(a)(3) provides that a public agency may override 
parental consent for an initial evaluation only for children who are 
enrolled in public school or seeking to be enrolled in public school, 
so we are not making the suggested change in Sec.  300.300(a)(3).
    Changes: We have added a new paragraph (4) to Sec.  300.300(d) to 
clarify that consent override is not permitted for children who are 
home schooled or placed in private schools by their parents.

Evaluations and Reevaluations

Initial Evaluations (Sec.  300.301)
Request for Initial Evaluation (Sec.  300.301(b))
    Comment: Several commenters recommended that teachers and related 
services providers be included as individuals who can refer a child for 
an initial evaluation. A few commenters requested clarification as to 
whether States can authorize other individuals who are acting on behalf 
of a public agency (e.g., family court, probation officers, staff from 
other public agencies) to refer a child for an initial evaluation, and 
whether individuals responsible for protecting the welfare of a child 
who are not acting on behalf of an SEA or LEA, such as physicians and

[[Page 46636]]

social workers, can refer a child for an initial evaluation.
    Discussion: Section 614 (a)(1)(A) of the Act provides that an SEA, 
other State agency, or LEA shall conduct a full and individual 
evaluation of a child before the provision of special education and 
related services. In Sec.  300.301(a), we interpret this language as 
requiring public agencies, as that term is defined in Sec.  300.33, to 
conduct evaluations, because those are the only agencies in the State 
responsible for providing FAPE to eligible children. The same language 
is used in section 614(a)(1)(B) of the Act to describe the agencies 
that may initiate a request for an initial evaluation to determine if a 
child is a child with a disability. We similarly interpret this 
language to be referring to the entities that are public agencies under 
Sec.  300.33. Therefore, Sec.  300.301(b) states that either a parent 
or a public agency may initiate a request for an initial evaluation. 
The language does not include employees of SEAs or LEAs (e.g., teachers 
and related services providers), unless they are acting for the SEA or 
LEA, or of other State agencies (e.g., probation officers, social 
workers, or staff from State agencies that are not public agencies as 
defined in Sec.  300.33).
    The requirements in Sec.  300.301(b) pertain to the initiation of 
an evaluation under Sec. Sec.  300.301 through 300.305 and should not 
be confused with the State's child find responsibilities in Sec.  
300.111 and section 612(a)(3) of the Act. The child find requirements 
permit referrals from any source that suspects a child may be eligible 
for special education and related services. Child find activities 
typically involve some sort of screening process to determine whether 
the child should be referred for a full evaluation to determine 
eligibility for special education and related services. Therefore, 
persons such as employees of the SEA, LEA, or other public agencies 
responsible for the education of the child may identify children who 
might need to be referred for an evaluation. However, it is the parent 
of a child and the public agency that have the responsibility to 
initiate the evaluation procedures in Sec. Sec.  300.301 through 
300.311 and section 614 of the Act.
    Changes: None.
    Comment: Several commenters stated that the regulations should 
clarify that the 60-day timeframe in Sec.  300.301(c) to complete an 
evaluation does not begin if a parent requests an initial evaluation, 
the LEA denies the request, and the parent challenges the LEA's 
decision in a due process hearing.
    Discussion: We believe the regulations already address the 
commenters' concern. Section 300.301(b) provides that a parent may 
initiate a request for an initial evaluation to determine if the child 
is a child with a disability. If the public agency agrees to conduct 
the evaluation, Sec.  300.304(a) requires the public agency to provide 
notice to the parents, in accordance with Sec.  300.503, that describes 
any evaluation procedures that the agency proposes to conduct. The 
public agency must obtain informed consent for the evaluation, 
consistent with Sec. Sec.  300.9 and 300.300, prior to conducting the 
evaluation. The 60-day timeframe begins when the public agency receives 
the consent for evaluation.
    If, however, the public agency does not suspect that the child has 
a disability and denies the request for an initial evaluation, the 
public agency must provide written notice to the parents, consistent 
with Sec.  300.503(b) and section 615(c)(1) of the Act, which explains, 
among other things, why the public agency refuses to conduct an initial 
evaluation and the information that was used as the basis to make that 
decision. The parent may challenge such a refusal by requesting a due 
process hearing, but the timeline for conducting the evaluation does 
not begin prior to parental consent for evaluation. A parent would not 
be able to give consent under this part without knowing what specific 
evaluation procedures the public agency is proposing to conduct.
    Changes: None.
    Comment: A few commenters recommended that the regulations clarify 
whether a public agency has the right to deny a parent's request for an 
initial evaluation.
    Discussion: The regulations are sufficiently clear on this point. 
Section 300.503(a), consistent with section 615(b)(3) of the Act, 
provides that a public agency may refuse to initiate or change the 
identification, evaluation, or educational placement of the child, or 
the provision of FAPE to the child, if the public agency provides 
written notice. This includes situations in which a public agency 
wishes to deny a parent's request for an initial evaluation. The 
written notice must meet the requirements in Sec.  300.503(b). Thus, 
for situations in which a public agency wishes to deny a parent's 
request for an initial evaluation, the written notice would provide, 
among other things, an explanation of why the public agency refuses to 
conduct an initial evaluation and the information that was used to make 
that decision. A parent may challenge the public agency's refusal to 
conduct an initial evaluation by requesting a due process hearing.
    Changes: None.
Procedures for Initial Evaluation (Sec.  300.301(c))
    Comment: Numerous commenters requested that the regulations clarify 
when the 60-day timeframe for a public agency to conduct an initial 
evaluation begins. One commenter requested that the 60-day timeframe 
include completing both the evaluation and eligibility determination.
    Several commenters recommended reducing the timeframe for 
evaluations from 60 days to 30 days. Some commenters recommended that 
the 60-day timeframe be 60 school days. A few commenters stated that 
the timeframe for evaluation should be longer if additional time is 
required for specific assessments, such as behavioral assessments or 
other assessments based on scientific practices.
    Discussion: It would be inconsistent with the Act to reduce the 
timeframe from 60 days to 30 days, require the 60-day timeframe to be 
60 school days, extend the timeframe for particular types of 
assessments, or require that the 60-day timeframe cover both the 
evaluation and determination of eligibility. Section 614(a)(1)(C)(i)(I) 
of the Act requires an initial evaluation to be conducted within 60 
days of receiving parental consent for the evaluation or, if the State 
establishes a timeframe within which the evaluation must be conducted, 
within that timeframe. The regulations in Sec.  300.301(c) reflect this 
requirement.
    Changes: None.
    Comment: A few commenters asked whether a State could establish a 
timeframe of more than 60 days to complete an initial evaluation. A 
significant number of commenters recommended that if a State 
establishes its own timeframe within which an evaluation must be 
conducted, that the timeframe be less, but not more, than 60 days. 
Several commenters recommended that if a State has its own timeframe 
for evaluation, the timeframe should be reasonable and ``reasonable'' 
should be defined. Some commenters recommended that if a State's 
timeframe is greater than 60 days, the Department should provide 
guidance to the State and to parents in that State. One commenter 
recommended that if a State establishes its own timeframe, the State 
must offer parents an adequate opportunity to assert their procedural 
rights.
    Discussion: Section 300.301(c), consistent with section 
614(a)(1)(C)(i)(I) of the Act, requires an initial evaluation to be 
completed within 60 days of receiving parental consent for evaluation 
or, if the State establishes a

[[Page 46637]]

timeframe within which the evaluation must be conducted, within such 
timeframe. The Department declines to require that a State-established 
timeframe be less than 60 days or to place additional requirements on 
States with timeframes of greater than 60 days because the Act gives 
States the authority to establish different timeframes and imposes no 
restrictions on State exercise of that authority. We believe this is 
evidence of an intent to permit States to make reasoned determinations 
of the appropriate period of time in which evaluations should be 
conducted based on particular State circumstances.
    Changes: None.
    Comment: Numerous commenters requested clarification regarding the 
timeframe to complete an initial evaluation and convene the IEP Team. A 
few commenters stated that the timeframe from referral to IEP 
development could be as long as 120 calendar days (30 days from 
referral to consent; 60 days from consent to the eligibility 
determination; and 30 days from the eligibility determination to 
development of the IEP), and recommended that this timeframe be 60 
days.
    One commenter recommended that public agencies provide consent 
forms to parents promptly after a referral for evaluation has been made 
so that the child's evaluation is not delayed. A few commenters asked 
how promptly an LEA must seek parental consent following a referral for 
evaluation, and whether an LEA can wait until September to obtain 
consent if a referral is made in June or July.
    Discussion: We cannot change the timeframe for an initial 
evaluation specified in section 614(a)(1)(C) of the Act. Section 
614(a)(1)(C) of the Act requires that an initial evaluation be 
conducted within 60 days of receiving parental consent for the 
evaluation, or within the timeframe established by the State. Section 
300.323(c) is a longstanding requirement that a meeting be held to 
develop the child's IEP within 30 days of determining that a child 
needs special education and related services. We decline, however, to 
specify the timeframe from referral for evaluation to parental consent, 
or the timeframe from the completion of an evaluation to the 
determination of eligibility, as we are not in a position to determine 
the maximum number of days that should apply to these periods in all 
circumstances.
    However, it has been the Department's longstanding policy that 
evaluations be conducted within a reasonable period of time following 
the agency's receipt of parental consent, if the public agency agrees 
that an initial evaluation is needed to determine whether a child is a 
child with a disability. Likewise, the Department believes that 
eligibility decisions should be made within a reasonable period of time 
following the completion of an evaluation.
    The child find requirements in Sec.  300.111 and section 
612(a)(3)(A) of the Act require that all children with disabilities in 
the State who are in need of special education and related services be 
identified, located, and evaluated. Therefore, it would generally not 
be acceptable for an LEA to wait several months to conduct an 
evaluation or to seek parental consent for an initial evaluation if the 
public agency suspects the child to be a child with a disability.
    If it is determined through the monitoring efforts of the 
Department or a State that there is a pattern or practice within a 
particular State or LEA of not conducting evaluations and making 
eligibility determinations in a timely manner, this could raise 
questions as to whether the State or LEA is in compliance with the Act.
    With regard to the total timeframe from referral to IEP 
development, this will vary based on a number of factors, including the 
timing of parental consent following referral for an evaluation and 
whether a State establishes its own timeframe to conduct an initial 
evaluation. Given such factors, we do not believe it is feasible to 
further regulate on this timeframe.
    Changes: None.
    Comment: Numerous commenters recommended that an initial evaluation 
be conducted in an expedited timeframe for children who are homeless or 
in the custody of a child welfare agency. The commenters stated that 
public agencies should take into consideration the date on which the 
child was first referred for evaluation by any public agency.
    Discussion: Congress recognized the unique problems homeless 
children face and included several new provisions in the Act to ensure 
that homeless children and youth with disabilities have access to the 
same services and supports as all other children with disabilities. The 
Department recognizes that the high mobility rates of some homeless 
children with disabilities (as well as other children, including some 
children who are in the custody of a State child welfare agency) pose 
unique challenges when a child is referred for an evaluation, but moves 
to another district or State before an evaluation can be initiated or 
completed. In such cases, the Department believes it is important that 
the evaluations be completed as expeditiously as possible, taking into 
consideration the date on which the child was first referred for 
evaluation in any LEA. However, the high mobility rate of these 
children and their potential range of evaluation needs means that any 
specific expedited timeframe could be both too long to ensure that all 
children are evaluated before they move, and too short to be reasonable 
in all circumstances. There is nothing, however, in Part B of the Act 
or these regulations that would prohibit a State from establishing its 
own policies to address the needs of homeless children, including 
adopting a timeframe for initial evaluations that is less than 60 days.
    Changes: None.
Exception (Sec.  300.301(d))
    Comment: Numerous commenters requested clarification regarding 
whether the 60-day timeframe for initial evaluations could be extended 
by mutual agreement between the parent and the public agency. A few 
commenters asked whether the 60-day timeframe could be extended for 
reasons other than the exceptions listed in Sec.  300.301(d), and 
whether a State could include other exceptions in its State policies 
and procedures.
    Discussion: Congress was clear in limiting the exceptions to the 
60-day timeframe to the situations in section 614(a)(1)(C)(ii) of the 
Act. Therefore, we do not believe it is appropriate to include in the 
regulations other exceptions, such as permitting a parent and a public 
agency to mutually agree to extend the 60-day timeframe or to include 
exceptions to the timeframe, that would be in addition to those in the 
Act and listed in Sec.  300.301(d). However, the Act gives States 
considerable discretion with a State-adopted timeframe. A State could 
adopt a timeframe of 60 days or some other number of days, with 
additional exceptions.
    Changes: None.
    Comment: A number of comments were received requesting 
clarification on the provision in Sec.  300.301(d)(1), which allows an 
extension of the 60-day or State-established timeframe to complete an 
initial evaluation if the parent of a child repeatedly fails or refuses 
to produce the child for an evaluation. A few commenters asked whether 
the exception applies when a child is not available because of absences 
on the days the evaluation is scheduled. Several commenters stated that 
``produce'' does not necessarily mean the child's physical presence in 
school. Other commenters requested that the regulations define 
``repeatedly

[[Page 46638]]

fails'' and ``refuses to produce'' so that LEAs do not have to engage 
in exhaustive efforts to obtain access to the child to complete the 
evaluation.
    One commenter recommended that the regulations clarify that an LEA 
must document that it has made several attempts to address the parent's 
concerns and clarify any confusion the parent may have about the 
evaluation, as well as address issues that make it difficult for the 
parent to bring the child to a scheduled evaluation, such as lack of 
transportation and childcare.
    Discussion: Section 300.301(d) follows the specific language in 
section 614(a)(1)(C)(ii)(II) of the Act. We do not believe it is 
appropriate or reasonable to define ``repeatedly fails'' or ``refuses 
to produce'' because the meaning of these phrases will vary depending 
on the specific circumstances in each case. For example, situations in 
which a child is absent on the days the evaluation is scheduled because 
the child is ill would be treated differently than if a parent 
repeatedly fails to keep scheduled appointments. Similarly, situations 
in which a parent fails to keep scheduled appointments when a public 
agency repeatedly schedules the evaluation to accommodate the parent's 
schedule would be treated differently than situations in which a public 
agency makes no attempt to accommodate a parent's schedule.
    We do not believe it is necessary to clarify that an LEA must 
document that it has made several attempts to address a parent's 
concerns and issues about the evaluation. As a matter of practice, LEAs 
attempt to address parent's concerns and issues prior to scheduling an 
evaluation because repeated cancellations of appointments or repeated 
failures to produce the child for an evaluation are costly in terms of 
staff time and effort.
    Changes: None.
    Comment: Numerous commenters recommended that there be an exception 
to the 60-day timeframe when a child transfers to a new school before 
an evaluation is completed.
    Discussion: The exception referred to by the commenters is already 
in the regulations. Section 300.301(d)(2), consistent with section 
614(a)(1)(C)(ii)(I) of the Act, states that the 60-day or State-
established timeframe does not apply when a child transfers to a new 
school before an evaluation is completed, if the new public agency is 
making sufficient progress to ensure prompt completion of the 
evaluation, and the parent and new public agency agree to a specific 
time when the evaluation will be completed. While the exception to the 
60-day timeframe, as stated in section 614(a)(1)(C)(ii)(I) of the Act 
and paragraph (d)(2) of this section, only applies when a child 
transfers to a school located in another public agency, we do not 
believe the language in paragraph (d)(2), as proposed in the NPRM, is 
necessarily clear on this matter. We, therefore, have added language in 
paragraph (d)(2) to provide additional clarity. We believe it is 
important that it is understood that the 60-day or State-established 
timeframe does not apply when a child transfers from one school to 
another school in the same public agency. When a child transfers from 
one school to another school in the same public agency, we expect that 
an initial evaluation will be conducted within 60 days of receiving 
parental consent for the evaluation, or within the State-established 
timeframe.
    Changes: We have added language to Sec.  300.301(d)(2) to clarify 
that the exception to the 60-day or State-established timeframe only 
applies when a child transfers to a new school located in another 
public agency.
    Comment: Several comments were received on the provision in new 
Sec.  300.301(e) (proposed Sec.  300.301(d)(2)(ii)) that allows an 
exception to the 60-day or State-established timeframe, only if the new 
public agency is making sufficient progress to ensure a prompt 
completion of the evaluation and the parent and new public agency agree 
to a specific time when the evaluation will be completed. One commenter 
stated that schools would be unable to meet the 60-day timeframe for 
children who transfer from another public agency if the new public 
agency has not been notified of the evaluation timeframe. Another 
commenter recommended that exceptions to the 60-day timeframe should 
not be permitted because the term ``sufficient progress'' is not 
defined. A few commenters requested that the regulations define 
``sufficient progress.''
    One commenter stated that there might be legitimate reasons for not 
completing an evaluation within the 60-day timeframe, such as 
differences in the assessment instruments used in the previous and new 
public agency, and requested that the regulations provide guidance on 
how a public agency should determine if appropriate progress is being 
made.
    One commenter recommended that if there is no date certain when an 
evaluation must be completed when a child transfers public agencies, 
the new public agency should conduct an evaluation within 60 days of 
the enrollment date of the child; make reasonable efforts to obtain 
evaluation information from the previous public agency; and consider 
any available evaluation information from the previous public agency.
    One commenter recommended requiring the new public agency to 
contact the previous public agency within five days to request a report 
of any actions taken to transfer the child's records, copies of 
completed evaluations, a copy of the child's file, and an estimate as 
to when the information will be sent. The commenter stated that public 
agencies should be required to keep records of such attempts to inform 
parents of all actions through written communication. The commenter 
stated that if the information is not received within 15 days, the new 
public agency should be required to begin a new evaluation and complete 
it within the 60-day or State-established timeframe.
    Discussion: The exceptions to the 60-day or State-established 
timeframe must be permitted because they are statutory. Section 
614(a)(1)(C)(ii)(I) of the Act, which is incorporated in Sec.  
300.300(d)(2), provides that the 60-day or State-established timeframe 
does not apply if a child enrolls in a school served by the public 
agency after the relevant timeframe has begun, and prior to a 
determination by the child's previous public agency as to whether the 
child is a child with a disability. The exception applies only if the 
subsequent public agency is making sufficient progress to ensure prompt 
completion of the evaluation, and the parent and subsequent public 
agency agree to a specific time when the evaluation will be completed.
    We do not believe it is necessary to define the phrase ``sufficient 
progress'' because the meaning will vary depending on the specific 
circumstances in each case. As one commenter noted, there may be 
legitimate reasons for not completing the evaluation within the 60-day 
timeframe, such as differences in assessment instruments used in the 
previous and new public agencies, and the length of time between a 
child leaving one school and enrolling in the next school. Therefore, 
we believe that whether a new public agency is making sufficient 
progress to ensure prompt completion of an evaluation is best left to 
the discretion of State and local officials and parents to determine.
    It would be over-regulating to specify the number of days within 
which a new public agency must request a child's records from the 
previous public agency or to require the new public agency to document 
its attempts to obtain the records and keep parents informed of all


[[Continued on page 46639]]


From the Federal Register Online via GPO Access [wais.access.gpo.gov]
]                         
 
[[pp. 46639-46688]] Assistance to States for the Education of Children With 
Disabilities and Preschool Grants for Children With Disabilities

[[Continued from page 46638]]

[[Page 46639]]

actions through written communication. We note, however, that Sec.  
300.304(c)(5), consistent with section 614(b)(3)(D) of the Act, 
requires each public agency to ensure that the evaluations of children 
with disabilities who transfer from one school district to another 
school district in the same school year are coordinated with the 
children's prior and subsequent schools, as necessary, and as 
expeditiously as possible, to ensure prompt completion of full 
evaluations.
    Additionally, new Sec.  300.323(g) (proposed Sec.  300.323(e)(2)), 
consistent with section 614(d)(2)(C)(ii) of the Act, requires the new 
school in which the child enrolls to take reasonable steps to promptly 
obtain the child's records (including the IEP and supporting documents 
and any other records relating to the provision of special education or 
related services to the child) from the previous public agency in which 
the child was enrolled. The previous public agency in which the child 
was enrolled must also take reasonable steps to promptly respond to the 
request from the new public agency. We believe that these requirements 
will help to ensure that a child's records are promptly received by the 
new public agency.
    The Act does not require the evaluation of a child who is 
transferring to a new school to be completed within 60 days of the 
enrollment date of the child, as recommended by one commenter, and we 
do not believe that such a requirement should be included in the 
regulations. The completion of evaluations for children who transfer to 
another school are subject to multiple factors and we decline to 
regulate on a specific timeframe that would apply in all circumstances.
    Changes: None.
    Comment: One commenter recommended sanctions against a new public 
agency that fails to make an effort to complete an evaluation of a 
child who transfers to another school that was begun by a previous 
public agency. The commenter stated that the previous public agency 
should also be sanctioned for failure to cooperate with a new public 
agency or for otherwise impeding the ability of the new public agency 
to complete the evaluation promptly.
    Discussion: As part of its general supervisory responsibilities in 
Sec.  300.149 and section 612(a)(11) of the Act, each SEA is 
responsible for ensuring that the requirements of Part B of the Act are 
followed, including the requirements for children who transfer from one 
public agency to another public agency within the school year. Whether 
sanctions against a particular LEA are appropriate should be determined 
by the SEA in the first instance, as they are in the best position to 
determine what sanctions, technical assistance, or combination of the 
two are likely to lead to future compliance. For that reason, we 
decline to regulate with more specificity in this area.
    Changes: None.
Screening for Instructional Purposes Is Not Evaluation (Sec.  300.302)
    Comment: One commenter requested clarification on the difference 
between screening and evaluation and recommended that the regulations 
include specific examples of what constitutes screening, including 
testing instruments that are appropriate to be used for screening to 
determine appropriate instructional strategies. Many commenters 
recommended permitting States to determine the screening process for 
identifying appropriate instructional strategies.
    One commenter stated that ``screening'' is too loosely defined and 
may be confused with State regulations that require screening for a 
child's entrance into school. The commenter recommended that the 
regulations address issues such as the need for parental consent prior 
to screening and a timeframe for screening subsequent to a request.
    Discussion: An ``evaluation,'' as used in the Act, refers to an 
individual assessment to determine eligibility for special education 
and related services, consistent with the evaluation procedures in 
Sec. Sec.  300.301 through 300.311. ``Screening,'' as used in Sec.  
300.302 and section 614(a)(1)(E) of the Act, refers to a process that a 
teacher or specialist uses to determine appropriate instructional 
strategies. Screening is typically a relatively simple and quick 
process that can be used with groups of children. Because such 
screening is not considered an evaluation under Sec. Sec.  300.301 
through 300.311 to determine eligibility for special education 
services, parental consent is not required.
    Section 300.302 does not address screening for a child's entrance 
into school under a State's rules. Screening required under a State's 
rules for a child's entrance into school is the responsibility of the 
State and is not within the purview of the Act. We believe that the 
provisions in Sec. Sec.  300.301 through 300.311, regarding 
evaluations, and Sec.  300.302, regarding screening for instructional 
purposes, are clear, and therefore, we do not believe it is necessary 
to add language to the regulations.
    We decline to provide specific examples of testing instruments to 
determine appropriate instructional strategies because this will vary 
based on the age of the child and the subject matter, and is best left 
to State and local officials to determine. Likewise, the process for 
screening, including the timeframe to complete the screening process, 
is a decision that is best left to State and local officials to 
determine, based on the instructional needs of the children.
    Changes: None.
    Comment: One commenter asked whether the provisions in Sec.  
300.302, regarding screening, apply to a child with a disability, as 
well as a child who has not been identified as a child with a 
disability. One commenter noted that Sec.  300.302 refers to screening 
of a child by a teacher or a specialist and asked who would be 
considered a specialist. Another commenter requested clarification 
regarding the term ``instructional strategies for curriculum 
implementation,'' as used in Sec.  300.302.
    Discussion: Section 300.302, consistent with section 614(a)(1)(E) 
of the Act, states that the screening of a child by a teacher or 
specialist to determine appropriate instructional strategies is not 
considered an evaluation for purposes of determining eligibility for 
special education and related services. This applies to a child with a 
disability, as well as a child who has not been identified as a child 
with a disability. Such screening, therefore, could occur without 
obtaining informed parental consent for screening.
    We believe the determination of who is considered a ``specialist'' 
should be left to the discretion of the public agency and should not be 
specified in the regulations. The term, ``instructional strategies for 
curriculum implementation'' is generally used to refer to strategies a 
teacher may use to more effectively teach children.
    Changes: None.
    Comment: One commenter recommended clarification regarding whether 
States can develop and implement policies that permit screening of 
children to determine if evaluations are necessary.
    Discussion: There is nothing in the Act that requires a State to, 
or prohibits a State from, developing and implementing policies that 
permit screening children to determine if evaluations are necessary. 
However, screening may not be used to delay an evaluation for special 
education and related services. If a child is referred for an 
evaluation to determine eligibility for special education and related 
services, the public agency must implement the requirements in 
Sec. Sec.  300.301 through 300.311 and adhere to the 60-day or the

[[Page 46640]]

State-established timeframe to complete the evaluation.
    Changes: None.
Reevaluations (Sec.  300.303)
    Comment: A few commenters recommended clarifying that a parent is 
not required to provide a reason for requesting a reevaluation. Several 
commenters recommended that the regulations require a public agency to 
provide prior written notice if a parent requests a reevaluation within 
a year and the public agency refuses the request.
    Discussion: Section 300.303(b), consistent with section 
614(a)(2)(A)(ii) of the Act, states that a reevaluation may occur if 
the child's parent or teacher requests a reevaluation. There is no 
requirement that a reason for the reevaluation be given and we agree 
that a reevaluation cannot be conditioned on the parent providing a 
reason for requesting a reevaluation.
    Section 300.303(b), consistent with section 614(a)(2)(B) of the 
Act, provides that a reevaluation may occur not more than once a year 
and must occur at least once every three years, unless the parent and 
the public agency agree otherwise. If a parent requests more than one 
reevaluation in a year and the public agency does not believe a 
reevaluation is needed, we believe the regulations are clear that the 
public agency must provide the parents with written notice of the 
agency's refusal to conduct a reevaluation, consistent with Sec.  
300.503 and section 615(c)(1) of the Act. We do not believe additional 
regulations are necessary to address this specific instance of a public 
agency's refusal to initiate a reevaluation and the written notice 
requirements in Sec.  300.503.
    Changes: None.
    Comment: A few commenters requested clarification regarding whether 
an evaluation that assesses skills that were not previously assessed in 
the same related services area would be considered an evaluation or 
reevaluation. One commenter, asked, for example, if a speech-language 
evaluation was conducted to assess a child's speech impairment one 
year, would an evaluation the following year to assess the child's 
language abilities be considered an evaluation or reevaluation?
    Discussion: An initial evaluation of a child is the first complete 
assessment of a child to determine if the child has a disability under 
the Act, and the nature and extent of special education and related 
services required. Once a child has been fully evaluated, a decision 
has been rendered that a child is eligible for services under the Act, 
and the required services have been determined, any subsequent 
evaluation of a child would constitute a reevaluation. In the example 
provided by the commenter, the second evaluation would be considered a 
reevaluation.
    Changes: None.
    Comment: One commenter recommended that reevaluations be required 
at least once every three years because a child's mental and physical 
profile changes in three years, and thus, so would the child's 
educational needs. Another commenter recommended requiring LEAs to 
inform parents that information from the most recent evaluation, which 
could be three or more years old if the parent agrees that a 
reevaluation is unnecessary, will be used in the development of a 
child's IEP.
    A few commenters recommended an accountability process for LEAs 
that do not conduct reevaluations at least every three years. The 
commenters recommended requiring LEAs to report to the State the number 
of children with disabilities who qualified for, but were not given a 
three-year reevaluation; provide prior written notice to parents if the 
LEA determines that a three-year reevaluation is not necessary, 
including the justification for such determination; and inform the 
parent in writing in the parent's language that a three-year 
reevaluation will be conducted if the parent disagrees with the LEA's 
determination.
    One commenter recommended requiring an LEA that does not conduct a 
reevaluation at least once every three years to justify the reasons in 
writing, especially if there is evidence that the child is not meeting 
the State's academic achievement standards.
    Discussion: Section 300.303(b)(2), consistent with section 
614(a)(2)(B)(ii) of the Act, requires a reevaluation to occur at least 
once every three years, unless the parent and the public agency agree 
that a reevaluation is unnecessary.
    It would be overly burdensome to require an LEA to report to the 
State the number of children with disabilities who qualified for, but 
were not given a three-year reevaluation. Similarly, it would be overly 
burdensome to require LEAs to inform parents that information from the 
most recent evaluation will be used to develop a child's IEP or to 
justify to the parent in writing the LEA's reasons for not conducting a 
reevaluation every three years if the parent and the agency have 
already agreed that a reevaluation is unnecessary.
    If a parent requests a reevaluation and the public agency disagrees 
that a reevaluation is needed, the public agency must provide prior 
written notice to the parent, consistent with Sec.  300.503, that 
explains, among other things, why the agency refuses to conduct the 
reevaluation and the parent's right to contest the agency's decision 
through mediation or a due process hearing.
    In situations where a public agency believes a reevaluation is 
necessary, but the parent disagrees and refuses consent for a 
reevaluation, new Sec.  300.300(c)(1)(ii) is clear that the public 
agency may, but is not required to, pursue the reevaluation by using 
the consent override procedures described in Sec.  300.300(a)(3).
    Changes: None.
    Comment: One commenter recommended the following requirements for 
the reevaluation of a child with the most significant cognitive 
disabilities who is assessed based on alternate achievement standards: 
(a) Prohibiting the public agency from automatically determining that a 
three-year reevaluation is not needed; (b) requiring the public agency 
to consider whether the child has been correctly identified to be 
assessed against alternate achievement standards; and (c) requiring a 
review of evaluation data to determine whether the child is, to the 
extent possible, being educated in the general curriculum and assessed 
with instruments aligned with that curriculum.
    Discussion: We do not believe changes to the regulations are 
necessary to address the commenter's concerns. The Act does not include 
any special requirements for the reevaluation of a child with the most 
significant cognitive disabilities who is assessed against alternate 
achievement standards. It would be inconsistent with the individualized 
evaluation and reevaluation procedures in section 614(b) and (c) of the 
Act for a public agency to automatically determine that reevaluations 
are unnecessary for a specific group of children. In determining 
whether a reevaluation is needed, the parent and the public agency must 
consider the child's educational needs, which may include whether the 
child is participating in the general education curriculum and being 
assessed appropriately.
    Changes: None.
    Comment: One commenter recommended clarifying that parents have the 
right to prevent the over-testing of their child and that the 
requirements for reevaluations do not diminish the rights of parents to 
make decisions regarding the reevaluation. Several commenters 
recommended that the regulations require States to establish

[[Page 46641]]

additional procedural safeguards to ensure that parents who agree that 
a reevaluation is unnecessary are aware of the implications of their 
decision.
    Discussion: There is nothing in the Act to suggest that the 
requirements for reevaluations in Sec.  300.303 diminish the rights of 
parents. As stated in Sec.  300.303, consistent with section 614(a)(2) 
of the Act, a parent can request a reevaluation at any time, and can 
agree with the public agency to conduct a reevaluation more frequently 
than once a year. Likewise, a parent and a public agency can agree that 
a reevaluation is not necessary. We believe that in reaching an 
agreement that a reevaluation is unnecessary, as provided for in Sec.  
300.303(b), the parent and public agency will discuss the advantages 
and disadvantages of conducting a reevaluation, as well as what effect 
a reevaluation might have on the child's educational program. 
Therefore, we do not agree with the commenter that additional 
procedural safeguards are necessary to ensure that parents who agree 
that a reevaluation is unnecessary are aware of the implications of 
their decision.
    Changes: None.
    Comment: Many commenters requested that the opportunity to waive a 
reevaluation occur only after the IEP Team has reviewed extant data to 
determine whether additional data are needed to determine the child's 
eligibility and the educational needs of the child.
    Discussion: The review of existing data is part of the reevaluation 
process. Section 300.305(a), consistent with section 614(c)(1) of the 
Act, is clear that, as part of any reevaluation, the IEP Team and other 
qualified professionals, as appropriate, must review existing 
evaluation data, and on the basis of that review, and input from the 
child's parents, identify what additional data, if any, are needed to 
determine whether the child continues to have a disability, and the 
educational needs of the child. Therefore, the opportunity for a parent 
and the public agency to agree that a reevaluation is unnecessary 
occurs before a reevaluation begins. It would be inconsistent with the 
Act to implement the commenters' recommendation.
    Changes: None.
    Comment: One commenter recommended that the regulations clarify 
that waiving a three-year reevaluation must not be adopted as routine 
agency policy or practice and should only be used in exceptional 
circumstances. Another commenter recommended that the regulations 
require the LEA to offer parents a reevaluation at least annually when 
a parent agrees that a three-year reevaluation is not needed. Another 
commenter recommended that the regulations clarify that a reevaluation 
may be warranted more than once a year if the child's condition changes 
or new information becomes available that has an impact on the child's 
educational situation.
    Discussion: It is not necessary to add language clarifying that 
waiving three-year reevaluations must not be a routine agency policy or 
practice because the regulations are clear that this is a decision that 
is made individually for each child by the parent of the child and the 
public agency. Section 300.303(b)(2), consistent with section 
614(a)(2)(B)(ii) of the Act, states that a reevaluation must occur at 
least once every three years, unless the parent and the public agency 
agree that a reevaluation is unnecessary. When a parent and a public 
agency agree that a three-year reevaluation is unnecessary, there is no 
requirement that the public agency offer the parent a reevaluation each 
year. We do not believe that it is necessary to have such a requirement 
because if parents who have waived a three year reevaluation later 
decide to request an evaluation, they can do so. Also, public agencies 
have a continuing responsibility to request parental consent for a 
reevaluation if they determine that the child's educational or related 
services needs warrant a reevaluation.
    We do not believe additional regulations are needed to clarify that 
a reevaluation can occur more than once a year. Section 300.303(b)(1), 
consistent with section 614(a)(2)(B)(i) of the Act, already provides 
that a reevaluation can occur more than once a year if the parent and 
the public agency agree that a reevaluation is needed.
    Changes: None.
    Comment: One commenter asked whether the agreement between the 
parent and the public agency that a reevaluation is unnecessary is the 
same as parental consent in Sec.  300.9.
    Discussion: An agreement between a parent and a public agency is 
not the same as parental consent in Sec.  300.9. Rather, an agreement 
refers to an understanding between a parent and the public agency and 
does not need to meet the requirements for parental consent in Sec.  
300.9.
    Changes: None.
    Comment: One commenter recommended that the regulations clarify 
that when a parent obtains an independent educational evaluation (IEE) 
and provides new information to the public agency, a reevaluation could 
be conducted more than once a year so that the public agency can verify 
the results of the IEE.
    Discussion: The changes recommended by the commenter are 
unnecessary. Section 300.303(b)(1), consistent with section 
614(a)(2)(B)(i) of the Act, is clear that a reevaluation can be 
conducted more than once a year if the parent and the public agency 
agree that it is necessary. Therefore, in the situation presented by 
the commenter, if the results of an IEE provide new information that 
the public agency and the parent agree warrant a reevaluation, the 
parent and the public agency could agree to conduct a reevaluation.
    Changes: None.
    Comment: One commenter asked whether an IEE is considered a 
reevaluation and whether an IEE is prohibited within less than a year 
of the public agency's most recent evaluation.
    Discussion: An IEE would be considered as a potential source of 
additional information that the public agency and parent could consider 
in determining whether the educational or related services needs of the 
child warrant a reevaluation, but it would not be considered a 
reevaluation. There is no restriction on when a parent can request an 
IEE.
    Changes: None.
Evaluation Procedures (Sec.  300.304)
Notice (Sec.  300.304(a))
    Comment: Numerous commenters recommended that the regulations 
clarify that the requirement for prior written notice to parents in 
Sec.  300.304(a) is satisfied if the public agency notifies the parent 
of the type(s) of assessment(s) that will be conducted. One commenter 
stated that the prior written notice requirements for evaluations 
should be satisfied if the public agency notifies the parent of the 
type(s) of assessment(s) that will be conducted, the method(s) of 
assessment, and the persons who will conduct the assessment(s).
    Discussion: It would be inconsistent with the Act for a public 
agency to limit the contents of the prior written notice in the manner 
requested by the commenters. In addition to describing the evaluation 
procedures the agency proposes to use, as required in Sec.  300.303(a), 
section 615(c)(1) of the Act requires the prior written notice to 
include an explanation of why the agency proposes to evaluate the 
child; a description of each evaluation procedure, assessment, record, 
or report the agency used as a basis for requesting the evaluation; a 
statement that the parents have protection under the procedural 
safeguards of the Act, and if this notice is not an initial referral 
for

[[Page 46642]]

evaluation, the means by which a copy of the procedural safeguards can 
be obtained; sources for the parents to contact to obtain assistance in 
understanding the provisions of the Act; a description of other options 
that were considered and why these reasons were rejected; and a 
description of other factors that are relevant to the agency's proposal 
to request consent for an evaluation.
    Changes: None.
    Comment: A few commenters stated that the notice to parents 
regarding the evaluation procedures the agency proposes to use must be 
provided in the native language of the parents, and recommended that 
this requirement be clarified in Sec.  300.304.
    Discussion: Information regarding the evaluation procedures the 
agency proposes to use, as required in Sec.  300.303(a), is included in 
the prior written notice required in Sec.  300.503(c)(1)(ii). Section 
300.503(c)(1)(ii) requires, that the prior written notice to parents be 
provided in the native language of the parent or other mode of 
communication used by the parent, unless it is clearly not feasible to 
do so. We see no need to repeat these requirements in Sec.  300.304 and 
believe that doing so could cause confusion about the status of other 
applicable requirements that would not be repeated in this section.
    Changes: None.
Conduct of Evaluation (Sec.  300.304(b))
    Comment: One commenter asked whether the ``procedure'' referred to 
in Sec.  300.304(b)(2) is the same as the ``measure or assessment'' 
referred to in section 614(b)(2)(B) of the Act. Another commenter 
recommended changing Sec.  300.304(b)(2) to follow the statutory 
language.
    Discussion: Section 300.304(b)(2), as proposed, states that the 
public agency may not use any single ``procedure'' as the sole 
criterion for determining whether a child is a child with a disability 
and for determining an appropriate educational program for the child. 
Section 614(b)(2)(B) of the Act states that in conducting an 
evaluation, the LEA must not use any single ``measure or assessment'' 
as the sole criterion for determining whether a child is a child with a 
disability or determining an appropriate educational program for the 
child. We agree that the statutory language should be used in Sec.  
300.304(b)(2) because use of the term ``procedure,'' rather than 
``measurement or assessment,'' could be confusing.
    Changes: We have changed ``procedure'' to ``measurement or 
assessment'' in Sec.  300.304(b)(2), consistent with the statutory 
language.
    Comment: One commenter recommended adding the word ``always'' to 
Sec.  300.304(b) to state that the public agency must ``always'' 
conduct an evaluation in accordance with the requirements in Sec.  
300.304(b)(1) through (b)(3).
    Discussion: Adding the word ``always'' to Sec.  300.304(b) would 
not change the requirements for conducting an evaluation consistent 
with Sec.  300.304(b). The regulation already requires a public agency 
to conduct the evaluation in accordance with Sec.  300.304(b)(1) 
through (b)(3) and there are no exceptions to that requirement. 
Therefore, we decline to change Sec.  300.304(b) in the manner 
recommended by the commenter.
    Changes: None.
    Comment: One commenter recommended that the regulations define 
``technically sound instruments'' and ``relative contribution'' in 
Sec.  300.304(b)(3). Another commenter recommended that the instruments 
used in reevaluations to determine whether the child continues to have 
a disability should be based on scientific research methods.
    Discussion: Section 300.304(b)(3) follows the specific language in 
section 614(b)(2)(C) of the Act and requires that the evaluation of a 
child use technically sound instruments that may assess the relative 
contribution of cognitive and behavioral factors, in addition to 
physical and developmental factors. ``Technically sound instruments'' 
generally refers to assessments that have been shown through research 
to be valid and reliable. Therefore, it would be redundant to add 
language requiring that instruments used in reevaluations be based on 
scientific research methods, as recommended by one commenter. The 
phrase ``relative contribution,'' as used in Sec.  300.304(b)(3), 
generally means that assessment instruments that allow the examiner to 
determine the extent to which a child's behavior is a result of 
cognitive, behavioral, physical, or developmental factors may be used 
in evaluating a child in accordance with Sec.  300.304. Because the 
meaning of ``relative contribution'' is context specific, we do not 
believe it should be defined in these regulations.
    Changes: None.
Other Evaluation Procedures (Sec.  300.304(c))
    Comment: One commenter recommended clarifying that differences in 
language and socialization practices must be considered when 
determining eligibility for special education and related services, 
including biases related to the assessment.
    Discussion: We do not believe that the clarification requested by 
the commenter is necessary. The Act and these regulations recognize 
that some assessments may be biased and discriminatory for children 
with differences in language and socialization practices. Section 
614(b)(3)(A)(i) of the Act requires that assessments and other 
evaluation materials used to assess a child under the Act are selected 
and administered so as not to be discriminatory on a racial or cultural 
basis. Additionally, in interpreting evaluation data for the purpose of 
determining eligibility of a child for special education and related 
services, Sec.  300.306(c) requires each public agency to draw upon 
information from a variety of sources, including aptitude and 
achievement tests, parent input, teacher recommendations, as well as 
information regarding a child's physical condition, social or cultural 
background, and adaptive behavior. We believe that these provisions 
provide adequate protection for the concerns raised by the commenter.
    Changes: None.
    Comment: One commenter requested that the regulations clarify that 
a public agency should not use the ``not clearly feasible'' exception 
in Sec.  300.304(c)(1)(ii) to improperly limit a child's right to be 
evaluated in the child's native language or other mode of 
communication.
    Discussion: Section 300.304(c)(1)(ii), consistent with section 
614(b)(3)(A)(ii) of the Act, requires that assessments and other 
evaluation materials used to assess a child be provided and 
administered in the child's native language or other mode of 
communication and in the form most likely to yield accurate information 
on what the child knows and can do, unless it is clearly not feasible 
to so provide or administer. We agree that this provision should not be 
improperly used to limit evaluations in a child's native language, but 
we do not believe that a change to the regulations is necessary or that 
it would prevent inappropriate application of the existing rule.
    Changes: None.
    Comment: One commenter recommended including ``behavior'' in the 
list of areas to be evaluated in Sec.  300.304(c)(4). Another commenter 
recommended requiring a functional behavioral assessment to be part of 
a child's evaluation whenever any member of the IEP Team requests it or 
raises concerns about the child's behavior. One commenter asked why 
physical assessments were not included

[[Page 46643]]

in the list of assessments that should be conducted.
    Discussion: Section 300.304(c)(4) requires the public agency to 
ensure that the child is assessed in all areas related to the suspected 
disability. This could include, if appropriate, health, vision, 
hearing, social and emotional status, general intelligence, academic 
performance, communicative status, and motor abilities. This is not an 
exhaustive list of areas that must be assessed. Decisions regarding the 
areas to be assessed are determined by the suspected needs of the 
child. If a child's behavior or physical status is of concern, 
evaluations addressing these areas must be conducted. No further 
clarification is necessary.
    Changes: None.
    Comment: Many commenters recommended that the evaluation report 
include a description of the extent to which an assessment varied from 
standard conditions because there are few assessments that produce 
valid and reliable information for English language learners suspected 
of having a disability. Several commenters stated that it is standard 
practice for professionals administering assessments to include 
information in their reports when assessments are conducted using 
nonstandard conditions. One commenter recommended that the regulations 
require all evaluation reports to clearly indicate the language or 
other mode of communication used in assessing a child and a 
determination of whether using such language or other mode of 
communication yielded accurate information.
    Discussion: As stated by several commenters, it is standard test 
administration practice to include in the evaluation report the extent 
to which an assessment varied from standard conditions, including the 
language or other mode of communication that was used in assessing a 
child. It is, therefore, unnecessary to include this requirement in the 
regulations.
    Changes: None.
    Comment: Many commenters recommended that the regulations require 
public agencies to provide parents with evidence that the assessments 
to be used are reliable and valid for their particular use, as well as 
assurances that the assessments will be administered in the child's 
primary language or mode of communication. The commenters also 
recommended that public agencies be required to provide parents with 
information regarding the assumptions being made about the tests and 
the inferences that can be drawn from the test results.
    Discussion: Section 300.304(a), consistent with section 614(b)(1) 
of the Act, requires the public agency to provide notice to the parents 
of a child with a disability, in accordance with Sec.  300.503, that 
describes the evaluation procedures the agency proposes to conduct. To 
require public agencies to provide all parents with the specific 
information recommended by the commenters would be burdensome for 
public agencies, and could be overwhelming for some parents, and 
therefore, we decline to add such a requirement to the regulations. 
While we understand that some parents will want the detailed 
information mentioned by the commenter, parents can always request such 
additional information before providing informed written consent for 
the evaluation or reevaluation.
    Changes: None.
    Comment: A few commenters recommended that the regulations require 
comprehensive psychological and educational evaluations to rule out 
alternate causes of functional impairments in academic achievement.
    Discussion: We believe the regulations already address the 
commenters' concerns and we do not believe any further clarification is 
necessary. Section 300.304(c)(6) requires that evaluations are 
sufficiently comprehensive to identify all of the child's special 
education and related services needs, whether or not commonly linked to 
the disability category in which the child has been identified. In 
addition, Sec.  300.306(b), consistent with section 614(b)(5) of the 
Act, states that a child must not be determined to be a child with a 
disability if the determinant factor for that determination is lack of 
appropriate instruction in reading or math, or limited English 
proficiency.
    Changes: None.
    Comment: Several commenters recommended that the requirements in 
new Sec.  300.301(d)(2) and (e) (proposed Sec.  300.301(d)(2)(i) and 
(ii)), regarding children who transfer to another public agency before 
an initial evaluation is completed, should be cross-referenced in Sec.  
300.304(c)(5).
    Discussion: We agree that a cross-reference in Sec.  300.304(c)(5) 
is appropriate.
    Changes: We have added ``consistent with Sec.  300.301(d)(2) and 
(e),'' following ``possible'' in Sec.  300.304(c)(5).
    Comment: None.
    Discussion: In reviewing Sec.  300.304(c)(5), we determined that 
Sec.  300.304(c)(5) should be amended to refer to children with 
disabilities who transfer to another public agency ``in the same school 
year'' rather than ``in the same academic year'' because that is the 
term most commonly understood by parents and school officials.
    Changes: We have changed ``academic year'' to ``school year'' in 
Sec.  300.304(c)(5).
    Comment: One commenter recommended adding language regarding 
scientifically based special education and related services to Sec.  
300.304(c)(6).
    Discussion: Section 300.304(c)(6) requires that the evaluation of a 
child with a disability be sufficiently comprehensive to identify all 
the child's special education and related services needs, whether or 
not commonly linked to the disability category in which the child has 
been classified. We believe that the focus on providing scientifically 
based special education and related services is clear in the Act and 
these regulations and do not believe it is necessary to refer to 
``scientifically based'' services each time we refer to special 
education and related services. Therefore, we decline to add this 
language in Sec.  300.304(c)(6), as requested by the commenter.
    Changes: None.
Additional Requirements for Evaluations and Reevaluations (Sec.  
300.305)
Review of Existing Evaluation Data (Sec.  300.305(a))
    Comment: One commenter stated that a comma should be added after 
``current classroom-based'' in Sec.  300.305(a)(1)(ii) to clarify that 
a review of existing evaluation data for a child must include, as 
appropriate, data from three types of assessments: Current classroom-
based, local, or State assessments.
    Discussion: We agree with the commenter and will revise the 
language consistent with the commenter's suggestion and consistent with 
section 614(c)(1)(A)(ii) of the Act. The changes will clarify that a 
review of existing evaluation data on a child must include, as 
appropriate, current classroom-based, local, or State assessment data.
    Changes: We have inserted a comma following ``classroom based'' and 
``local'' in Sec.  300.305(a)(1)(ii), consistent with the statutory 
language.
    Comment: One commenter asked whether a public agency must conduct a 
reevaluation when a reevaluation is requested to determine the child's 
educational and functional needs, but the child's eligibility for 
special education and related services is not in question.
    Discussion: Section 300.305(a)(2), consistent with section 
614(c)(1)(B) of

[[Page 46644]]

the Act, states that one of the purposes of a reevaluation is to 
determine the educational needs of the child, including whether any 
additions or modifications to the special education and related 
services are needed to enable the child to meet the child's IEP goals 
and to participate in the general education curriculum. Thus, if a 
reevaluation is requested to determine the child's educational needs 
when the child's continued eligibility is not in question, the public 
agency must either conduct the reevaluation or provide notice to the 
parents as to why the public agency believes a reevaluation is 
unnecessary.
    Changes: None.
Requirements if Additional Data Are Not Needed (Sec.  300.305(d))
    Comment: One commenter requested that the regulations define or 
remove the phrase ``qualified professionals, as appropriate'' in Sec.  
300.305(d)(1).
    Discussion: Section 300.305(d)(1) follows the specific language in 
section 614(c)(1) of the Act and refers to the decision made by the IEP 
Team and ``other qualified professionals, as appropriate'' regarding 
whether additional data are needed to determine whether a child 
continues to be a child with a disability and the child's educational 
needs. The phrase, ``qualified professionals, as appropriate'' is used 
to provide flexibility for public agencies to include other 
professionals who may not be a part of the child's IEP Team in the 
group that determines if additional data are needed to make an 
eligibility determination and determine the child's educational needs. 
We believe that public agencies should have flexibility in determining 
how to define ``qualified professionals'' and we do not believe a 
definition should be included in the regulations.
    Changes: None.
Evaluations Before Change in Eligibility (Proposed Evaluations Before 
Change in Placement) (Sec.  300.305(e))
    Comment: One commenter stated that the heading for Sec.  
300.305(e), ``Evaluations before change in placement'' should be 
changed because the regulations that follow do not deal with changes in 
placement. Another commenter requested clarification regarding the 
meaning of the term ``placement.'' The commenter stated that Sec.  
300.305(e) uses the term to mean that special education services are no 
longer required, but that this is not the meaning when used in the 
context of alternative educational placements. The commenter also asked 
whether moving a child from a self-contained classroom to a resource 
room is a change of placement.
    Discussion: We agree that the heading for Sec.  300.305(e) should 
be changed to more accurately reflect the requirements in this 
subsection. We will, therefore, change the heading to ``Evaluations 
before change in eligibility,'' which is consistent with the heading in 
section 614(c)(5) of the Act.
    With regard to the commenter's question about whether moving a 
child from a self-contained classroom to a resource room would be a 
change of placement, we believe that it would be, as it would change 
the child's level of interaction with his or her nondisabled peers. 
However, as noted previously, the term ``change of placement'' should 
not have been used in connection this regulation.
    In the example provided by the commenter, generally, if a child is 
moved from a self-contained classroom to a resource room, it is likely 
that the child's current IEP cannot be implemented in the resource 
room, because the educational program in the resource room is likely to 
be substantially and materially different than the educational program 
in the self-contained classroom or the educational program in the 
resource room would change the level of interaction with nondisabled 
peers. Therefore, this situation would likely be a change of placement 
under the Act.
    Changes: We have removed the heading ``Evaluations before change in 
placement'' in Sec.  300.305(e) and replaced it with ``Evaluations 
before change in eligibility'' for clarity and consistency with the 
heading in section 614(c)(5) of the Act.
    Comment: Many commenters recommended that evaluations for other 
institutions (e.g., vocational rehabilitation agencies, colleges and 
universities) should be required before a child graduates from 
secondary school with a regular diploma or exceeds the age limit for 
FAPE. However, a number of commenters disagreed and stated that public 
agencies should not be required to conduct evaluations that will be 
used to meet the entrance or eligibility requirements of another 
institution or agency. One commenter requested clarification regarding 
whether schools must provide updated evaluations for college testing 
and admissions purposes and recommended including language in the 
regulations that explicitly states that public agencies are not 
required to conduct tests that are needed for admission to 
postsecondary programs. Another commenter recommended that the 
regulations clarify that LEAs have responsibility for providing the 
postsecondary services that are included in the summary of the child's 
academic achievement and functional performance.
    One commenter requested requiring a reevaluation before a child 
exits the school system. Another commenter recommended clarifying that 
a comprehensive evaluation is not required for children aging out of 
special education.
    A number of commenters provided recommendations on the information 
that should be included in the summary of a child's academic and 
functional performance required in Sec.  300.305(e)(3). Commenters 
suggested that the summary report should include information about the 
child's disability; the effect of the disability on the child's 
academic and functional performance (sufficient to establish 
eligibility under the Americans with Disabilities Act and Section 504 
of the Rehabilitation Act, if appropriate); any needed modifications or 
adaptations essential to the child's success; the child's most recent 
evaluations by professionals, including the child's academic 
achievement and functional performance levels; assistive technology and 
other supports used by the child; and any modifications and supports 
that would facilitate the child's successful transition to 
postsecondary education or employment.
    Discussion: We do not believe that the regulations should require 
public agencies to conduct evaluations for children to meet the 
entrance or eligibility requirements of another institution or agency 
because to do so would impose a significant cost on public agencies 
that is not required by the Act. While the requirements for secondary 
transition are intended to help parents and schools assist children 
with disabilities transition beyond high school, section 614(c)(5) in 
the Act does not require a public agency to assess a child with a 
disability to determine the child's eligibility to be considered a 
child with a disability in another agency, such as a vocational 
rehabilitation program, or a college or other postsecondary setting. 
The Act also does not require LEAs to provide the postsecondary 
services that may be included in the summary of the child's academic 
achievement and functional performance. We believe it would impose 
costs on public agencies not contemplated by the Act to include such 
requirements in the regulations.
    It would be inconsistent with the Act to require public agencies to 
conduct evaluations for children who are exiting the school system 
because they exceed the age for eligibility under State law. Section 
300.305(e)(2), consistent with

[[Page 46645]]

section 614(c)(5)(B)(i) of the Act, is clear that an evaluation in 
accordance with Sec. Sec.  300.304 through 300.311 is not required 
before the termination of a child's eligibility under the Act due to 
graduation from secondary school with a regular diploma or due to 
exceeding the age eligibility for FAPE under State law.
    Section 300.305(e)(3), consistent with section 614(c)(5)(B)(ii) of 
the Act, states that the summary required when a child graduates with a 
regular diploma or exceeds the age eligibility under State law must 
include information about the child's academic achievement and 
functional performance, as well as recommendations on how to assist the 
child in meeting the child's postsecondary goals. The Act does not 
otherwise specify the information that must be included in the summary 
and we do not believe that the regulations should include a list of 
required information. Rather, we believe that State and local officials 
should have the flexibility to determine the appropriate content in a 
child's summary, based on the child's individual needs and 
postsecondary goals.
    Changes: None.
    Comment: One commenter stated that public agencies should not be 
required to conduct an evaluation of a child who graduates with a 
regular diploma because a regular diploma means that the child has met 
the same requirements and achieved the same or similar level of 
competency as the child's nondisabled classmates. The commenter also 
requested that the regulations define a regular diploma to mean that 
the child has reached a comparable level of achievement as the child's 
nondisabled classmates.
    Discussion: Section 300.305(e)(2) specifically states that a public 
agency does not need to evaluate a child with a disability who 
graduates with a regular diploma. In addition, as noted in the Analysis 
of Comments and Changes section for subpart B, we have clarified in 
Sec.  300.101(a)(3)(iv) that a regular diploma does not include 
alternate degrees, such as a general educational development (GED) 
credential. We do not believe that any further clarification with 
respect to the definition of ``regular diploma'' is necessary.
    Changes: None.
Determination of Eligibility (Sec.  300.306)
    Comment: One commenter recommended that the regulations require 
public agencies to provide parents with copies of all evaluations at no 
cost. However, another commenter stated that evaluations are often 
lengthy and requested clarification as to whether public agencies must 
provide copies of evaluations to parents at no cost.
    Discussion: Section 300.306(a)(2), consistent with section 
614(b)(4)(B) of the Act, requires that a copy of the evaluation report 
and the documentation of determination of eligibility be given to the 
parent. We have added language to Sec.  300.306(a)(2) to clarify that 
the public agency must provide these copies at no cost to the parent.
    With regard to providing parents with copies of all evaluations, 
Sec.  300.501(a), consistent with section 615(b)(1) of the Act, affords 
parents an opportunity to inspect and review all education records with 
respect to the identification, evaluation, and educational placement of 
the child, and the provision of a FAPE to the child. Specific 
procedures for access to records are contained in the confidentiality 
provisions in Sec. Sec.  300.610 through 300.627.
    Section 300.613 requires a public agency to permit a parent to 
inspect and review any education records relating to their child that 
are collected, maintained, or used by the agency under the Act. The 
right to inspect and review records includes the right to a response 
from the agency to reasonable requests for explanations and 
interpretations of the records; the right to request that the agency 
provide copies of the records containing the information if failure to 
provide those copies would effectively prevent the parent from 
exercising the right to inspect and review the records; and the right 
to have a representative of the parent inspect and review the records. 
To the extent that the commenters may have been concerned about free 
copies of evaluation documents that would not be provided under the 
above regulations, we decline to regulate further, as we believe that 
the cited provisions adequately balance the interests of the parents 
for free copies and the public agencies in controlling costs.
    Changes: We have added language to Sec.  300.306(a)(2) to clarify 
that the evaluation report and the documentation of determination of 
eligibility must be provided at no cost to the parent.
    Comment: One commenter recommended that parents receive evaluation 
reports prior to an IEP Team meeting because the reports may have 
information that parents need to participate in making decisions about 
the IEP. The commenter stated that, if parents receive reports at 
meetings, rather than before the meetings, they cannot be active 
participants. Another commenter stated that parents should be provided 
with copies of documents related to the determination of eligibility at 
least five days prior to the eligibility determination meeting.
    Discussion: The Act does not establish a timeline for providing a 
copy of the evaluation report or the documentation of determination of 
eligibility to the parents and we do not believe that a specific 
timeline should be included in the regulations because this is a matter 
that is best left to State and local discretion. It is, however, 
important to ensure that parents have the information they need to 
participate meaningfully in IEP Team meetings, which may include 
reviewing their child's records. Section 300.613(a) requires a public 
agency to comply with a parent request to inspect and review existing 
education records, including an evaluation report, without unnecessary 
delay and before any meeting regarding an IEP, and in no case more than 
45 days after the request has been made. This includes the right to a 
response from the public agency to reasonable requests for explanations 
and interpretations of records, consistent with Sec.  300.613(b)(1).
    While it would be appropriate for parents to review documents 
related to the determination of eligibility prior to the eligibility 
determination, there is no requirement that eligibility be determined 
at an IEP Team meeting and it would not be appropriate for a public 
agency to provide documentation of the determination of eligibility 
prior to discussing a child's eligibility for special education and 
related services with the parent. Section 300.306(a)(1) and section 
614(b)(4)(A) of the Act require that a group of qualified professionals 
and the parent determine whether the child is a child with a 
disability. Therefore, providing documentation of the eligibility 
determination to a parent prior to a discussion with the parent 
regarding the child's eligibility would indicate that the public agency 
made its determination without including the parent and possibly, 
qualified professionals, in the decision.
    Changes: None.
Special Rule for Eligibility Determination (Sec.  300.306(b))
    Comment: A number of commenters recommended other factors that 
should be ruled out before a child is determined to be a child with a 
disability. Many commenters stated that a child should not be 
determined to be a child with a disability if the determinant factor is 
lack of instruction in English language development or lack of access 
to State content standards. A

[[Page 46646]]

few commenters expressed concern regarding subjective judgments about 
the definition of ``appropriate instruction.'' One commenter stated 
that determining the quality of reading instruction that children 
received in the past might be difficult, if not impossible, especially 
when children are referred for an evaluation after they enter middle 
school or are highly mobile.
    Discussion: We agree that a child should not be determined to be a 
child with a disability if the determinant factor is lack of access to 
State content standards, and we believe this is implicit in section 
614(b)(5) of the Act, which states that a child must not be determined 
to be a child with a disability if the determinant factor is lack of 
appropriate instruction in reading (including the essential components 
of reading instruction, as defined in the ESEA) or lack of instruction 
in math.
    During the Department's internal review of these regulations, we 
noted that, while Sec.  300.306(b)(1)(i) refers to lack of 
``appropriate'' instruction in reading, there is no similar qualifier 
for math. We believe it is equally important that a child not be 
determined to be a child with a disability if the determinant factor is 
the lack of ``appropriate'' instruction in math. Therefore, we will 
revise Sec.  300.306(b)(1)(ii) to make this clear.
    We are unclear what the commenter means by lack of instruction in 
English language development. However, if a child's low achievement is 
a result of limited English proficiency or lack of access to 
instruction in reading, the child must not be determined to be a child 
with a disability, consistent with section 614(b)(5) of the Act.
    Whether a child has received ``appropriate instruction'' is 
appropriately left to State and local officials to determine. While 
information regarding the quality of instruction a child received in 
the past may be helpful in determining whether a child is eligible for 
special education services, it is not essential. Schools, however, must 
ensure that the determinant factor in deciding that a child is a child 
with a disability is not a lack of appropriate instruction in reading 
and math.
    Changes: We have added ``appropriate'' in Sec.  300.306(b)(1)(ii) 
to refer to a ``lack of appropriate instruction in math.''
    Comment: Some commenters requested that we include in the 
regulations the essential components of reading instruction defined in 
the ESEA.
    Discussion: For reasons set forth elsewhere in this preamble, we 
are not adding definitions to these regulations from statutes other 
than the Act. However, the definition of the essential components of 
reading instruction from section 1208(3) of the ESEA is included here 
for reference.
    Essential Components of Reading Instruction--The term ``essential 
components of reading instruction'' means explicit and systematic 
instruction in--
    (A) Phonemic awareness;
    (B) Phonics;
    (C) Vocabulary development;
    (D) Reading fluency, including oral reading skills; and
    (E) Reading comprehension strategies.
    Changes: None.
Procedures for Determining Eligibility and Educational Need (Proposed 
Procedures for Determining Eligibility and Placement) (Sec.  
300.306(c))
    Comment: None.
    Discussion: During the review of these regulations, we noted that 
section 614(b)(4) of the Act refers to procedures for determining 
eligibility and ``educational need,'' rather than procedures for 
determining eligibility and ``placement,'' as in the heading for 
proposed Sec.  300.306(c). Therefore, we will change the heading in 
Sec.  300.306(c) to be consistent with section 614(b)(4) of the Act.
    Changes: We have replaced ``placement'' with ``educational need'' 
in the heading to Sec.  300.306(c), consistent with section 614(b)(4) 
of the Act.

Additional Procedures for Identifying Children With Specific Learning 
Disabilities

Specific Learning Disabilities (Sec.  300.307)
    Comment: Numerous commenters supported proposed Sec.  
300.307(a)(1), which allowed States to prohibit LEAs from using a 
severe discrepancy between IQ and achievement (discrepancy models) to 
determine eligibility under the specific learning disability (SLD) 
category. However, many commenters supported the use of discrepancy 
models and requested that the regulations allow discrepancy models to 
continue to be used. Numerous commenters stated that Sec.  
300.307(a)(1) exceeds statutory authority and that LEAs should be 
permitted to use discrepancy models. Many commenters cited Conf. Rpt. 
108-779 and stated that Congress did not intend to prohibit LEAs from 
using discrepancy models.
    Discussion: The Department agrees that proposed Sec.  300.307(a)(1) 
should be removed. We believe this will improve the clarity of the 
regulations and make it easier for parents and professionals to 
understand. With respect to permitting LEAs to use discrepancy models, 
even with the removal of Sec.  300.307(a)(1), States are responsible 
for developing criteria to determine whether a child is a child with a 
disability, as defined in Sec.  300.8 and section 602(3) of the Act, 
including whether a particular child meets the criteria for having an 
SLD. Under section 614(b)(6) of the Act, States are free to prohibit 
the use of a discrepancy model. States, including States that did not 
use a discrepancy model prior to the Act, are not required to develop 
criteria that permit the use of a discrepancy model.
    Changes: We have removed Sec.  300.307(a)(1) and redesignated the 
subsequent provisions in Sec.  300.307.
    Comment: Many commenters stated that response to intervention (RTI) 
should be considered one component of the evaluation process and not 
the sole component. Another commenter stated that neither a discrepancy 
model nor an RTI model alone can correctly identify children with SLD 
and that other data are needed, such as informal and formal 
assessments, histories, and observations. One commenter stated that all 
relevant and available evaluation data, such as the nature and type of 
evaluation, evaluator qualifications, and outcome data should be 
considered. One commenter recommended that RTI be tied to the general 
evaluation procedures. Another commenter recommended referencing the 
evaluation procedures in Sec.  300.309 to clarify that RTI must be used 
as one component of the evaluation process to determine eligibility for 
special education and related services. Several commenters stated that 
relying solely on an RTI model would result in larger numbers of 
children being identified with an SLD.
    Discussion: Consistent with Sec.  300.304(b) and section 614(b)(2) 
of the Act, the evaluation of a child suspected of having a disability, 
including an SLD, must include a variety of assessment tools and 
strategies and cannot rely on any single procedure as the sole 
criterion for determining eligibility for special education and related 
services. This requirement applies to all children suspected of having 
a disability, including those suspected of having an SLD.
    To simplify new Sec.  300.307(a)(2) (proposed Sec.  300.307(a)(3)) 
and remove unnecessary repetition, we will: (a) Remove the phrase ``as 
part of the

[[Page 46647]]

evaluation procedures described in Sec.  300.304;'' and (b) replace 
``process that determines if the child responds to scientific, 
research-based intervention'' with ``process based on the child's 
response to scientific, research-based intervention.'' Section 
300.311(a)(7) will also be revised, consistent with this language.
    Changes: We have revised new Sec.  300.307(a)(2) (proposed Sec.  
300.307(a)(3)) and Sec.  300.311(a)(7) for clarity.
    Comment: Several commenters recommended changing new Sec.  
300.307(a)(2) (proposed Sec.  300.307(a)(3)) to require that State 
criteria ``may'' rather than ``must'' permit a process that determines 
if a child responds to research-based intervention in order to be 
consistent with section 614(b)(6)(B) of the Act.
    Discussion: Making the requested change to new Sec.  300.307(a)(2) 
(proposed Sec.  300.307(a)(3)) would be inconsistent with the Act. 
Section 614(b)(6)(B) of the Act gives LEAs the option of using a 
process that determines if a child responds to research-based 
interventions.
    Changes: None.
    Comment: Several commenters recommended that the regulations 
include a statement that discrepancy models have been discredited and 
that there is no evidence that they can be applied in a valid and 
reliable manner. Several commenters recommended that the Department 
urge States, at least through guidance, to eliminate provisions under 
State laws that permit the use of discrepancy models.
    Discussion: We do not believe it is appropriate to add language in 
the regulations discouraging the use of discrepancy models to identify 
children with SLD. We removed current Sec.  300.541(a)(2), which 
required States to use a discrepancy model to determine whether a child 
has an SLD, because section 614(b)(6) of the Act now specifies that an 
LEA shall not be required to consider a severe discrepancy in 
determining whether a child has an SLD. New Sec.  300.307(a)(2) 
(proposed Sec.  300.307(a)(3)) requires States to permit the use of a 
process that examines whether the child responds to scientific, 
research-based interventions as part of the information reviewed to 
determine whether a child has an SLD. The regulations reflect the 
Department's position on the identification of children with SLD and 
our support for models that focus on assessments that are related to 
instruction and promote intervention for identified children.
    Changes: None.
    Comment: One commenter recommended that any guidance the Department 
issues on RTI models should emphasize that RTI represents a shift in 
how children are identified for special education services and not just 
an additional task that special education teachers must do.
    Discussion: Consensus reports and empirical syntheses indicate a 
need for major changes in the approach to identifying children with 
SLD. Models that incorporate RTI represent a shift in special education 
toward goals of better achievement and improved behavioral outcomes for 
children with SLD because the children who are identified under such 
models are most likely to require special education and related 
services. We will consider addressing this issue in future guidance.
    Changes: None.
    Comment: Many commenters stated that the elimination of discrepancy 
models would result in an inability to identify children with SLD who 
are gifted. One commenter stated that a scatter of scores should be 
used to identify children with SLD who are gifted.
    Discussion: Discrepancy models are not essential for identifying 
children with SLD who are gifted. However, the regulations clearly 
allow discrepancies in achievement domains, typical of children with 
SLD who are gifted, to be used to identify children with SLD.
    Changes: None.
    Comment: Many commenters opposed the use of RTI models to determine 
whether a child has an SLD, stating that there is a lack of scientific 
evidence demonstrating that RTI models correctly identify children with 
SLD. One commenter stated that RTI is a subjective method of 
determining whether treatment is effective and is not a treatment 
itself. A few commenters requested additional research demonstrating 
the efficacy of the wide-scale use of RTI models. Some commenters 
stated that research on the use of RTI models has been conducted only 
in the area of reading in the primary grades and pointed to the lack of 
scientific data on achievement gains or long-term success. One 
commenter stated that there is no evidence that RTI is effective for 
non-native speakers of English and minority populations. Another 
commenter stated that RTI would fail to identify young children with 
SLD. One commenter stated that when a child fails to respond to an 
intervention, it is unclear why the child failed (e.g., inappropriate 
intervention, ineffective teaching, unreasonable expectations). One 
commenter stated that longitudinal data are needed to determine if 
children who succeed in an RTI process later become eligible under the 
category of SLD based on reading fluency and comprehension 
difficulties, or difficulties in other academic areas, such as 
mathematics problem-solving or written expression.
    Discussion: The Act requires that LEAs be permitted to use a 
process that determines if a child responds to research-based 
interventions. Further, there is an evidence base to support the use of 
RTI models to identify children with SLD on a wide scale, including 
young children and children from minority backgrounds. These include 
several large-scale implementations in Iowa (the Heartland model; 
Tilly, 2002); the Minneapolis public schools (Marston, 2003); 
applications of the Screening to Enhance Equitable Placement (STEEP) 
model in Mississippi, Louisiana, and Arizona (VanDerHeyden, Witt, & 
Gilbertson, in press); and other examples (NASDE, 2005).\1\ While it is 
true that much of the research on RTI models has been conducted in the 
area of reading, 80 to 90 percent of children with SLD experience 
reading problems. The implementation of RTI in practice, however, has 
included other domains. RTI is only one component of the process to 
identify children in need of special education and related services. 
Determining why a child has not responded to research-based 
interventions requires a comprehensive evaluation.
---------------------------------------------------------------------------

    \1\ Tilly III, W. D. (2002). School psychology as a problem 
solving enterprise. In A. Thomas & J. Grimes (Eds.), Best Practices 
in School Psychology IV. Washington D.C.: National Association of 
School Psychologists; VanDerHeyden, A.M, Witt, J.C, & Gilbertson, D. 
(in press). Effect of a problem solving intervention on the accurate 
identification of children. Journal of School Psychology; Marston, 
D., Muyskens, P., Lau, M., & Canter, A. (2003). Problem-solving 
model for decision making with high incidence disabilities: The 
Minneapolis experience. Learning Disabilities Research and Practice, 
18, 187-200; Gresham, F., VanDerHeyden, A.M, & Witt, J.C. (in 
press). Response to intervention in the identification of learning 
disabilities: Empirical support and future challenges. School 
Psychology Review; National Association of State Directors of 
Special Education (2005). Response to intervention: policy 
considerations and implementations. Alexandria VA: Author.
---------------------------------------------------------------------------

    Changes: None.
    Comment: One commenter expressed concern about how LEAs will 
conduct evaluations for children suspected of having an SLD who attend 
private schools because requiring an RTI process could become entangled 
with the private school's instructional practices. The commenter 
recommended clarifying that child find does not require an LEA to use 
RTI to

[[Page 46648]]

identify children with SLD who are attending private schools.
    Discussion: An RTI process does not replace the need for a 
comprehensive evaluation. A public agency must use a variety of data 
gathering tools and strategies even if an RTI process is used. The 
results of an RTI process may be one component of the information 
reviewed as part of the evaluation procedures required under Sec. Sec.  
300.304 and 300.305. As required in Sec.  300.304(b), consistent with 
section 614(b)(2) of the Act, an evaluation must include a variety of 
assessment tools and strategies and cannot rely on any single procedure 
as the sole criterion for determining eligibility for special education 
and related services.
    It is up to each State to develop criteria to determine whether a 
child has a disability, including whether a particular child has an 
SLD. In developing their criteria, States may wish to consider how the 
criteria will be implemented with a child for whom systematic data on 
the child's response to appropriate instruction is not available. 
However, many private schools collect assessment data that would permit 
a determination of how well a child responds to appropriate 
instruction. The group making the eligibility determination for a 
private school child for whom data on the child's response to 
appropriate instruction are not available may need to rely on other 
information to make their determination, or identify what additional 
data are needed to determine whether the child is a child with a 
disability. However, under Sec.  300.306(b), a public agency may not 
identify any public or private school child as a child with a 
disability if the determinant factor is lack of appropriate instruction 
in reading or math.
    Changes: None.
    Comment: One commenter stated that adoption of new procedures for 
evaluating children suspected of having an SLD should not penalize or 
declassify children who under prior procedures were found to have an 
SLD. The commenter recommended using the requirements in Sec.  300.305, 
rather than data from a child's response to a scientific, research-
based intervention process, to consider whether a child continues to 
have an SLD.
    Discussion: An RTI process does not replace the need for a 
comprehensive evaluation, and a child's eligibility for special 
education services cannot be changed solely on the basis of data from 
an RTI process. Consistent with Sec.  300.303 and section 614(a)(2) of 
the Act, a child with a disability must be reevaluated if the public 
agency determines that the educational or related services needs of the 
child warrant a reevaluation or if the child's parent or teacher 
requests a reevaluation. A reevaluation must occur no more than once a 
year, unless the parent and the public agency agree otherwise, and at 
least once every three years, unless the parent and the public agency 
agree that a reevaluation is unnecessary, to determine whether the 
child continues to have a disability and to determine the educational 
needs of the child. Reevaluations must be conducted in accordance with 
Sec. Sec.  300.304 through 300.311. In addition, as noted in Sec.  
300.305(e)(1), except for children at the end of their secondary school 
career, a reevaluation must be done before determining that a child is 
no longer a child with a disability. In conducting a reevaluation, as 
noted in Sec.  300.305, consistent with section 614(c) of the Act, the 
IEP Team and other qualified professionals must review existing 
evaluation data on the child including evaluations provided by the 
parents of the child; current classroom-based, local, or State 
assessments and classroom-based observations; and observations by 
teachers and related services providers.
    The results of an RTI process may be one component of the 
information reviewed as part of the reevaluation process. It is up to 
each State to develop criteria to determine whether a child continues 
to have a disability, including whether a particular child has an SLD.
    States that change their eligibility criteria for SLD may want to 
carefully consider the reevaluation of children found eligible for 
special education services using prior procedures. States should 
consider the effect of exiting a child from special education who has 
received special education and related services for many years and how 
the removal of such supports will affect the child's educational 
progress, particularly for a child who is in the final year(s) of high 
school. Obviously, the group should consider whether the child's 
instruction and overall special education program have been appropriate 
as part of this process. If the special education instruction has been 
appropriate and the child has not been able to exit special education, 
this would be strong evidence that the child's eligibility needs to be 
maintained.
    Changes: None.
Alternative Research-Based Procedures (New Sec.  300.307(a)(3)) 
(Proposed Sec.  300.307(a)(4))
    Comment: Many commenters expressed support for allowing the use of 
alternative research-based procedures to determine whether a child has 
an SLD. However, a few commenters stated that the use of alternative 
research-based procedures should be removed because there is no 
indication that these procedures will assist in identifying a child 
with an SLD and because the Act does not use this term.
    Discussion: New Sec.  300.307(a)(3) (proposed Sec.  300.307(a)(4)) 
recognizes that there are alternative models to identify children with 
SLD that are based on sound scientific research and gives States 
flexibility to use these models. For example, a State could choose to 
identify children based on absolute low achievement and consideration 
of exclusionary factors as one criterion for eligibility. Other 
alternatives might combine features of different models for 
identification. We believe the evaluation procedures in section 
614(b)(2) and (b)(3) of the Act give the Department the flexibility to 
allow States to use alternative, research-based procedures for 
determining whether a child has an SLD and is eligible for special 
education and related services.
    Changes: None.
    Comment: One commenter stated that alternative research-based 
procedures are not based on scientific research and should therefore be 
removed.
    Discussion: The Department does not support the use of 
identification procedures that are not based on scientific research. 
Models or procedures that claim to assist in identifying a child with 
an SLD, but which are not based on sound scientific research, are not 
appropriate and should not be adopted by LEAs or States.
    Changes: None.
    Comment: A few commenters stated that the meaning of alternative 
research-based procedures is unclear and should be defined. One 
commenter stated that there would be inappropriate interventions and 
procedures without further clarification as to the meaning of 
alternative research-based procedures.
    Discussion: As noted in the Analysis of Comments and Changes 
section for subpart A, we have added the definition of scientifically 
based research from section 9101(37) of the ESEA to the definitions 
section of these regulations. This definition is the most appropriate 
definition to include in these regulations, given the importance 
Congress placed on aligning the Act with the ESEA. The Department does 
not intend to dictate how extensive the research must be or who, within 
an LEA or State, should determine that the research is of high quality. 
We believe that this is a matter best left to State and

[[Page 46649]]

local officials because determining the presence of an appropriate 
instructional process is part of the State-adopted criteria. This 
addition should provide the clarity requested by the commenters.
    Changes: We have added a definition of scientifically based 
research to Sec.  300.35, giving the term the definition in section 
9101(37) of the ESEA.
Consistency With State Criteria (Sec.  300.307(b))
    Comment: Several commenters expressed concern about allowing States 
to decide on the approach to determining whether a child has an SLD, 
and requested the Department develop criteria to be used across the 
nation. However, numerous commenters supported the development of State 
criteria and requiring public agencies to use the State criteria to 
determine whether a child has an SLD. Many commenters stated that this 
requirement is necessary to prevent inconsistent eligibility 
requirements among LEAs in a State. Other commenters stated that the 
requirement exceeds statutory authority and that LEAs should be allowed 
to make decisions about the criteria and methods to identify children 
with SLD.
    Discussion: The Department believes that eligibility criteria must 
be consistent across a State to avoid confusion among parents and 
school district personnel. The Department also believes that requiring 
LEAs to use State criteria for identifying children with disabilities 
is consistent with the State's responsibility under section 612(a)(3) 
of the Act to locate, identify, and evaluate all eligible children with 
disabilities in the State. We believe this provides the Department with 
the authority to require a public agency to use State criteria in 
determining whether a child has an SLD, consistent with Sec. Sec.  
300.307 through 300.311.
    Changes: None.
    Comment: A few commenters requested requiring States to adopt and 
implement only one model to determine whether a child has an SLD. 
However, several commenters requested that States and LEAs have the 
flexibility to use more than one model. One commenter noted that States 
need flexibility to determine eligibility criteria until there is 
greater understanding of the effectiveness of evidence-based protocols 
in identifying children with SLD.
    Discussion: There is nothing in the Act that would require a State 
to use one model of identification to identify a child with an SLD. We 
do not believe the regulations should include such a requirement, 
because section 614(b)(6) of the Act indicates that some flexibility in 
the selection of models of identification by LEAs can be appropriate, 
if permitted by the State.
    Changes: None.
    Comment: One commenter recommended that the Department require 
States to develop a plan to implement Statewide eligibility criteria 
that includes dissemination of research-based models, collecting data 
on the use of such models, providing professional development on the 
State's criteria, and implementing appropriate services and 
instruction.
    Discussion: We agree that it could be helpful for States to develop 
a plan to implement any new SLD criteria, as recommended by the 
commenter. However, we do not believe States should be required to 
adopt such a plan, as this is a matter that is best left to individual 
States to decide.
    Changes: None.
Group Members (Sec.  300.308)
    Comment: Several commenters requested an explanation of the use of 
``group members'' rather than ``team members'' to describe the group 
that determines whether a child suspected of having an SLD is a child 
with a disability. One commenter stated that the eligibility 
determination is an IEP Team function and, therefore, using the term 
``group members'' is inappropriate. One commenter stated that Sec.  
300.308 is confusing because the group seems to be the same as the IEP 
Team.
    Discussion: The change from ``team members'' to ``group members'' 
was made in the 1999 regulations to distinguish this group from the IEP 
Team, because the team of qualified professionals and the parent in 
Sec.  300.306(a)(1) that makes the eligibility determination does not 
necessarily have the same members as an IEP Team. In some States, this 
group of professionals may have the same individuals as the IEP Team, 
but in other States, this is not the case. We inadvertently referred to 
``team members'' in 300.309(a)(2)(ii) and, therefore, will change this 
to ``group.''
    Changes: We have changed ``team members'' to ``group'' in Sec.  
300.309(a)(2)(ii) to be consistent with Sec.  300.306(a)(1).
    Comment: Several commenters stated that the requirements for the 
qualifications of the group members in proposed Sec.  300.308(a) are 
unnecessary and should be removed because they are not included in the 
Act, are overly prescriptive, and add another set of procedural 
requirements. On the other hand, a number of commenters recommended 
additional or different qualifications that should be required of the 
group members in Sec.  300.308. Several commenters recommended that the 
group members be qualified to conduct assessments in the area of 
``cognition'' rather than ``intellectual development'' to ensure that 
specific cognitive abilities are assessed, rather than global 
intellectual abilities.
    Several commenters recommended that proposed Sec.  300.308(a)(2), 
requiring group members to apply ``critical analysis'' to the data, be 
changed to require group members to apply ``clinical'' analysis to the 
data. One commenter stated that clinical analysis should be defined and 
suggested a definition that includes professional judgment informed by 
empirical research, training, and experience, and guided by 
interpretation of patterns in evaluation findings from a number of 
sources (e.g., test scores; interviews; work samples; observational 
data; and information from parents, school personnel, and other related 
services providers).
    A few commenters recommended requiring evaluations to be completed 
by certified speech-language pathologists and school psychologists to 
ensure that qualified professionals conduct the assessments. One 
commenter recommended that the examples of the areas for diagnostic 
assessments be preceded by ``such as'' to avoid a misinterpretation 
that a speech-language pathologist, for example, is mandated to 
participate in every SLD determination.
    Several commenters agreed with the professional competencies for 
the group members described in Sec.  300.308(a). However, one commenter 
stated that ``collectively qualified'' is too broad a term and should 
be more narrowly defined. Another commenter stated that there is no way 
to ensure that the group members possess the necessary expertise unless 
there is a mechanism to determine whether the group members have the 
specified competencies in proposed Sec.  300.308(a).
    One commenter stated that, although professionals from more than 
one discipline may be qualified to administer certain assessments, they 
do not bring the same expertise to the process. One commenter asked if 
a special education teacher, a regular education teacher, and parent 
were all that would be necessary if they collectively met the 
competency requirements.
    Several commenters stated that the list of professionals in 
proposed Sec.  300.308(b) for the eligibility group should be removed 
and decisions about group members left to schools and

[[Page 46650]]

districts. Other commenters stated that the requirements for the 
eligibility group should be the same as those for the group that 
determines the eligibility of children suspected of all other 
disabilities.
    Many commenters recommended that additional or different 
professionals should be included in the group. Numerous commenters 
recommended including speech-language pathologists in the group because 
of their expertise in reading and conducting individual diagnostic 
assessments in the areas of speech and language.
    A few commenters stated that a school psychologist should be a 
required member of the group, rather than listed as ``if appropriate.'' 
One of these commenters stated that, even if school psychologists are 
no longer required to administer assessments to determine whether there 
is a discrepancy between the child's achievement and ability, school 
psychologists conduct assessments related to cognitive functioning, 
behavior, and other issues that may affect a child's learning.
    Numerous commenters recommended requiring the special education 
teacher who is part of the eligibility group to have expertise in the 
area of SLD. However, one commenter stated that it is unnecessary for a 
special education teacher to be part of the group because the teacher 
would not have any instructional experience with the yet-to-be 
identified child and nothing in the Act requires special education 
teachers to possess any diagnostic expertise in the area of SLD.
    One commenter recommended that the group include a teacher with 
experience in teaching children who are failing or at-risk for failing, 
in addition to a general education and special education teacher. 
Several commenters recommended adding a reading specialist as a 
required member. A few commenters recommended including a social worker 
as a required member, stating that it is important that one of the 
members examine the child's home and community environment to rule out 
environmental and economic factors as a primary source of the child's 
learning difficulties. Another commenter recommended adding a guidance 
counselor as a required member. One commenter recommended including a 
school nurse and stated that a school nurse can contribute information 
about educationally relevant medical findings.
    One commenter stated that a reading teacher and an educational 
therapist should always be included in the group. A few commenters were 
not familiar with the role of an educational therapist and requested a 
definition or elimination of the term from the list of ``other 
professionals.'' One commenter stated that two of the three 
professionals listed as ``other professionals'' (school psychologist, 
reading teacher, educational therapist) are not credentialed and 
questioned why they were included in the group.
    Discussion: The Department has considered the diversity of comments 
received and, given the lack of consensus about which individuals 
should be included in the group that makes eligibility determinations 
for children suspected of having an SLD, believes that the requirements 
in current Sec.  300.540 should be retained. Current Sec.  300.540 
states that the eligibility group for children suspected of having SLD 
must include the child's parents and a team of qualified professionals, 
which must include the child's regular teacher (or if the child does 
not have a regular teacher, a regular classroom teacher qualified to 
teach a child of his or her age) or for a child of less than school 
age, an individual qualified by the SEA to teach a child of his or her 
age; and at least one person qualified to conduct individual diagnostic 
examinations of children, such as a school psychologist, speech-
language pathologist or remedial reading teacher. We believe this 
allows decisions about the specific qualifications of the members to be 
made at the local level, so that the composition of the group may vary 
depending on the nature of the child's suspected disability, the 
expertise of local staff, and other relevant factors. For example, for 
a child suspected of having an SLD in the area of reading, it might be 
important to include a reading specialist as part of the eligibility 
group. However, for a child suspected of having an SLD in the area of 
listening comprehension, it might be appropriate for the group to 
include a speech-language pathologist with expertise in auditory 
processing disorders. Current Sec.  300.540 provides flexibility for 
schools and districts, and ensures that the group includes individuals 
with the knowledge and skills necessary to interpret the evaluation 
data and make an informed determination as to whether the child is a 
child with an SLD, and the educational needs of the child.
    Changes: Section 300.308 has been changed to include the 
requirements from current Sec.  300.540.
Determining the Existence of a Specific Learning Disability (Sec.  
300.309)
    Comment: One commenter stated that there is no authority in the Act 
for the SLD eligibility requirements outlined in Sec.  300.309.
    Discussion: We agree that the statutory language is broad and does 
not include the specific requirements to determine whether a child 
suspected of having an SLD is a child with a disability. The purpose of 
these regulations, however, is to provide details to assist States in 
the appropriate implementation of the Act. We believe the requirements 
in Sec.  300.309 are necessary to ensure that States have the details 
necessary to implement the Act.
    Changes: None.
    Comment: One commenter stated that RTI was Congress' preference for 
determining eligibility under SLD, and therefore, the criteria for RTI 
should be the first paragraph of Sec.  300.309 (Determining the 
existence of a specific learning disability).
    Discussion: The Department believes that the criteria in Sec.  
300.309 are presented in a logical order and are consistent with the 
Act.
    Changes: None.
    Comment: One commenter stated that a discrepancy between 
intellectual ability and achievement can differentiate between children 
with disabilities and children with general low achievement, and noted 
that the problems with discrepancy models have been in implementation, 
rather than in the concept itself for identifying children with SLD.
    Discussion: There is a substantial research base summarized in 
several recent consensus reports (Donovan & Cross, 2002; Bradley et 
al., 2003) and meta-analyses (Hoskyn & Swanson, 2000; Steubing et al., 
2002) that does not support the hypothesis that a discrepancy model by 
itself can differentiate children with disabilities and children with 
general low achievement.\2\ Therefore, we disagree with the comment 
because such a differentiation is not possible with any single 
criterion, including RTI.
---------------------------------------------------------------------------

    \2\ Donovan, M.S., & Cross, C.T. (2002). Minority students in 
special and gifted education. Washington, DC: National Academy 
Press; Bradley, L., Danielson, & Hallahan, D.P. (Eds.). 
Identification of learning disabilities: Research to practice. 
Mahway, NJ: Erlbaum; Hoskyn, M., & Swanson, H.L (2000). Cognitive 
processing of low achievers and children with reading disabilities: 
A selective meta-analytic review of the published literature. The 
School Psychology Review, 29, 102-119; Steubing, K.K., Fletcher, 
J.M., LeDoux, J.M., Lyon, G.R., Shaywitz, S.E., & Shoywitz B.A. 
(2002). Validity of IQ-discrepancy, classifications of reading 
disabilities: A meta-analysis. American Educational Research 
Journal, 39, 469-518.
---------------------------------------------------------------------------

    Changes: None.
    Comment: One commenter requested retaining the language in current 
Sec.  300.541, regarding the use of discrepancy models.

[[Page 46651]]

    Discussion: Section 614(b)(6) of the Act prohibits States from 
requiring a discrepancy approach to identify children with SLD. Current 
Sec.  300.541 requires a discrepancy determination and is, therefore, 
inconsistent with the Act.
    Changes: None.
    Comment: One commenter requested that the eligibility group be 
allowed to consider the results from standardized, individualized 
testing (not just criterion-based testing or functional assessments) in 
the eligibility determination.
    Discussion: Nothing in the Act or these regulations would preclude 
the eligibility group from considering results from standardized tests 
when making eligibility determinations.
    Changes: None.
    Comment: Many commenters recommended adding the concept of 
psychological processing disorders to the eligibility criteria in Sec.  
300.309. Several commenters noted that the criteria in Sec.  300.309 do 
not fully address the definition of SLD in Sec.  300.8(c)(10), which 
includes a processing disorder in one or more of the basic 
psychological processes. Several commenters stated that, without 
requiring documentation of a basic psychological processing disorder, 
the number of children identified with SLD will significantly increase 
and the use of assessment tools that have the potential to 
significantly guide instruction will decrease. Several commenters 
stated that failure to consider individual differences in cognitive 
processing skills reverses more than 20 years of progress in cognitive 
psychology and developmental neuroscience. One commenter stated that 
identifying a basic psychological processing disorder would help ensure 
that children identified with an SLD are not simply victims of poor 
instruction. One commenter stated that the shift away from requiring 
diagnostic assessments in the area of cognition would make it 
conceptually impossible to document that a child has a disorder in one 
or more of the basic psychological processes, as required in the 
definition of SLD in Sec.  300.8(c)(10).
    Discussion: The Department does not believe that an assessment of 
psychological or cognitive processing should be required in determining 
whether a child has an SLD. There is no current evidence that such 
assessments are necessary or sufficient for identifying SLD. Further, 
in many cases, these assessments have not been used to make appropriate 
intervention decisions. However, Sec.  300.309(a)(2)(ii) permits, but 
does not require, consideration of a pattern of strengths or 
weaknesses, or both, relative to intellectual development, if the 
evaluation group considers that information relevant to an 
identification of SLD. In many cases, though, assessments of cognitive 
processes simply add to the testing burden and do not contribute to 
interventions. As summarized in the research consensus from the OSEP 
Learning Disability Summit (Bradley, Danielson, and Hallahan, 2002), 
``Although processing deficits have been linked to some SLD (e.g., 
phonological processing and reading), direct links with other processes 
have not been established. Currently, available methods for measuring 
many processing difficulties are inadequate. Therefore, systematically 
measuring processing difficulties and their link to treatment is not 
yet feasible * * *. Processing deficits should be eliminated from the 
criteria for classification * * *.'' (p. 797).\3\ Concerns about the 
absence of evidence for relations of cognitive discrepancy and SLD for 
identification go back to Bijou (1942; \4\ see Kavale, 2002) \5\. 
Cronbach (1957) \6\ characterized the search for aptitude by treatment 
interactions as a ``hall of mirrors,'' a situation that has not 
improved over the past few years as different approaches to assessment 
of cognitive processes have emerged (Fletcher et al., 2005; Reschly & 
Tilly, 1999) \7\.
---------------------------------------------------------------------------

    \3\ Bradley, R., Danielson, L., & Hallahan, D.P. (Eds.). (2002). 
Identification of learning disabilities: Research to practice. 
Mahwah, NJ: Erlbaum.
    \4\ Bijou, S.W. (1942). The psychometric pattern approach as an 
aid to clinical assessment--a review. American Journal of Mental 
Deficiency, 46, 354-362.
    \5\ Kavale, K. (2002). Discrepancy models in the identification 
of learning disabilities. In R. Bradley, L. Danielson, & D.P. 
Hallahan (Eds.). Identification of learning disabilities: Research 
to practice (pp. 370-371). Mahwah, NJ: Erlbaum.
    \6\ Cronbach, L.J. (1957). The two disciplines of scientific 
psychology. American Psychologist, 12, 671-684.
    \7\ Fletcher, J.M., Denton, C., & Francis, D.J. (2005). Validity 
of alternative approaches for the identification of LD: 
Operationalizing unexpected underachievement. Journal of Learning 
Disabilities, 38, 545-552; Reschly, D.J., & Tilly, W.D. (1999). 
Reform trends and system design alternatives. In D.J. Reschly, W.D. 
Tilly, III, and J.P. Grimes (Eds.). Special education in transition: 
Functional assessment and noncategorical programming. Longmont, CO: 
Sopris West.
---------------------------------------------------------------------------

    Changes: None.
    Comment: Several commenters requested that the regulations include 
a definition of ``intellectual development.''
    Discussion: We do not believe it is necessary to define 
``intellectual development'' in these regulations. Intellectual 
development is included in Sec.  300.309(a)(2)(ii) as one of three 
standards of comparison, along with age and State-approved grade-level 
standards. The reference to ``intellectual development'' in this 
provision means that the child exhibits a pattern on strengths and 
weaknesses in performance relative to a standard of intellectual 
development such as commonly measured by IQ tests. Use of the term is 
consistent with the discretion provided in the Act in allowing the 
continued use of discrepancy models.
    Changes: None.
    Comment: Several commenters stated that intra-individual 
differences, particularly in cognitive functions, are essential to 
identifying a child with an SLD and should be included in the 
eligibility criteria in Sec.  300.309.
    Discussion: As indicated above, an assessment of intra-individual 
differences in cognitive functions does not contribute to 
identification and intervention decisions for children suspected of 
having an SLD. The regulations, however, allow for the assessment of 
intra-individual differences in achievement as part of an 
identification model for SLD. The regulations also allow for the 
assessment of discrepancies in intellectual development and 
achievement.
    Changes: None.
    Comment: One commenter requested guidance on how to determine 
whether a child was provided with learning experiences appropriate for 
the child's age, as required in Sec.  300.309(a)(1).
    Discussion: While such guidance might be helpful, we believe SEAs 
and LEAs are in the best position to provide guidance on age-
appropriate learning experiences.
    Changes: None.
    Comment: Several commenters expressed support for the requirements 
in Sec.  300.309(a)(1) and stated that the first element of determining 
eligibility for an SLD is a finding that the child does not achieve 
commensurate with the child's age in one or more of the eight areas 
when provided with learning experiences appropriate to the child's age. 
However, several commenters requested requiring that eligibility 
determinations for an SLD include evidence that the child's achievement 
level is not commensurate with the child's age and ability (emphasis 
added). One commenter indicated that knowledge of a child's ability 
level is important to ensure that a determination is not based on 
deficits in areas not related to cognitive processing (e.g., lack of 
opportunity to learn, social or emotional disturbances), and to prevent 
misdiagnosis of children with mental

[[Page 46652]]

retardation and SLD. One commenter stated that Sec.  300.309(a)(1) 
would allow any child who failed to achieve commensurate with his or 
her age to be considered to have an SLD, and this will increase the 
number of children referred for special education and related services.
    Several commenters expressed concern that the eligibility 
determination for SLD is based on whether the child achieves 
commensurate with his or her age because current practice uses 
normative data that are based on grade level. These commenters 
recommended clarifying that grade level or classmate performance should 
also be considered.
    Discussion: The first element in identifying a child with SLD 
should be a child's mastery of grade-level content appropriate for the 
child's age or in relation to State-approved grade-level standards, not 
abilities. This emphasis is consistent with the focus in the ESEA on 
the attainment of State-approved grade-level standards for all 
children. State-approved standards are not expressed as ``norms'' but 
represent benchmarks for all children at each grade level. The 
performance of classmates and peers is not an appropriate standard if 
most children in a class or school are not meeting State-approved 
standards. Furthermore, using grade-based normative data to make this 
determination is generally not appropriate for children who have not 
been permitted to progress to the next academic grade or are otherwise 
older than their peers. Such a practice may give the illusion of 
average rates of learning when the child's rate of learning has been 
below average, resulting in retention. A focus on expectations relative 
to abilities or classmates simply dilutes expectations for children 
with disabilities.
    We will modify Sec.  300.309(a)(1) to clarify that, as a first 
element in determining whether a child has an SLD, the group must 
determine that the child does not demonstrate achievement that is 
adequate for the child's age or the attainment of State-approved grade-
level standards, when provided with learning experiences and 
instruction appropriate for the child's age or State-approved grade-
level standards in one or more of the areas listed in Sec.  
300.309(a)(1). The reference to ``State-approved grade-level 
standards'' is intended to emphasize the alignment of the Act and the 
ESEA, as well as to cover children who have been retained in a grade, 
since age level expectations may not be appropriate for these children. 
The reference to ``instruction'' will be added to emphasize that 
children may not be identified as having SLD if there is no 
documentation of appropriate instruction, consistent with the Act and 
the ESEA. Consistent with this change, we will add a reference to 
``State-approved grade-level standards'' in Sec. Sec.  300.309(a)(2)(i) 
and (ii). We will also combine proposed Sec.  300.311(a)(5) and (6) 
into Sec.  300.311(a)(5) to ensure consistency with the requirements in 
Sec.  300.309(a).
    Changes: We have modified Sec.  300.309(a)(1) and Sec. Sec.  
300.309(a)(2)(i) and (ii), and combined proposed Sec.  300.311(a)(5) 
and (6) into Sec.  300.311(a)(5) to ensure consistency with the 
requirements in Sec.  300.309(a).
    Comment: Several commenters expressed support for including reading 
fluency in the list of areas to be considered when determining whether 
a child has an SLD. However, several commenters recommended removing 
reading fluency from the list in Sec.  300.309(a)(1), stating that a 
weakness in reading fluency, in isolation, does not indicate a reading 
disability.
    Discussion: No assessment, in isolation, is sufficient to indicate 
that a child has an SLD. Including reading fluency in the list of areas 
to be considered when determining whether a child has an SLD makes it 
more likely that a child who is gifted and has an SLD would be 
identified. Fluency assessments are very brief and highly relevant to 
instruction. We, therefore, do not believe that reading fluency should 
be removed from Sec.  300.309(a)(1).
    Changes: None.
    Comment: Many commenters stated that eligibility criteria based on 
RTI models will result in dramatic increases in referrals, special 
education placements, and legal problems. One commenter stated that the 
eligibility criteria in Sec.  300.309 do not provide sufficient checks 
and balances to ensure that only those children who truly require 
special education are identified as having SLD. A few commenters stated 
that using an RTI model would result in incorrectly identifying 
underachieving children as having SLD.
    Discussion: We do not believe that eligibility criteria based on 
RTI models will result in dramatic increases in referrals and special 
education placements. Well-implemented RTI models and models that 
identify problems early and promote intervention have reduced, not 
increased, the number of children identified as eligible for special 
education services and have helped raise achievement levels for all 
children in a school.\8\ We believe that the regulations do provide 
sufficient checks to ensure that only children who need special 
education and related services are identified as having SLD.
---------------------------------------------------------------------------

    \8\ Burns, M., Appleton, J., Stehouwer, J. (2005). Meta-analytic 
review of responsiveness-to-intervention research: Examining field-
based and research-implemented models. Journal of Psychoeducational 
Assessment, 23, 381-394.
---------------------------------------------------------------------------

    Changes: None.
    Comment: Several commenters stated that the language in Sec.  
300.309(a)(2)(ii) is very confusing and should be rewritten. Many 
commenters stated that the word ``or'' instead of ``and'' should be 
used between Sec.  300.309(a)(2)(i) and Sec.  300.309(a)(2)(ii), 
because otherwise a child could be identified with an SLD because he or 
she failed to meet passing criteria on a State assessment, and failure 
to make sufficient progress on a State-approved assessment alone is not 
grounds for a determination that a child has an SLD. Several commenters 
stated that the phrase, ``pattern of strengths and weaknesses in 
performance, achievement, or both'' is a typographical error because it 
is repeated twice.
    Discussion: We do not agree that ``and'' should be used instead of 
``or'' between Sec.  300.309(a)(2)(i) and (ii), because this would 
subject the child to two different identification models. We agree that 
failing a State assessment alone is not sufficient to determine whether 
a child has an SLD. However, failing a State assessment may be one 
factor in an evaluation considered by the eligibility group. As 
required in Sec.  300.304(b)(1), consistent with section 614(b)(2)(A) 
of the Act, the evaluation must use a variety of assessment tools and 
strategies to gather relevant information about the child. Further, 
Sec.  300.304(b)(2), consistent with section 614(b)(2)(B) of the Act, 
is clear that determining eligibility for special education and related 
services cannot be based on any single measure or assessment as the 
sole criterion for determining whether a child is a child with a 
disability.
    We agree that Sec.  300.309(a)(2)(ii) could be stated more clearly 
and will rewrite it to state that the eligibility group can determine 
that a child has an SLD if the child meets the criteria in Sec.  
300.309(a)(1) and exhibits a pattern of strengths and weaknesses in 
performance, achievement, or both, relative to age and State-approved 
grade-level standards, or intellectual development, that is determined 
by the group to be relevant to the identification of an SLD.
    Changes: We have changed Sec.  300.309(a)(2)(ii) for clarity.

[[Page 46653]]

    Comment: Several commenters requested a definition of ``State-
approved results.'' One commenter stated that the language was 
extremely confusing and that ``State-approved results'' could be 
interpreted to mean approved results that are equivalent to proficiency 
on State assessments under the ESEA, and this could lead to eligibility 
determinations for a very large group of older children with poor 
reading performance for whom it would be nearly impossible to make 
sufficient progress to become proficient readers. This commenter 
recommended changing the language to refer to a child's failure to 
achieve a rate of learning to make sufficient progress based on 
``State-defined criteria.'' Another commenter recommended substituting 
``State achievement standards'' for ``State approved results.''
    Discussion: The intention is to refer to State assessments approved 
under the ESEA. We have changed ``State-approved results'' to ``State-
approved grade-level standards.'' We believe this change adequately 
addresses the commenters concerns.
    Changes: We have removed ``State-approved results'' and inserted in 
its place ``State-approved grade-level standards'' in Sec.  300.309 and 
Sec.  300.311.
    Comment: One commenter stated that including ``State-approved 
results'' in Sec.  300.309(a)(2)(i) means that there is no Federal 
definition of SLD.
    Discussion: States must develop criteria for determining whether a 
child has an SLD that are consistent with the Federal requirements in 
Sec. Sec.  300.307 through 300.311 and the definition of SLD in Sec.  
300.8(c)(10).
    Changes: None.
    Comment: A few commenters stated that using the criteria in Sec.  
300.309(a)(2), a child could meet State standards and still be 
identified as a child with an SLD.
    Discussion: We agree with the commenters. Accelerated growth 
toward, and mastery of, State-approved grade-level standards are goals 
of special education. Furthermore, as stated in Sec.  300.101, the fact 
that a child is advancing from grade to grade does not make a child 
with a disability ineligible for special education and related 
services. However, consistent with Sec.  300.8, the group making the 
eligibility determination must conclude both that the child has an SLD 
and, that, because of that disability, the child needs special 
education and related services.
    Changes: None.
    Comment: Many commenters requested more detail and specific 
guidelines on RTI models, such as information on who initiates the RTI 
process and who should be involved in the process; how one ensures 
there is a strong leader for the RTI process; the skills needed to 
implement RTI models; the role of the general education teacher; how to 
determine that a child is not responsive to instruction, particularly a 
child with cultural and linguistic differences; the number of different 
types of interventions to be tried; the responsibility for monitoring 
progress; the measurement of treatment integrity; and ways to document 
progress. One commenter stated that it is imperative that the 
regulations allow the flexibility necessary to accommodate the array of 
RTI models already in use.
    Several commenters requested that the Department define and set a 
standard for responsiveness that calls for demonstrated progress and 
improvement in the rate of learning, to indicate that a child can 
function in the classroom. Several commenters stated that there would 
be a dramatic increase in the number of children identified with an SLD 
without a clearly defined system in place.
    Discussion: There are many RTI models and the regulations are 
written to accommodate the many different models that are currently in 
use. The Department does not mandate or endorse any particular model. 
Rather, the regulations provide States with the flexibility to adopt 
criteria that best meet local needs. Language that is more specific or 
prescriptive would not be appropriate. For example, while we recognize 
that rate of learning is often a key variable in assessing a child's 
response to intervention, it would not be appropriate for the 
regulations to set a standard for responsiveness or improvement in the 
rate of learning. As we discussed earlier in this section, we do not 
believe these regulations will result in significant increases in the 
number of children identified with SLD.
    Changes: None.
    Comment: One commenter stated that, without additional clarity, 
eligibility criteria will vary substantially among States and that 
States will have definitions that are suited to their individual 
preferences, rather than a universal sense of what constitutes 
eligibility under SLD based on the research and national standards of 
professional practice.
    Discussion: State eligibility criteria must meet the requirements 
in Sec. Sec.  300.307 through 300.111 and LEAs must use these State-
adopted criteria. We believe that, although these provisions allow 
States some flexibility in how children with SLD are identified, the 
requirements in these provisions will ensure that SLD criteria do not 
vary substantially across States.
    Changes: None.
    Comment: One commenter stated that, without more clarity in the 
requirements for RTI models, there would be an increase in the number 
of eligibility disputes between parents and school districts.
    Discussion: We do not believe more clarity in the requirements for 
RTI models is necessary. States can avoid disputes over eligibility 
determinations by developing clear criteria, consistent with the 
regulatory parameters, and providing staff with the necessary guidance 
and support to implement the criteria.
    Changes: None.
    Comment: One commenter urged the Department to encourage States to 
convene a group of education, disability, and parent stakeholders to 
discuss and design a model approach to early identification of children 
with SLD.
    Discussion: The Department agrees that it is important to identify 
children with SLD early and to provide the necessary instruction and 
supports to avoid referrals to special education. The extent to which 
States involve other interested parties (e.g., disability groups, 
parent groups) in the design or development of such a system is a 
decision that should be made by each State.
    Changes: None.
    Comment: A few commenters stated that professional development 
requirements to implement RTI models should be incorporated into the 
regulations so RTI models are not haphazardly implemented. One 
commenter stated that before RTI can be used systematically as part of 
the special education identification process, school districts must 
have administrative support at all levels, ongoing professional 
development for all staff, and coordination with institutions of higher 
education. Several commenters recommended encouraging States to develop 
efficient, collaborative evaluation systems. One commenter recommended 
requiring regular education teachers to address the needs of children 
with different learning styles, identify early and appropriate 
interventions for children with behavioral challenges, and understand 
and use data and assessments to improve classroom practices and 
learning.
    Discussion: We agree that administrative support, professional 
development, and coordination with teacher training programs would be

[[Page 46654]]

helpful in the effective implementation of RTI models. We also agree 
that efficient and collaborative evaluation systems should be 
developed, and that all teachers, including regular education teachers, 
should be trained to address the needs of children with different 
learning styles, identify early and appropriate interventions for 
children with behavioral challenges, and understand and use data and 
assessments to improve classroom practices and learning. However, 
professional development requirements are a State responsibility, 
consistent with Sec.  300.156 and section 612(a)(14) of the Act, and it 
would be inappropriate for the Department to include specific 
professional development requirements in these regulations.
    Changes: None.
    Comment: One commenter stated that if a State prohibits the use of 
a discrepancy model, there would not be sufficient time or funds 
necessary to effectively train staff. Several commenters asked that 
there be a transition period so that personnel can be adequately 
trained in RTI or other forms of assessment and observation.
    Discussion: It is not necessary for these regulations to require a 
transition period for implementing RTI models, particularly because 
there are many schools and districts currently implementing RTI models. 
Under the requirements in section 614(b)(6) of the Act, which took 
effect July 1, 2005, States should have developed mechanisms to permit 
LEAs to use RTI models. States may need to make adjustments based on 
these final regulations. Nothing in these regulations requires an LEA 
to drop current practices in favor of a new model with no transition. 
Obviously, a plan would need to be developed when changing to an RTI 
model, including strategies for implementation and professional 
development.
    Changes: None.
    Comment: Many commenters stated that the use of RTI models would be 
costly, requiring massive staff training and resources. Many commenters 
recommended ways in which the Department could support States in 
improving identification and interventions for children with SLD. 
Commenters' recommendations included the following: long-term, 
Statewide pilot studies on assessments and interventions for children 
with SLD; methods to increase the use of RTI; guidance on establishing 
appropriate timelines for instructional interventions; and information 
on new scientifically based approaches to identifying children with 
SLD.
    Discussion: The Department recognizes the need for technical 
assistance and training to implement RTI models and is directing 
technical assistance funds under Part D of the Act, administered by the 
Department's Office of Special Education Programs (OSEP), toward this 
effort. OSEP plans to develop and disseminate an RTI resource kit and 
devote additional resources to technical assistance providers to assist 
States in implementing RTI models. OSEP will also continue to identify 
and develop model RTI implementation sites and evaluate SLD 
identification models in math and reading. In addition, the 
Comprehensive Center on Instruction, jointly funded by OSEP and the 
Office of Elementary and Secondary Education (OESE), will provide 
technical assistance to States on RTI implementation.
    Changes: None.
    Comment: Many commenters supported examining the pattern of 
strengths and weaknesses in determining whether a child is considered 
to have an SLD. A number of commenters stated that it is important that 
groups use a process to determine whether a child responds to 
scientific, research-based interventions, as well as consider relevant, 
empirically validated patterns of strengths and weaknesses in 
achievement, performance, or both, relative to intellectual 
development. One commenter stated that ``pattern of strengths and 
weaknesses in performance'' in Sec.  300.309(a)(2)(ii) is 
insufficiently defined and without a clearer definition of ``pattern,'' 
schools will continue the wait-to-fail model. One commenter recommended 
clarifying the meaning of ``weakness,'' stating that weakness does not 
mean failure, and that there may be specific actions that could address 
weaknesses in performance that would result in failure if left alone.
    Discussion: Patterns of strengths and weaknesses commonly refer to 
the examination of profiles across different tests used historically in 
the identification of children with SLD. We believe that the meaning of 
``pattern of strengths and weaknesses'' is clear and does not need to 
be clarified in these regulations.
    Changes: None.
    Comment: Some commenters stated that using a pattern of strengths 
and weaknesses in a child's performance to identify a child with an SLD 
could be misinterpreted to identify children, other than children with 
disabilities, who are underperforming due to cultural factors, 
environmental or economic disadvantage, or low effort.
    Discussion: Section 300.309(a)(3) is clear that children should not 
be identified with SLD if the underachievement is primarily the result 
of a visual, hearing, or motor disability; mental retardation; 
emotional disturbance; cultural factors; or environmental or economic 
disadvantage. The eligibility group makes the determination after the 
evaluation of the child is completed. Therefore, we believe that there 
is minimal risk that a child who is underachieving due to these factors 
will be identified as having an SLD.
    Changes: None.
    Comment: Some commenters recommended using ``cognitive ability'' in 
place of ``intellectual development'' because ``intellectual 
development'' could be narrowly interpreted to mean performance on an 
IQ test. One commenter stated that the term ``cognitive ability'' is 
preferable because it reflects the fundamental concepts underlying SLD 
and can be assessed with a variety of appropriate assessment tools. A 
few commenters stated that the reference to identifying a child's 
pattern of strengths and weaknesses that are not related to 
intellectual development should be removed because a cognitive 
assessment is critical and should always be used to make a 
determination under the category of SLD.
    Discussion: We believe the term ``intellectual development'' is the 
appropriate reference in this provision. Section 300.309(a)(2)(ii) 
permits the assessment of patterns of strengths and weakness in 
performance, including performance on assessments of cognitive ability. 
As stated previously, ``intellectual development'' is included as one 
of three methods of comparison, along with age and State-approved 
grade-level standards. The term ``cognitive'' is not the appropriate 
reference to performance because cognitive variation is not a reliable 
marker of SLD, and is not related to intervention.
    Changes: None.
    Comment: One commenter reviewed the list of factors in Sec.  
300.309(a)(3) that must be ruled out as primary reasons for a child's 
performance and asked whether children with other health impairments 
(OHI), traumatic brain injury (TBI), or speech impairments would 
overlap with the SLD definition. Several commenters noted that many 
children with hearing, visual, or motor disabilities; mental 
retardation; or emotional disturbances (ED) also have concomitant 
learning disabilities that go unidentified, and that these children end 
up with lower academic and functional achievement levels than they

[[Page 46655]]

should because an important contributing factor to their learning 
problems has not been addressed. Several commenters recommended adding 
language to the regulations stating that a child with a disability 
other than an SLD may also be identified with an SLD.
    Discussion: Children with one of the disabilities in Sec.  300.8 
should be identified as a child with a disability using the category 
that is most appropriate for the child. Some children may be identified 
under other disability categories, such as OHI, TBI, ED, or speech 
impairment, and may also have low achievement and even meet SLD 
criteria. Services must meet the child's needs and cannot be determined 
by the child's eligibility category. We believe it is unnecessary to 
add language regarding SLD as a concomitant disability.
    Changes: None.
    Comment: One commenter asked what kind of assessment identifies 
culture as a primary cause of academic performance deficits and 
recommended removing the requirement in Sec.  300.309(a)(3)(iv) unless 
there are objective methods to determine whether a child's low 
performance is a result of cultural factors.
    Discussion: The identification of the effect of cultural factors on 
a child's performance is a judgment made by the eligibility group based 
on multiple sources of information, including the home environment, 
language proficiency, and other contextual factors gathered in the 
evaluation. The Department believes that the identification of children 
with SLD will improve with models based on systematic assessments of a 
child's response to appropriate instruction, the results of which are 
one part of the information reviewed during the evaluation process to 
determine eligibility for special education and related services. 
States and public agencies must follow the evaluation procedures in 
Sec. Sec.  300.304 and 300.305 and section 614(b) of the Act, including 
using assessments and other evaluation materials that do not 
discriminate on a racial or cultural basis, consistent with Sec.  
300.304(c)(1)(i) and section 614(b)(3)(A)(i) of the Act.
    Changes: None.
    Comment: Many commenters recommended that limited English 
proficiency be among the factors that the eligibility group must rule 
out as a primary factor affecting a child's performance.
    Discussion: Section 300.306(b)(1)(iii), consistent with section 
614(b)(5)(C) of the Act, is clear that a child must not be identified 
as a child with a disability if the determinant factor for that 
determination is limited English proficiency. However, we agree that it 
is important to re-emphasize this requirement in Sec.  300.309 and will 
add this to the list of factors that the eligibility group must rule 
out as a primary factor affecting a child's performance.
    Changes: We have added a new paragraph (vi) to Sec.  300.309(a)(3) 
to include ``limited English proficiency'' in the list of factors that 
must be ruled out as a primary factor affecting a child's performance 
before determining that a child is eligible for special education 
services under the category of SLD.
    Comment: Numerous commenters supported the requirement in Sec.  
300.309(b)(1) for data demonstrating that a child suspected of having 
an SLD has been provided with high-quality, research-based instruction 
in regular education settings delivered by qualified personnel. Several 
commenters stated that this requirement should apply to all children 
and asked why this requirement is confined to only children suspected 
of having SLD. One commenter stated that if schools would use proven 
best practices, there would be fewer children in need of special 
education in the later grades. However, one commenter stated that it is 
incorrect to assume that any child who is not responding to 
interventions must have an SLD when there are a myriad of reasons why 
children may not be responding to instruction. One commenter 
recommended adding ``to the extent practicable'' to acknowledge that 
scientific research-based interventions are not available in many 
areas, particularly in mathematics. One commenter recommended 
decreasing the emphasis on research-based instruction.
    Discussion: Sections 300.306(b)(1)(i) and (ii), consistent with 
section 614(b)(5)(A) and (B) of the Act, specifically state that 
children should not be identified for special education if the 
achievement problem is due to lack of appropriate instruction in 
reading or mathematics. This issue is especially relevant to SLD 
because lack of appropriate instruction in these areas most commonly 
leads to identifying a child as having an SLD. All children should be 
provided with appropriate instruction provided by qualified personnel. 
This is an important tenet of the Act and the ESEA. Both the Act and 
the ESEA focus on doing what works as evidenced by scientific research 
and providing children with appropriate instruction delivered by 
qualified teachers.
    Changes: None.
    Comment: We received a number of comments concerning the 
requirement for high-quality, research-based instruction provided by 
qualified personnel. One commenter stated that it would be difficult 
for rural school districts to meet this requirement because of staffing 
requirements in the regular education setting. Several commenters 
stated that the requirement for high-quality, research-based 
instruction exceeds statutory authority and should be removed, because 
it provides a basis for challenging any determination under the 
category of SLD. One commenter asked for clarification regarding the 
legal basis for providing high-quality, research-based instruction if 
the child is not determined eligible for special education. Another 
commenter stated that attorneys will read Sec.  300.309(b) as providing 
a legal entitlement to ESEA, research-based instruction and data-based 
documentation for every child considered for eligibility under the 
category of SLD, and that when this standard is not met, will bring the 
matter to a due process hearing and request compensatory education.
    Numerous commenters requested a definition of high-quality, 
research-based instruction. One commenter asked who validates that the 
research meets the highest quality. Another commenter asked that the 
regulations specify how much research a program must undergo before it 
is deemed to be research-based. One commenter stated that the 
Department must address how States determine whether a child has been 
provided with a high-quality, research-based instructional program; 
whether appropriate classroom interventions were delivered; and whether 
an intervention has been successful. One commenter stated that the 
absence of additional clarification would result in great disparity in 
States' policies and lead to inappropriate interventions and 
procedures. One commenter recommended that there be evidence that the 
instruction is effective for the child's age and cultural background.
    A few commenters recommended that children who are not progressing 
because they have not received research-based instruction by a 
qualified teacher should immediately receive intensive, high-quality, 
research-based instruction by qualified personnel. One commenter 
expressed concern that Sec.  300.309(b) restricts referrals to only 
those children who have received high-quality, research-based 
instruction from qualified teachers. One commenter stated that a 
child's eligibility to receive

[[Page 46656]]

special education services under the category of SLD appears to be 
contingent on the LEA's commitment to providing effective regular 
education services by qualified staff, and, as such, a child with an 
SLD is held hostage by a system that is not working. One commenter 
asked whether the eligibility group can make a determination that a 
child has an SLD in the absence of a child's response to high-quality 
research-based instruction.
    Several commenters stated that the lack of research-based 
instruction by a qualified teacher should not limit a child's 
eligibility for services. Another commenter recommended clarifying that 
a child should not be found ineligible under the category of SLD 
because the child either did not respond to a scientific, research-
based intervention during a truncated evaluation, or because the child 
was not provided an opportunity to respond to such an intervention.
    Discussion: Watering down a focus on appropriate instruction for 
any children, including children with disabilities or children living 
in rural areas would be counter to both the Act and the ESEA. However, 
we agree that the requirement for high quality, research-based 
instruction exceeds statutory authority. The Act indicates that 
children should not be eligible for special education if the low 
achievement is due to lack of appropriate instruction in reading or 
math. Therefore, we will change the regulations to require that the 
eligibility group consider evidence that the child was provided 
appropriate instruction and clarify that this means evidence that lack 
of appropriate instruction was the source of underachievement.
    The eligibility group should not identify a child as eligible for 
special education services if the child's low achievement is the result 
of lack of appropriate instruction in reading or math. Eligibility is 
contingent on the ability of the LEA to provide appropriate 
instruction. Determining the basis of low achievement when a child has 
been given appropriate instruction is the responsibility of the 
eligibility group.
    Whether a child has received ``appropriate instruction'' is 
appropriately left to State and local officials to determine. Schools 
should have current, data-based evidence to indicate whether a child 
responds to appropriate instruction before determining that a child is 
a child with a disability. Children should not be identified as having 
a disability before concluding that their performance deficits are not 
the result of a lack of appropriate instruction. Parents of children 
with disabilities have due process rights that allow them to file a 
complaint on any matter that relates to the identification, evaluation, 
and educational placement of their child with a disability, and the 
provision of FAPE to their child.
    Changes: We have revised the introductory material in Sec.  
300.309(b) to emphasize that the purpose of the review is to rule out a 
lack of appropriate instruction in reading or math as the reason for a 
child's underachievement. We have also revised Sec.  300.309(b)(1) to 
refer to appropriate instruction rather than high-quality, research-
based instruction, and removed the cross reference to the ESEA.
    Comment: One commenter stated that many reading programs claim to 
be research-based, but lack credible evidence of the program's 
effectiveness.
    Discussion: Programs that claim to be research-based, but which are 
not based on sound scientific research, should not be considered 
research-based instruction by a State or LEA.
    Changes: None.
    Comment: One commenter asked what criteria should be used to 
determine that the child was provided with appropriate high quality, 
research-based instruction, especially when the child has been home 
schooled or attends a private school. One commenter asked about 
children referred for evaluation from charter schools and expressed 
concern that these children would not be eligible under the category of 
SLD because they did not have instruction delivered by qualified 
personnel.
    Discussion: As part of the evaluation, the eligibility group must 
consider whether the child received appropriate instruction from 
qualified personnel. For children who attend private schools or charter 
schools or who are home-schooled, it may be necessary to obtain 
information from parents and teachers about the curricula used and the 
child's progress with various teaching strategies. The eligibility 
group also may need to use information from current classroom-based 
assessments or classroom observations. On the basis of the available 
information, the eligibility group may identify other information that 
is needed to determine whether the child's low achievement is due to a 
disability, and not primarily the result of lack of appropriate 
instruction. The requirements for special education eligibility or the 
expectations for the quality of teachers or instructional programs are 
not affected, and do not differ, by the location or venue of a child's 
instruction.
    Changes: None.
    Comment: Many commenters requested a definition of ``qualified 
personnel.'' One commenter stated that teachers should be trained to 
deliver the program of instruction and simply saying they should be 
highly qualified is not sufficient. One commenter recommended removing 
the phrase ``qualified personnel'' in Sec.  300.309(b)(1), because it 
is likely to be interpreted to mean that instruction must be delivered 
by highly qualified teachers, as defined in the ESEA.
    Discussion: Section 300.156 and section 614(a)(14) of the Act are 
clear that each State is responsible for establishing and maintaining 
personnel qualifications to ensure that personnel are appropriately and 
adequately prepared and trained, including that those personnel have 
the content knowledge and skills to serve children with disabilities. 
Consistent with Sec.  300.18 and section 602(10) of the Act, a public 
school teacher, including a special education teacher, who teaches core 
academic subjects must meet the highly qualified teacher standards 
under the Act. The term that is used in Sec.  300.309(b)(1), 
``qualified personnel,'' does not, and should not be interpreted to, 
require that private school teachers be ``highly qualified'' to deliver 
the instruction discussed in Sec.  300.309(b)(1).
    Changes: None.
    Comment: One commenter asked whether the regulations require an LEA 
to provide high-quality, research-based instruction in the regular 
education setting prior to, or as part of, the referral process before 
the group can determine whether a child has an SLD. One commenter 
recommended that research-based interventions occur prior to a referral 
to special education. Several commenters stated that an evaluation to 
assess all areas of suspected disability should follow an assessment of 
a child's response to instruction.
    Discussion: What is important is that the group making the 
eligibility decision has the information that it needs to rule out that 
the child's underachievement is a result of a lack of appropriate 
instruction. That could include evidence that the child was provided 
appropriate instruction either before, or as a part of, the referral 
process. Evidence of appropriate instruction, including instruction 
delivered in an RTI model, is not a substitute for a complete 
assessment of all of the areas of suspected need. As discussed earlier 
in this section, we have revised Sec.  300.309(b) to make this clear.
    Changes: As discussed previously, we have revised Sec.  300.309(b).

[[Page 46657]]

    Comment: One commenter recommended that data be maintained on the 
number of children identified with SLD.
    Discussion: Data are maintained on the number of children 
identified with SLD. Section 618 of the Act requires States to report 
annually to the Department the number and percentage of children with 
disabilities by disability category, in addition to race, ethnicity, 
limited English proficiency status, and gender.
    Changes: None.
    Comment: Many commenters recommended reinforcing the role of 
parents in determining whether a child has an SLD by adding language to 
Sec.  300.309(b) stating that the child's parents and the group of 
qualified professionals must consider whether the child is a child with 
a disability.
    Discussion: Section 300.306(a)(1), consistent with section 
614(b)(4)(A) of the Act, is clear that the parent of the child is 
included in eligibility determinations. Section 300.309(a) cross-
references the group in Sec.  300.306, which includes the parent. We 
believe this adequately addresses the role of the parent and that no 
changes are necessary.
    Changes: None.
    Comment: One commenter requested a definition of ``data-based 
documentation.''
    Discussion: Data-based documentation refers to an objective and 
systematic process of documenting a child's progress. This type of 
assessment is a feature of strong instruction in reading and math and 
is consistent with Sec.  300.306(b)(1)(i) and (ii) and section 
614(b)(5)(A) and (B) of the Act, that children cannot be identified for 
special education if an achievement problem is due to lack of 
appropriate instruction in reading or math.
    Changes: None.
    Comment: Numerous commenters supported requiring data-based 
documentation of repeated assessments of achievement at reasonable 
intervals to be provided to parents during the time the child is 
receiving instruction. One commenter emphasized the importance of 
documenting that the interventions used are data based and implemented 
with fidelity. One commenter stated that data-based documentation 
should be provided to all parents of children with disabilities, not 
just children suspected of having SLD. However, several commenters 
stated that requiring data-based documentation of repeated assessments 
is an additional bureaucratic requirement that is overly prescriptive 
and costly, and will require additional paperwork.
    Discussion: We believe that one of the most important aspects of 
good teaching is the ability to determine when a child is learning and 
then to tailor instruction to meet the child's individual needs. 
Effective teachers use data to make informed decisions about the 
effectiveness of a particular instructional strategy or program. A 
critical hallmark of appropriate instruction is that data documenting a 
child's progress are systematically collected and analyzed and that 
parents are kept informed of the child's progress. Assessments of a 
child's progress are not bureaucratic, but an essential component of 
good instruction.
    Changes: None.
    Comment: Several commenters requested definitions for ``repeated 
assessments'' and ``reasonable intervals.''
    Discussion: Instructional models vary in terms of the frequency and 
number of repeated assessments that are required to determine a child's 
progress. It would be inappropriate for the Department to stipulate 
requirements in Federal regulations that would make it difficult for 
districts and States to implement instructional models they determine 
appropriate to their specific jurisdictions.
    Changes: None.
    Comment: One commenter recommended removing the requirement for 
data-based documentation of repeated assessments of achievement at 
reasonable intervals because it would make it impossible to determine 
eligibility if a child is new to a school district and district 
personnel do not have a child's records with such information.
    Discussion: We do not believe removing the requirement is the 
appropriate solution to the commenter's problem. States will need to 
adopt criteria for determining how to provide such data for children 
new to a district. Children should not be identified as having SLD if 
there is no evidence of appropriate instruction.
    Changes: None.
    Comment: One commenter expressed concern that Sec.  300.309(b)(2), 
requiring parents to be informed of their child's repeated failure to 
perform well on assessments, could be interpreted to refer to the 
assessments under the ESEA and that this would mean that a child must 
perform poorly over a period of several school years to be considered 
for eligibility under the category of SLD.
    Discussion: While the results of a child's performance on 
assessments under the ESEA may be included as data documenting a 
child's progress, relying exclusively on data from Statewide 
assessments under the ESEA would likely not meet the requirement for 
repeated assessments at ``reasonable intervals,'' as required by these 
regulations. It is possible that a State could develop other 
assessments tied to the State approved test that would meet these 
requirements.
    Changes: None.
    Comment: Numerous commenters asked how long an intervention should 
continue before determining a child has not made adequate progress and 
a referral for an evaluation to determine eligibility for special 
education is made. Several commenters recommended that if a child is 
not making progress within 45 days, an evaluation should take place. 
Other commenters recommended a time limit of 90 days. One commenter 
recommended the regulations include a range of active intervention 
days, not just a waiting period, within which the IEP Team expects to 
notice a change, and recommended between 45-75 school days. One 
commenter suggested 6-10 weeks as an appropriate period of time.
    A few commenters recommended requiring States to establish 
reasonable time limits for decision making. Several commenters 
recommended requiring the IEP Team and the parents to agree on an 
appropriate period of time.
    Several commenters stated that unless a timeline is specified in 
the regulations, there would be different standards occurring 
throughout the country. A few commenters expressed concern that if time 
limits were not clarified, school districts and parents would interpret 
the timelines differently, which would result in contentious situations 
and litigation. One commenter stated that a parent could sue for 
compensatory services if, after requesting an evaluation, the LEA 
requires an assessment of how the child responds to high quality 
research-based instruction.
    Several commenters stated that the lack of a specific timeline 
means that an evaluation could be indefinitely delayed and children 
denied services. Several commenters recommended adding language to the 
regulations to ensure that RTI models could not be used to delay an 
evaluation of a child suspected of having a disability, access to 
special education and related services, or protections under the Act.
    In addition to requesting a definition of an ``appropriate period 
of time,'' a few commenters requested a definition of ``adequate 
progress'' and recommended adding language to

[[Page 46658]]

require States to define ``adequate progress.'' One commenter stated 
that a child's rate of learning needs to be examined carefully. One 
commenter offered a definition of a ``developmentally appropriate 
rate'' as the time or the number of repetitions required to have at 
least 85 percent of children at the same age or grade level acquire and 
retain the particular skill or academic levels, as established by 
research or by experience with the delivery of that curriculum or 
program.
    Discussion: Instructional models vary in terms of the length of 
time required for the intervention to have the intended effect on a 
child's progress. It would not be appropriate for the Department to 
establish timelines or the other requirements proposed by the 
commenters in Federal regulations, because doing so would make it 
difficult for LEAs to implement models specific to their local school 
districts. These decisions are best left to State and local 
professionals who have knowledge of the instructional methods used in 
their schools.
    The Department believes that good instruction depends on repeated 
assessments of a child's progress. This allows teachers to make 
informed decisions about the need to change their instruction to meet 
the needs of the child, and also provides parents with information 
about their child's progress so that they can support instruction and 
learning at home. Parents should be informed if there are concerns 
about their child's progress and should be aware of the strategies 
being used to improve and monitor their child's progress.
    We understand the commenters' requests for more specific details on 
timelines and measures of adequate progress. However, as noted above, 
these decisions are best left to professionals who have knowledge about 
the instructional models and strategies used in their States and 
districts.
    We also understand the commenters' concerns that the requirements 
in Sec.  300.309(b) may result in untimely evaluations or services and 
that parents must be fully informed about the school's concerns about 
their child's progress and interventions provided by the school. 
Therefore, we will combine proposed Sec.  300.309(c) and (d), and 
revise the new Sec.  300.309(c) to ensure that the public agency 
promptly requests parental consent to evaluate a child suspected of 
having an SLD who has not made adequate progress when provided with 
appropriate instruction, which could include instruction in an RTI 
model, and whenever a child is referred for an evaluation. We will also 
add a new Sec.  300.311(a)(7)(ii) to ensure that the parents of a child 
suspected of having an SLD who has participated in a process that 
evaluates the child's response to scientific, research-based 
intervention, are notified about the State's policies regarding 
collection of child performance data and the general education services 
that will be provided; strategies to increase their child's rate of 
learning; and their right to request an evaluation at any time. If 
parents request an evaluation and provide consent, the timeframe for 
evaluation begins and the information required in Sec.  300.309(b) must 
be collected (if it does not already exist) before the end of that 
period.
    Changes: We have combined proposed Sec.  300.309(c) and (d), and 
revised the new paragraph (c) in Sec.  300.309 to require the public 
agency to promptly request parental consent to evaluate a child 
suspected of having an SLD who has not made adequate progress when 
provided appropriate instruction, and whenever a child is referred for 
an evaluation. We also have added a new Sec.  300.311(a)(7)(ii) to 
require that the eligibility report include evidence that when a child 
has participated in an RTI process, the parents were informed of State 
policies regarding child performance data that would be collected and 
the general education services that would be provided; strategies to 
support the child's rate of learning; and a parent's right to request 
an evaluation at any time.
    Comment: Many commenters recommended clarifying when parental 
consent for evaluation should be obtained and when the 60-day timeline 
to complete an evaluation begins. Several commenters recommended 
ensuring that the 60-day timeline for evaluation applies regardless of 
the evaluation model used. One commenter asked how scientific research-
based interventions could be completed within a 60-day evaluation 
timeline. One commenter stated that 60 days may not be enough time to 
appropriately determine whether a child responds to instruction, 
particularly for children who have not had exposure to such 
interventions (e.g., children entering the public school system for the 
first time). One commenter asked if the intent of the regulations is to 
allow a determination that a child has an SLD to take place outside the 
timeline for an initial evaluation, and stated that without 
clarification of the intersection between an RTI process (that may, by 
definition, require additional time beyond that which is permitted for 
an evaluation) and the required period of time for an initial 
assessment, the regulations would cause confusion and result in 
improper evaluations and eligibility determinations.
    Several commenters recommended that the regulations address the 
need for an extension of the timeline and allow States to set an 
alternative timeline without a written agreement. Several commenters 
requested adding a provision for an extended timeline, with parental 
consent, in exceptional circumstances. Several commenters stated that 
the language regarding an extension of timelines is confusing.
    Discussion: Section 300.309(c), as revised, clarifies that if a 
child has not made adequate progress after an appropriate period of 
time, a referral for an evaluation must be made. As required in Sec.  
300.301(c), the initial evaluation must be conducted within 60 days of 
receiving consent for an evaluation (or if the State establishes a 
timeframe within which the evaluation must be completed, within that 
timeframe). Models based on RTI typically evaluate the child's response 
to instruction prior to the onset of the 60-day period, and generally 
do not require as long a time to complete an evaluation because of the 
amount of data already collected on the child's achievement, including 
observation data. RTI models provide the data the group must consider 
on the child's progress when provided with appropriate instruction by 
qualified professionals as part of the evaluation.
    Section 300.309(b)(1) requires that the eligibility group consider 
data on the child's progress when provided with appropriate instruction 
by qualified professionals as part of this evaluation. These data, 
along with other relevant information, will assist the eligibility 
group in determining whether the child's low achievement is 
attributable to a lack of appropriate instruction. As required in Sec.  
300.306(b)(1)(i) and (ii), consistent with section 614(b)(5)(A) and (B) 
of the Act, a child cannot be identified as a child with a disability 
if the determinant factor for that determination is lack of appropriate 
instruction in reading or math.
    Based on their review of the existing data, and input from the 
child's parents, the eligibility group must decide, on a case-by-case 
basis, depending on the needs of the child and the information 
available regarding the child, what additional data, if any, are needed 
to determine whether the child is a child with a disability, and the 
educational needs of the child. If the eligibility group determines 
that additional data are needed and that these data cannot be

[[Page 46659]]

obtained within the 60-day timeframe (or the timeframe established by 
the State), new Sec.  300.309(c) (proposed Sec.  300.309(d)) allows the 
extension of the timeframe with mutual written agreement of the child's 
parent and the eligibility group.
    Changes: None.
    Comment: One commenter asked how the 60-day timeframe would be 
followed if the time extends over school breaks.
    Discussion: The 60-day timeframe refers to 60 calendar days and 
would include school breaks.
    Changes: None.
    Comment: Several commenters stated that the regulations appear to 
set up a separate process and procedure for the evaluation and 
identification of children with SLD, and then impose the timeframe and 
procedures that apply to the evaluation of all other disability 
categories. One commenter stated that the timeframe for evaluating 
children with SLD is less stringent than for other disability 
categories and is, therefore, discriminatory.
    Discussion: Although there are additional criteria and procedures 
for evaluating and identifying children suspected of having SLD, the 
group must also comply with the procedures and timelines that apply to 
all evaluations, including evaluations for SLD. Evaluation of children 
suspected of having SLD must follow the same procedures and timeframes 
required in Sec. Sec.  300.301 through 300.306, in addition to those in 
Sec. Sec.  300.307 through 300.311.
    Changes: None.
    Comment: One commenter stated that ``appropriate period of time'' 
should be replaced with ``reasonable period of time'' because courts 
are accustomed to deciding what constitutes a reasonable timeframe in 
various evaluation contexts.
    Discussion: It is not necessary to change ``appropriate period of 
time'' to ``reasonable period of time,'' because the terms here have 
similar meanings and are commonly understood to be synonymous.
    Changes: None.
    Comment: One commenter requested that the regulations clarify who 
should refer a child for an evaluation to determine eligibility for 
special education services.
    Discussion: Under Sec.  300.301(b), and consistent with the 
requirements in Sec.  300.300 and section 614(a)(1)(D) of the Act, 
either a parent of a child or a public agency may initiate a request 
for an evaluation at any time to determine if the child is a child with 
a disability. We do not believe that further clarification is 
necessary.
    Changes: None.
    Comment: One commenter stated that a school district should retain 
its discretion not to evaluate a child subject to the parent's right to 
contest the decision through due process procedures.
    Discussion: The commenter's concern is already addressed in Sec.  
300.111, which provides that an LEA must identify, locate, and evaluate 
children who are in need of special education and related services. If 
an LEA refuses to evaluate a child, the LEA must provide prior written 
notice, consistent with Sec.  300.503 and section 615(b)(3) of the Act. 
The parent can challenge this decision through a due process hearing.
    Changes: None.

Observation (Sec.  300.310)

    Comment: Many commenters recommended removing the observation 
requirements in Sec.  300.310, stating that they are costly and overly 
prescriptive and have no statutory basis. One commenter stated that the 
requirements for determining eligibility under the category of SLD are 
so specific that the observation requirements are unnecessary.
    Discussion: The observation requirements for children suspected of 
having SLD have been in the regulations since before 1983. Important 
information can be obtained about a child through observation in the 
classroom, or for a child less than school age, in an environment 
appropriate for a child of that age. Objective observations are 
essential to assessing a child's performance and should be a part of 
routine classroom instruction and are not costly or overly 
prescriptive. We believe the observation requirements are an important 
matter to regulate clearly. We will, therefore, change Sec.  300.310(a) 
through Sec.  300.310(c) to clearly state that the public agency must 
ensure appropriate observation and documentation of the child's 
academic performance and behavior in the areas of difficulty to 
determine whether a child has an SLD.
    Changes: We have changed Sec.  300.310(a) through Sec.  300.310(c) 
to clearly state the observation requirements in determining whether a 
child has an SLD.
    Comment: Several commenters supported requiring a member of the 
group to be trained in observation. Many commenters requested 
clarification regarding what it means to be trained in observation. One 
commenter stated that there are no established training protocols or 
uniform professional standards for conducting an observation.
    Discussion: We agree that the requirement for an individual to be 
trained in observation is unclear and should be removed. States are 
responsible for determining specific personnel qualification 
requirements, and, for the reasons stated under Sec.  300.308, States 
and LEAs should determine appropriate group membership.
    Changes: We have removed the phrase ``trained in observation'' from 
Sec.  300.310(a).
    Comment: Several commenters stated that the public agency should 
determine the most appropriate individual to conduct the observation. 
One commenter recommended specifying a reading specialist to conduct 
the observation when the child's learning problems involve reading. 
Another commenter stated that the observer should not be limited to a 
member of the eligibility group. One commenter stated that it is not 
necessary to obtain parental consent for the observation.
    Discussion: The person conducting the observation should be a 
member of the eligibility group because information from the 
observation will be used in making the eligibility determination. If 
information is available from an observation conducted as part of 
routine classroom instruction that is important for the eligibility 
group to consider, the eligibility group should include the person who 
conducted that routine classroom. This will eliminate redundant 
observations and save time and resources. Parental consent is not 
required for observations conducted as part of routine classroom 
instruction and monitoring of the child's performance before the child 
is referred for an evaluation.
    If an observation has not been conducted, or additional observation 
data are needed, the decision as to which person should conduct the 
observation is best left to members of the eligibility group, based on 
the type of information that is needed to make the eligibility 
determination and identify the child's needs. Parental consent is 
required for observations conducted after the child is suspected of 
having a disability and is referred for an evaluation. We will revise 
Sec.  300.310 to clarify the different ways in which observation data 
may be obtained and to clarify that parental consent is required for 
observations conducted after the child is suspected of having a 
disability and is referred for an evaluation.
    Changes: We have revised Sec.  300.310 to specify in paragraph (a) 
that the public agency must ensure that the child is observed in the 
child's learning environment. A new Sec.  300.310(b) has

[[Page 46660]]

been added to require the eligibility group to use the information 
obtained from the routine classroom observation or conduct a new 
observation and to require parental consent for observations conducted 
after the child is suspected of having a disability and is referred for 
an evaluation. Proposed Sec.  300.310(b) has been redesignated as new 
Sec.  300.310(c).
    Comment: One commenter requested clarification regarding the 
definition of an ``appropriate'' environment in which to conduct the 
observation of a child who is less than school age, as well as guidance 
in determining what such an environment would be for children who are 
out of school.
    Discussion: The eligibility group is in the best position to 
determine the environment appropriate for a child who is less than 
school age or out of school.
    Changes: None.
    Comment: One commenter requested clear guidance about the working 
relationship between the special education teacher and the general 
education teacher in conducting an observation.
    Discussion: We decline to provide specific guidance on the working 
relationship between the special education teacher and the general 
education teacher in conducting an observation because this 
relationship will necessarily vary depending on how classrooms are 
structured and teacher responsibilities assigned. Such decisions are 
best made at the local level. Generally, we would expect that the 
child's general education teacher would have data from routine 
classroom instruction and would work with the other members of the 
eligibility group to determine what additional data, if any, are needed 
to determine whether a child has an SLD. A special education teacher 
who is experienced in working with children with SLD, for example, 
might have suggestions on ways to structure a particular observation 
session to obtain any additional information that is needed, and may be 
able to assist the general education teacher in gathering the data.
    Changes: None.
    Comment: One commenter recommended requiring an observation for any 
child suspected of having a disability, not just those suspected of 
having an SLD.
    Discussion: Observation data will generally be a part of the 
existing data reviewed for any child suspected of having a disability. 
Section 300.305(a)(1) requires the eligibility group for any child 
suspected of having a disability to review existing evaluation data, 
including classroom-based observations and observations by teachers and 
related services providers. We do not believe that requiring an 
observation of children suspected of other disabilities is necessary, 
however, as identification of those other disabilities is not always as 
dependent on classroom performance and behavior as is identification of 
children with SLD.
    Changes: None.
Specific Documentation for the Eligibility Determination (Proposed 
Written Report) (Sec.  300.311)
    Comment: Several commenters supported the requirements for the 
written report, stating that they provide a useful framework for 
practitioners. However, several commenters stated that the requirements 
for the written report should be removed because they go beyond the 
requirements of the Act and impose additional procedural and paperwork 
burdens for school personnel. Several commenters stated that the report 
is much more detailed than the evaluation and eligibility report for 
children with other disabilities, and stated that this could discourage 
schools from evaluating children suspected of having SLD.
    Discussion: Section 614(b)(4)(B) of the Act requires the public 
agency to provide a copy of the evaluation report and the documentation 
of determination of eligibility to the parents for all children 
evaluated under the Act. Section 300.311 specifies the content for the 
evaluation report for children suspected of having SLD. States and LEAs 
have more discretion over the specific content of an evaluation report 
for children suspected of having a disability under the other 
disability categories. Therefore, whether the SLD evaluation report is 
more detailed or burdensome than other evaluation reports would depend 
on State and local requirements. We believe that the elements of the 
report specified in Sec.  300.311 provide important checks to prevent 
misidentification and ensure that children who actually have SLD are 
identified.
    Changes: None.
    Comment: Several commenters recommended that the written report 
include statements regarding the existence of a psychological 
processing disorder and the basis for making the determination; whether 
the child achieved commensurate with the child's age and ability; 
whether the child achieved commensurate with the child's age and 
intellectual development; whether the child achieved commensurate with 
the child's peers; and whether there are strengths and weaknesses in 
performance or cognitive abilities in one or more of the areas in Sec.  
300.309(a) that require special education and related services.
    Discussion: We decline to change the content of the written report 
in the manner recommended by the commenters because the statements that 
commenters recommended be included in the written report are 
inconsistent with the eligibility requirements for children with SLD in 
Sec.  300.309.
    Changes: None.
    Comment: One commenter recommended including an assurance that the 
eligibility determination was made in accordance with Sec.  
300.306(c)(1), regarding procedures for determining eligibility and 
placement, and Sec.  300.8(c)(10), regarding the definition of specific 
learning disability.
    Discussion: Section 300.311(b) requires each member of the 
eligibility group to certify in writing whether the report reflects the 
particular member's conclusion about whether the child has an SLD, and 
if it does not reflect his or her conclusion, submit a separate 
statement presenting his or her conclusions. There is no need for any 
additional assurances.
    Changes: None.
    Comment: One commenter stated that including ``evaluation report'' 
in the description of the written report is confusing because it is 
unclear whether the evaluation report is something additional to the 
written report.
    Discussion: The information required in the written report in Sec.  
300.311 is a part of the documentation of eligibility required in Sec.  
300.306(a)(2). Section 300.306(b) and (c) lists the requirements for 
eligibility determinations for all children suspected of having a 
disability, including children suspected of having SLD. Section 300.311 
provides specific elements that must be addressed in the report for 
children suspected of having SLD. Two separate reports are not 
necessary as long as the information in Sec.  300.311 is included in 
the documentation of the eligibility determination in Sec.  
300.306(a)(2). We agree that this should be clarified. Therefore, we 
will change the heading for Sec.  300.311 from ``Written report'' to 
``Specific documentation for the eligibility determination'' and will 
modify the language in Sec.  300.311(a) accordingly.
    Changes: We have changed the heading for Sec.  300.311 and modified 
Sec.  300.311(a) to clarify that the requirements in Sec.  300.311 are 
in addition to the requirements for the documentation of the 
eligibility

[[Page 46661]]

determination required in Sec.  300.306(a)(2).
    Comment: Several commenters requested that the written report 
include the determination of the group concerning the effects of 
cultural factors, limited English proficiency, and environmental or 
economic disadvantage to be consistent with all the elements in Sec.  
300.309(a)(3).
    Discussion: We agree that it is important to emphasize the 
importance of considering such factors in determining eligibility under 
SLD and will add these factors in Sec.  300.311(a).
    Changes: We have added a new paragraph (6) to Sec.  300.311(a) to 
require the written report to include a statement on the effects of 
cultural factors, limited English proficiency, environmental, or 
economic disadvantage.
    Comment: Several commenters requested clarification of what happens 
if a group member disagrees with the report and agreement is never 
reached. Other commenters asked whether services are delayed pending a 
group consensus; whether the submission of a separate statement is 
synonymous with a veto for eligibility; whether it matters which group 
member submits a separate report; and whether each group member has 
equal standing.
    Discussion: The eligibility group should work toward consensus, but 
under Sec.  300.306, the public agency has the ultimate responsibility 
to determine whether the child is a child with a disability. Parents 
and school personnel are encouraged to work together in making the 
eligibility determination. If the parent disagrees with the public 
agency's determination, under Sec.  300.503, the public agency must 
provide the parent with prior written notice and the parent's right to 
seek resolution of any disagreement through an impartial due process 
hearing, consistent with the requirements in Sec.  300.503 and section 
615(b)(3) of the Act.
    Every effort should be made to resolve differences between parents 
and school staff through voluntary mediation or some other informal 
dispute resolution process. However, as stated in Sec.  
300.506(b)(1)(ii) and section 615(e)(2)(A)(ii) of the Act, mediation or 
other informal procedures may not be used to deny or delay a parent's 
right to a due process hearing, or to deny any other rights afforded 
under Part B of the Act.
    Changes: None.

Individualized Education Programs

Definition of Individualized Education Program (Sec.  300.320)
General (Sec.  300.320(a))
    We received numerous comments requesting that we require the IEP to 
include additional content that is not in the Act. Under section 
614(d)(1)(A)(ii)(I) of the Act, the Department cannot interpret section 
614 of the Act to require public agencies to include additional 
information in a child's IEP that is not explicitly required under the 
Act. Therefore, we generally have not included these comments in our 
analysis and discussion of Sec.  300.320.
    Comment: One commenter requested that Sec.  300.320 refer to a 
``student with a disability'' instead of a ``child with a disability.''
    Discussion: The words ``child'' and ``student'' are used 
interchangeably throughout the Act. The regulations follow the 
statutory language whenever possible. In Sec.  300.320, we used the 
term ``child with a disability,'' consistent with section 614(d) of the 
Act.
    Changes: None.
    Comment: Many commenters recommended that the regulations include a 
definition of ``functional'' as it is used, for example, in 
``functional performance'' in Sec.  300.320(a)(1) and ``functional 
goals'' in Sec.  300.320(a)(2). Some commenters suggested defining 
``functional'' as the acquisition of essential and critical skills 
needed for children with disabilities to learn specific daily living, 
personal, social, and employment skills, or the skills needed to 
increase performance and independence at work, in school, in the home, 
in the community, for leisure time, and for postsecondary and other 
life long learning opportunities. One commenter recommended that the 
regulations include examples of functional skills and how functional 
skills should be measured.
    Discussion: It is not necessary to include a definition of 
``functional'' in these regulations because we believe it is a term 
that is generally understood to refer to skills or activities that are 
not considered academic or related to a child's academic achievement. 
Instead, ``functional'' is often used in the context of routine 
activities of everyday living. We do not believe it is necessary to 
include examples of functional skills in the regulations because the 
range of functional skills is as varied as the individual needs of 
children with disabilities. We also decline to include examples of how 
functional skills are measured because this is a decision that is best 
left to public agencies, based on the needs of their children. However, 
it should be noted that the evaluation procedures used to measure a 
child's functional skills must meet the same standards as all other 
evaluation procedures, consistent with Sec.  300.304(c)(1).
    Changes: None.
    Comment: One commenter recommended revising Sec.  300.320(a) to 
state that ``an IEP includes'' rather than ``an IEP must include'' in 
order to reflect the specific language in section 614(d) of the Act. 
The commenter stated that use of the word ``must'' limits the contents 
of an IEP to the items listed in Sec.  300.320(a).
    Discussion: The word ``must'' is used in Sec.  300.320(a) to 
clarify that an IEP is required to include the items listed in Sec.  
300.320(a). We believe it is important to retain this language in Sec.  
300.320(a). Under section 614(d)(1)(A)(ii)(I) of the Act, section 614 
of the Act cannot be interpreted to require content in the IEP beyond 
that which is specified in the Act.
    Changes: None.
    Comment: One commenter requested clarifying the meaning of 
``appropriate'' as used, for example, in Sec.  300.320(a)(1)(ii) to 
refer to a child's participation in ``appropriate'' activities.
    Discussion: The word ``appropriate'' in these regulations does not 
have a different meaning from its common usage. Generally, the word 
``appropriate'' is used to mean ``suitable'' or ``fitting'' for a 
particular person, condition, occasion, or place.
    Changes: None.
    Comment: Some commenters recommended requiring the IEP to include a 
statement of the relevant social and cultural background of a child and 
how those factors affect the appropriate participation, performance, 
and placement of the child in special education.
    Discussion: Section 614(d)(1)(A)(ii)(I) of the Act precludes the 
Department from interpreting section 614 of the Act to require public 
agencies to include information in a child's IEP other than what is 
explicitly required in the Act. Therefore, we cannot require the IEP to 
include the statement requested by the commenters. However, a child's 
social or cultural background is one of many factors that a public 
agency must consider in interpreting evaluation data to determine if a 
child is a child with a disability under Sec.  300.8 and the 
educational needs of the child, consistent with Sec.  300.306(c)(1)(i).
    Changes: None.
    Comment: One commenter stated that adapted physical education 
should be part of a child's IEP. Another

[[Page 46662]]

commenter recommended that travel training be required in the IEP.
    Discussion: The definition of special education in new Sec.  300.39 
(proposed Sec.  300.38) includes adapted physical education and travel 
training. We do not believe adapted physical education and travel 
training should be mandated as part of an IEP because, as with all 
special education and related services, each child's IEP Team 
determines the special education and related services that are needed 
to meet each child's unique needs in order for the child to receive 
FAPE. In addition, section 614(d)(1)(A)(ii)(I) of the Act prohibits the 
Department from interpreting section 614 of the Act to require public 
agencies to include information in a child's IEP that is not explicitly 
required under the Act.
    Changes: None.
    Comment: One commenter recommended that IEPs include the array of 
new tools used with nondisabled children, so that children with 
disabilities have access to the materials they need to progress in the 
general education curriculum.
    Discussion: There is nothing in the Act that requires new tools or 
the same tools and materials used by nondisabled children to be used 
with children with disabilities or be specified in children's IEPs. 
Therefore, we cannot make the requested change because section 
614(d)(1)(A)(ii)(I) of the Act prohibits the Department from 
interpreting section 614 of the Act to require public agencies to 
include information in a child's IEP that is not explicitly required 
under the Act. Each child's IEP Team determines the special education 
and related services, as well as supplementary aids, services, and 
supports that are needed to meet the child's needs in order to provide 
FAPE consistent with Sec.  300.320(a)(4) and section 
614(d)(1)(A)(i)(IV) of the Act.
    Changes: None.
Present Levels of Academic Achievement and Functional Performance 
(Sec.  300.320(a)(1))
    Comment: A few commenters stated that Sec.  300.320(a)(1) requires 
an IEP to include a statement of the child's present levels of academic 
achievement, and recommended that the regulations define ``academic 
achievement.''
    Discussion: ``Academic achievement'' generally refers to a child's 
performance in academic areas (e.g., reading or language arts, math, 
science, and history). We believe the definition could vary depending 
on a child's circumstance or situation, and therefore, we do not 
believe a definition of ``academic achievement'' should be included in 
these regulations.
    Changes: None.
    Comment: Some commenters recommended that the regulations clarify 
that not every child requires a functional performance statement or 
functional annual goals. Some commenters stated that requiring 
functional assessments for all children places an unnecessary burden on 
an LEA, does not add value for every child, and creates a potential for 
increased litigation. One commenter recommended that Sec.  
300.320(a)(1), regarding the child's present levels of performance, and 
Sec.  300.320(a)(2), regarding measurable annual goals, clarify that 
functional performance and functional goals should be included in a 
child's IEP only if determined appropriate by the child's IEP Team.
    Discussion: We cannot make the changes requested by the commenters. 
Section 614(d)(1)(A)(i)(I) of the Act requires an IEP to include a 
statement of the child's present levels of academic achievement and 
functional performance.
    Changes: None.
    Comment: One commenter requested that the regulations require a 
child's present levels of performance to be aligned with the child's 
annual goals. Another commenter stated that the content of the IEP 
should be aligned with the State's core curriculum content standards 
and the knowledge and skills needed for children with disabilities to 
become independent, productive, and contributing members of their 
communities and the larger society.
    Discussion: The IEP Team's determination of how the child's 
disability affects the child's involvement and progress in the general 
education curriculum is a primary consideration in the development of 
the child's annual IEP goals. Section 300.320(a)(1)(i), consistent with 
section 614(d)(1)(A)(i)(I)(aa) of the Act, requires the statement of a 
child's present levels of performance in the IEP to include how the 
child's disability affects the child's involvement and progress in the 
general education curriculum. This directly corresponds with the 
provision in Sec.  300.320(a)(2)(i)(A) and section 
614(d)(1)(A)(i)(II)(aa) of the Act, which requires the IEP to include 
measurable annual goals designed to meet the child's needs that result 
from the child's disability to enable the child to be involved in and 
make progress in the general education curriculum. We do not believe 
further clarification is needed regarding the alignment of a child's 
present levels of performance with the child's annual goals.
    With regard to the alignment of the IEP with the State's content 
standards, Sec.  300.320(a)(1)(i) clarifies that the general education 
curriculum means the same curriculum as all other children. Therefore, 
an IEP that focuses on ensuring that the child is involved in the 
general education curriculum will necessarily be aligned with the 
State's content standards. Congress acknowledged, in section 
601(c)(5)(A) of the Act, that ensuring access to the general education 
curriculum in the regular classroom, to the maximum extent possible, is 
also effective in preparing children with disabilities to lead 
productive and independent adult lives. We do not believe further 
clarification is necessary to address the commenters' concerns.
    Changes: None.
Measurable Annual Goals (Sec.  300.320(a)(2))
    Comment: One commenter requested clarification as to whether IEP 
goals must be specific to a particular discipline (e.g., physical 
therapy goals, occupational therapy goals). One commenter recommended 
that goals be explicitly defined and objectively measured. Another 
commenter recommended requiring IEP goals to have specific outcomes and 
measures on an identified assessment tool. One commenter recommended 
clarifying that an IEP Team is permitted, under certain circumstances, 
to write goals that are intended to be achieved in less than one year.
    Discussion: Section 300.320(a)(2)(i), consistent with section 
614(d)(1)(A)(i)(II) of the Act, requires the IEP to include measurable 
annual goals. Further, Sec.  300.320(a)(3)(i), consistent with section 
614(d)(1)(A)(i)(III) of the Act, requires the IEP to include a 
statement of how the child's progress toward meeting the annual goals 
will be measured. The Act does not require goals to be written for each 
specific discipline or to have outcomes and measures on a specific 
assessment tool. Furthermore, to the extent that the commenters are 
requesting that we mandate that IEPs include specific content not in 
section 614(d)(1)(A)(i) of the Act, under section 614(d)(1)(A)(ii)(I), 
we cannot interpret section 614 to require that additional content. 
IEPs may include more than the minimum content, if the IEP Team 
determines the additional content is appropriate.
    Changes: None.
    Comment: Some commenters recommended requiring related services in 
every child's IEP. The commenters stated that related services are 
necessary

[[Page 46663]]

to enhance the overall health and well-being of the child to prevent 
secondary conditions; ensure that the child progresses towards 
independent functioning and community integration; increase the child's 
ability to function and learn in his or her educational environment; 
develop social interaction skills to enhance a child's ability to 
communicate, build relationships, and reinforce other positive behavior 
skills; and further advance the child's ability to complete his or her 
own educational requirements and goals.
    Discussion: To require related services for every child with a 
disability would be inconsistent with the concept of individualization 
that has been part of the Act since its inception in 1975. Related 
services are only required to the extent that such services are 
necessary to enable the child to benefit from special education. 
Related services, as with any other service in an IEP, are determined 
on an individual basis by the child's IEP Team.
    Changes: None.
    Comment: Many commenters opposed the removal of benchmarks and 
short-term objectives as required components of the IEP and recommended 
that States and LEAs be permitted to require benchmarks and short-term 
objectives for all children with disabilities. Many commenters 
recommended that the regulations allow the IEP Team to determine 
whether to include short-term objectives in a child's IEP to measure 
progress in functional areas that are not measurable through other 
means.
    Discussion: Benchmarks and short-term objectives were specifically 
removed from section 614(d)(1)(A)(i)(II) of the Act. However, because 
benchmarks and short-term objectives were originally intended to assist 
parents in monitoring their child's progress toward meeting the child's 
annual goals, we believe a State could, if it chose to do so, determine 
the extent to which short-term objectives and benchmarks would be used. 
However, consistent with Sec.  300.199(a)(2) and sections 608(a)(2) and 
614(d)(1)(A)(ii)(I) of the Act, a State that chooses to require 
benchmarks or short-term objectives in IEPs in that State would have to 
identify in writing to the LEAs located in the State and to the 
Secretary that such rule, regulation, or policy is a State-imposed 
requirement, which is not required by Part B of the Act or the Federal 
regulations.
    Changes: None.
    Comment: A few commenters supported the requirement in Sec.  
300.320(a)(2)(ii) for benchmarks or short-term objectives to be 
developed for children who take alternate assessments aligned to 
alternate achievement standards. However, a few commenters stated that 
limiting short-term objectives to children who take alternate 
assessments is not acceptable because the one percent limit on the 
percentage of children who may take alternate assessments is arbitrary.
    Discussion: The requirement to develop short-term objectives or 
benchmarks covers all children with disabilities who are assessed using 
alternate assessments aligned to alternate achievement standards, 
consistent with section 614(d)(1)(A)(i)(I)(cc) of the Act. The one 
percent cap referred to by the commenter is not a limit on the number 
of children who may take an alternate assessment based on alternate 
achievement standards. Rather, it is a limit on the number of 
proficient and advanced scores that may be included in calculating 
adequate yearly progress (AYP) under the ESEA, consistent with 34 CFR 
Sec.  200.13(c)(1)(ii). As noted previously, the requirement to include 
benchmarks or short-term objectives for all children with disabilities 
was specifically removed from section 614(d)(1)(A)(i)(II) of the Act.
    Changes: None.
    Comment: One commenter stated that the IEP should not include 
benchmarks for alternate achievement standards because this would be 
teaching to the test and would lower expectations for children.
    Discussion: Section 300.320(a)(2)(ii) requires benchmarks or short-
term objectives only for children with disabilities who take alternate 
assessments aligned to alternate achievement standards. By ``teaching 
to the test,'' we assume that the commenter believes that a benchmark 
or short-term objective must be written for each alternate achievement 
standard. There is no such requirement in the Act or these regulations.
    Changes: None.
    Comment: One commenter requested clarification on how schools 
should determine which children in kindergarten through grade two must 
have short-term objectives or benchmarks in their IEPs. Another 
commenter requested clarification on how the requirements for 
benchmarks or short-term objectives apply to preschoolers.
    Discussion: Section 300.320(a)(2)(ii), consistent with section 
614(d)(1)(A)(i)(I)(cc) of the Act, requires an IEP to include 
benchmarks or short-term objectives for children with disabilities who 
take an alternate assessment aligned to alternate achievement 
standards. This would apply to preschool children and children with 
disabilities in kindergarten through grade two only if these children 
are assessed in a State or districtwide assessment program and the 
State has opted to develop an alternate assessment based on alternate 
achievement standards. Under title I of the ESEA, States are only 
required to assess children in grades 3 through 8 and once in high 
school, so it is unlikely that even States that choose to develop 
alternate achievement standards will include this age population in a 
Statewide assessment program or develop an alternate achievement 
standard for these children.
    Changes: None.
    Comment: One commenter recommended that the regulations require IEP 
Team members, including the parents, to be involved in developing 
short-term objectives.
    Discussion: Sections 300.320 through 300.324 and section 614(d) of 
the Act are clear that the IEP Team, which includes the parent, is 
responsible for developing benchmarks or short-term objectives for 
children who take alternate assessments aligned to alternate 
achievement standards.
    Changes: None.
    Comment: One commenter recommended clarifying that goals and 
objectives must be aligned with the State's alternate assessment.
    Discussion: Section 612(a)(16)(C)(ii) of the Act requires alternate 
assessments to be aligned with the State's challenging academic content 
standards and academic achievement standards, and if the State has 
adopted alternate academic achievement standards permitted under 34 CFR 
Sec.  200.1(d), to measure the achievement of children with 
disabilities against those standards. Section 614(d)(1)(A)(i)(II) of 
the Act requires the IEP to include a statement of measurable annual 
goals, including academic and functional goals, designed to meet the 
child's needs that result from the child's disability to enable the 
child to be involved in and make progress in the general education 
curriculum. However, there is nothing in the Act that requires a 
child's IEP goals to be aligned with the State's alternate assessment 
based on alternate achievement standards. Additionally, for some 
children, goals may be needed for activities that are not closely 
related to a State's academic content and academic achievement 
standards.
    Changes: None.
    Comment: A few commenters stated that the regulations should be 
more specific about what must be included in an IEP goal if benchmarks 
or short-term

[[Page 46664]]

objectives are not required in every child's IEP.
    Discussion: The regulations are clear on the requirements for IEP 
goals. Section 300.320(a)(2)(i), consistent with section 
614(d)(1)(A)(i)(II) of the Act, requires that annual IEP goals be 
measurable and designed to meet the child's needs that result from the 
child's disability to enable the child to be involved in and make 
progress in the general education curriculum, and to meet each of the 
child's other educational needs that result from the child's 
disability. We believe that these requirements will ensure that 
progress toward achieving a child's annual goals can be objectively 
monitored and measured. We do not believe that additional specificity 
is needed.
    Changes: None.
    Comment: One commenter suggested requiring SEAs to ensure that LEAs 
receive professional development in writing measurable goals and 
effective methods of measuring progress toward achieving those goals.
    Discussion: We do not believe that the requested requirement should 
be included in the regulations. State and local officials are in the 
best position to determine the training and professional development 
needs of their personnel.
    Changes: None.
    Comment: One commenter recommended retaining current Sec.  300.350, 
regarding the responsibilities of the public agency to provide special 
education and related services to a child with a disability in 
accordance with the child's IEP and to make a good-faith effort to 
assist the child to achieve the goals and objectives or benchmarks in 
the IEP.
    Discussion: The requirement in current Sec.  300.350(a)(1), 
regarding a public agency's responsibility to provide special education 
and related services to a child with a disability in accordance with 
the child's IEP, is unnecessary, because entitlement to FAPE under the 
Act includes the provision of special education and related services in 
accordance with an IEP. Paragraphs (a)(2) and (b) in current Sec.  
300.350, regarding accountability for a child achieving his or her 
goals, are unnecessary because other Federal laws, such as title I of 
the ESEA, already provide sufficient motivation for agency effort to 
assist children with disabilities in making academic progress. Current 
Sec.  300.350(c), regarding the rights of parents to invoke due process 
procedures if a parent feels that efforts are not being made to achieve 
the IEP goals, is unnecessary because it merely provides explanatory 
information regarding the due process procedures for parents and 
children that are available in Sec. Sec.  300.500 through 520.
    Changes: None.
Periodic Progress Reports (Sec.  300.320(a)(3)(ii))
    Comment: A few commenters supported the language in Sec.  
300.320(a)(3)(ii), which requires the IEP to include a description of 
when periodic reports on the child's progress toward meeting the annual 
goals will be provided. However, many commenters recommended retaining 
current Sec.  300.347(a)(7), which requires parents of a child with a 
disability to be informed about their child's progress at least as 
often as parents of nondisabled children and for the report to include 
information on the extent to which the child's progress is sufficient 
to enable the child to achieve the goals by the end of the year.
    One commenter recommended requiring progress reports to be provided 
with enough time to allow changes in the IEP if the goals will not be 
met by the end of the year. A few commenters recommended requiring the 
reports to explain, in reasonable detail and with specific progress 
measures, the extent to which the child is making progress on each of 
the annual goals in the child's IEP. Another commenter recommended 
requiring LEAs to report progress in measurable terms. The commenter 
stated that many LEAs convert a measurable objective or goal into 
subjective and vague language, such as ``adequate progress,'' which 
does not provide objective measurements of achievement. Another 
commenter recommended requiring progress reports to be specifically 
linked to the measurable outcomes of a child's annual goals.
    Numerous commenters requested that progress reports be provided 
with school report cards. However, one commenter stated that not all 
school districts have quarterly report cards, and, therefore, the 
regulations should require progress reports to be issued at the same 
time as other report cards in the district.
    Discussion: Section 300.320(a)(3)(ii) follows the language in 
section 614(d)(1)(A)(i)(III) of the Act and requires the IEP to include 
a description of when periodic reports on the child's progress toward 
meeting the annual goals will be provided. The Act does not require 
report cards or quarterly report cards. Report cards and quarterly 
report cards are used as examples in Sec.  300.320(a)(3)(ii) of when 
periodic reports on the child's progress toward meeting the annual 
goals might be provided. The specific times that progress reports are 
provided to parents and the specific manner and format in which a 
child's progress toward meeting the annual goals is reported is best 
left to State and local officials to determine. In addition, under 
section 614(d)(1)(A)(ii)(I) of the Act we cannot interpret section 614 
of the Act to require additional information in a child's IEP that is 
not specifically required by the Act.
    Changes: None.
Statement of Special Education and Related Services (Sec.  
300.320(a)(4))
    Comment: One commenter recommended requiring the regular education 
teacher to offer modifications for every assignment given to a child 
with a disability.
    Discussion: It would be inconsistent with the Act to implement the 
commenter's recommendation. Consistent with Sec.  300.320(a)(4) and 
section 614(d)(1)(A)(i)(IV) of the Act, the child's IEP Team determines 
the special education and related services, and supplementary aids, 
services, and other supports that are needed for the child to advance 
appropriately toward meeting the child's annual goals.
    Changes: None.
    Comment: A significant number of commenters recommended the 
regulations include a definition of ``peer-reviewed research,'' as used 
in Sec.  300.320(a)(4). One commenter recommended that the definition 
of peer-reviewed research be consistent with the work of the National 
Research Council.
    Discussion: ``Peer-reviewed research'' generally refers to research 
that is reviewed by qualified and independent reviewers to ensure that 
the quality of the information meets the standards of the field before 
the research is published. However, there is no single definition of 
``peer reviewed research'' because the review process varies depending 
on the type of information to be reviewed. We believe it is beyond the 
scope of these regulations to include a specific definition of ``peer-
reviewed research'' and the various processes used for peer reviews.
    Changes: None.
    Comment: Some commenters recommended revising Sec.  300.320(a)(4) 
to require special education and related services, and supplementary 
aids and services, to be based on ``evidenced-based practices'' rather 
than ``peer-reviewed research.'' A few commenters recommended revising 
Sec.  300.320(a)(4) to require special education and related services, 
and supplementary aids and services to be based on peer-reviewed 
research, evidenced-based practices,

[[Page 46665]]

and emerging best practices. Many commenters recommended clarifying the 
meaning and intent of the phrase ``to the extent practicable.'' One 
commenter recommended requiring all IEP Team meetings to include a 
focused discussion on research-based methods and to provide parents 
with prior written notice when the IEP Team refuses to provide 
documentation of research-based methods.
    Discussion: Section 300.320(a)(4) incorporates the language in 
section 614(d)(1)(A)(i)(IV) of the Act, which requires that special 
education and related services and supplementary aids and services be 
based on peer-reviewed research to the extent practicable. The Act does 
not refer to ``evidenced-based practices'' or ``emerging best 
practices,'' which are generally terms of art that may or may not be 
based on peer-reviewed research. Therefore, we decline to change Sec.  
300.320(a)(4) in the manner suggested by the commenters. The phrase 
``to the extent practicable,'' as used in this context, generally means 
that services and supports should be based on peer-reviewed research to 
the extent that it is possible, given the availability of peer-reviewed 
research. We do not believe further clarification is necessary.
    We decline to require all IEP Team meetings to include a focused 
discussion on research-based methods or require public agencies to 
provide prior written notice when an IEP Team refuses to provide 
documentation of research-based methods, as we believe such 
requirements are unnecessary and would be overly burdensome.
    Changes: None.
    Comment: One commenter recommended clear guidance on the 
responsibilities of States, school districts, and school personnel to 
provide special education and related services, and supplementary aids 
and services that are based on peer-reviewed research. One commenter 
requested clarification that the requirement for special education and 
related services, and supplementary aids and services to be based on 
peer-reviewed research does not mean that the service with the greatest 
body of research is the service necessarily required for FAPE. Another 
commenter requested that the regulations clarify that the failure of a 
public agency to provide special education and related services, and 
supplementary aids and services based on peer-reviewed research, does 
not result in a denial of FAPE, and that the burden of proof is on the 
moving party when the denial of FAPE is at issue.
    Discussion: Section 612(d)(1)(A)(i)(IV) of the Act requires special 
education and related services, and supplementary aids and services, to 
be based on peer-reviewed research to the extent practicable. States, 
school districts, and school personnel must, therefore, select and use 
methods that research has shown to be effective, to the extent that 
methods based on peer-reviewed research are available. This does not 
mean that the service with the greatest body of research is the service 
necessarily required for a child to receive FAPE. Likewise, there is 
nothing in the Act to suggest that the failure of a public agency to 
provide services based on peer-reviewed research would automatically 
result in a denial of FAPE. The final decision about the special 
education and related services, and supplementary aids and services 
that are to be provided to a child must be made by the child's IEP Team 
based on the child's individual needs.
    With regard to the comment regarding the burden of proof when the 
denial of FAPE is at issue, we have addressed this issue in the 
Analysis of Comments and Changes section for subpart E.
    Changes: None.
    Comment: Several commenters recommended including a construction 
clause in the regulations to clarify that no child should be denied 
special education and related services, or supplementary aids and 
services, based on a lack of available peer-reviewed research on a 
particular service to be provided.
    Discussion: We do not believe that the recommended construction 
clause is necessary. Special education and related services, and 
supplementary aids and services based on peer-reviewed research are 
only required ``to the extent practicable.'' If no such research 
exists, the service may still be provided, if the IEP Team determines 
that such services are appropriate. A child with a disability is 
entitled to the services that are in his or her IEP whether or not they 
are based on peer-reviewed research. The IEP Team, which includes the 
child's parent, determines the special education and related services, 
and supplementary aids and services that are needed by the child to 
receive FAPE.
    Changes: None.
    Comment: A few commenters recommended that the regulations clarify 
that the reference to ``peer-reviewed research'' does not require an 
IEP to include instructional methodologies. However, a few commenters 
recommended that the regulations require all elements of a program 
provided to a child, including program methodology, to be specified in 
the child's IEP.
    Discussion: There is nothing in the Act that requires an IEP to 
include specific instructional methodologies. Therefore, consistent 
with section 614(d)(1)(A)(ii)(I) of the Act, we cannot interpret 
section 614 of the Act to require that all elements of a program 
provided to a child be included in an IEP. The Department's 
longstanding position on including instructional methodologies in a 
child's IEP is that it is an IEP Team's decision. Therefore, if an IEP 
Team determines that specific instructional methods are necessary for 
the child to receive FAPE, the instructional methods may be addressed 
in the IEP.
    Changes: None.
    Comment: A few commenters requested that the regulations require 
programs provided to a child with a disability to be research-based 
with demonstrated effectiveness in addressing the particular needs of a 
child.
    Discussion: While the Act clearly places an emphasis on practices 
that are based on scientific research, there is nothing in the Act that 
requires all programs provided to children with disabilities to be 
research-based with demonstrated effectiveness in addressing the 
particular needs of a child where not practicable. We do not believe 
the recommended change should be made because, ultimately, it is the 
child's IEP Team that determines the special education and related 
services that are needed by the child in order for the child to receive 
FAPE.
    Changes: None.
    Comment: A few commenters recommended that Sec.  300.320(a)(4) 
specifically refer to assistive technology devices as supplementary 
aids that must be provided to the child.
    Discussion: It is not necessary to refer to assistive technology 
devices in Sec.  300.320(a)(4). Section 300.324(a)(2)(v), consistent 
with section 614(d)(3)(B)(v) of the Act, already requires the IEP Team 
to consider whether the child needs assistive technology devices and 
services.
    Changes: None.
Participation With Nondisabled Children (Sec.  300.320(a)(5))
    Comment: Many commenters recommended that Sec.  300.320(a)(5), 
regarding the participation of children with disabilities with 
nondisabled children, follow the language in section 614(d)(1)(A)(i)(V) 
of the Act and use the term ``regular class'' instead of ``regular 
educational environment.'' One commenter stated that parents, school 
staff, and the community consider the ``regular class'' to be the place 
where a

[[Page 46666]]

child's nondisabled peers go to school, while ``regular educational 
environment'' is interpreted to be anywhere in the school, such as down 
the hallway, in a separate wing of the school, or across the lunch 
room. One commenter stated that the term ``regular education 
environment'' could be interpreted to mean only special classes such as 
art, music, and gym. A few commenters recommended defining ``regular 
education environment'' to mean the participation of children with 
disabilities with their nondisabled peers in the regular classroom and 
other educational settings, including nonacademic settings.
    Discussion: We agree that use of the term ``regular educational 
environment'' may be misinterpreted. Therefore, we will revise Sec.  
300.320(a)(5) to require the IEP to include an explanation of the 
extent, if any, to which the child will not participate with 
nondisabled children in the regular class.
    Changes: We have changed Sec.  300.320(a)(5) to refer to the 
``regular class'' instead of the ``regular education environment.''
    Comment: One commenter recommended adding language to Sec.  
300.320(a)(5) for preschool children with disabilities and stated that 
``regular education environment'' should be replaced with ``settings 
with typically developing peers.''
    Discussion: Section 300.320(a)(5) follows the language in section 
614(d)(1)(A)(i)(V) of the Act and applies to all children with 
disabilities covered by Part B of the Act, which includes preschool 
children under section 619 of the Act. We do not believe it is 
necessary to change the regulations in the manner suggested by the 
commenter because the ``regular class'' includes a preschool setting 
with typically developing peers.
    Changes: None.
Statewide and Districtwide Assessments (Sec.  300.320(a)(6))
    Comment: A few commenters recommended requiring parents to be 
informed in writing of the consequences of their child taking an 
alternate assessment, including any effect on the child's eligibility 
for graduation with a regular high school diploma. The commenters 
stated that providing this information to parents is particularly 
important in States that require passing a State exam in order to 
obtain a regular high school diploma.
    Discussion: Section 612(a)(16) of the Act requires that the State 
(or, in the case of a districtwide assessment, the LEA) develop and 
implement guidelines for the participation of children with 
disabilities in alternate assessments, including alternate assessments 
aligned to alternate achievement standards permitted under 34 CFR 
200.1(d). Section 200.6(a)(2)(iii)(A)(2) of the ESEA title I 
regulations requires States to inform parents that their child's 
achievement will be measured against alternate achievement standards.
    We acknowledge that these requirements do not specifically require 
a public agency to inform parents of any potential consequences of a 
child participating in an alternate assessment. The commenters' 
recommendation will be considered along with other comments we have 
received in response to the NPRM proposing changes to Sec.  300.160, 
which was published in the Federal Register on December 15, 2005 (70 FR 
74624). As noted elsewhere in this preamble, the final regulations for 
Sec.  300.160, regarding participation in assessments, will be 
published in a separate final rule.
    Changes: None.
    Comment: One commenter recommended defining ``appropriate 
accommodations'' and ``individual appropriate accommodations'' as 
accommodations that are needed to meet the child's unique needs that 
maintain and preserve test validity, reliability, and technical testing 
standards.
    Discussion: Section 614(d)(1)(A)(i)(VI)(aa) of the Act requires 
that the IEP include a statement of any individual appropriate 
accommodations that are necessary to measure the academic and 
functional performance of the child on State and districtwide 
assessments. The requirements in proposed Sec.  300.160, published in 
the Federal Register on December 15, 2005, provide additional 
information about accommodations and the participation of children with 
disabilities in State and districtwide assessments. As noted elsewhere 
in this preamble, the final Sec.  300.160 will be published in a 
separate final rule. We will consider the commenter's recommendation 
along with other comments received in response to the NPRM proposing 
changes to Sec.  300.160.
    Changes: None.
    Comment: One commenter recommended changing the word ``must'' in 
Sec.  300.320(a)(6)(ii) to state that if an IEP Team determines that 
the child will take an alternate assessment, the IEP ``will'' include a 
statement of why the child cannot participate in the regular 
assessment. The commenter stated that ``will'' is less coercive and 
more in line with the consensus decision-making model of IEP Team 
meetings.
    Discussion: Generally, we have used the word ``must'' for 
regulations that describe what a public agency must do and the word 
``will'' when referring to what the IEP Team has determined a child 
will do. While we understand the commenter's concern, we believe it is 
unnecessary to change Sec.  300.320(a)(6)(ii).
    Changes: None.
    Comment: One commenter recommended that Sec.  300.320(a)(6) clarify 
that a child with the most significant cognitive disabilities, who has 
been determined by the IEP Team to be unable to make progress toward 
the regular achievement standards even with the best instruction, will 
be taught and assessed based on alternate achievement standards.
    Discussion: It would be inappropriate to require a child with the 
most significant cognitive disabilities to be taught and assessed based 
on alternate achievement standards. Consistent with section 
614(d)(1)(A)(i)(VI)(bb) of the Act, the child's IEP Team is responsible 
for determining the particular assessment that is appropriate for a 
child. Under Sec.  200.1(d) of the ESEA title I regulations, a State is 
permitted, but not required, to adopt alternate achievement standards 
and develop an alternate assessment based on those standards for 
children with the most significant cognitive disabilities. There is no 
requirement under the Act or the ESEA that a State develop an alternate 
assessment based on alternate achievement standards.
    Changes: None.
    Comment: One commenter stated that Sec.  300.320(a)(6) should 
include information about alternate assessments because there will be 
children who will not be successful with generic accommodations.
    Discussion: Section 612(a)(16)(C) of the Act provides information 
regarding alternate assessments and the requirements for alternate 
assessments under the Act. As noted elsewhere in this preamble, the 
final regulations for Sec.  300.160, which will incorporate the 
requirements in section 612(a)(16) of the Act and provide further 
clarification regarding the participation of children with disabilities 
in assessments, will be published in a separate document. We will 
consider the commenter's recommendation along with other comments 
received in response to the NPRM proposing changes to Sec.  300.160.
    Changes: None.
    Comment: One commenter suggested revising Sec.  300.320(a)(6)(i), 
which requires the IEP to include a statement of any individual 
appropriate accommodations that are necessary to

[[Page 46667]]

``measure'' the academic and functional performance of the child on 
State and districtwide assessments. The commenter recommended revising 
the statement to require the IEP to include a statement of any 
individual appropriate accommodations that are necessary to allow the 
child to ``participate'' in assessments.
    Discussion: To change the regulation in the manner suggested by the 
commenter would be inconsistent with the Act. Section 300.320(a)(6)(i) 
reflects the language in section 614(d)(1)(A)(i)(VI)(aa) of the Act and 
requires accommodations that are necessary to measure a child's 
performance. Accommodations that allow a child to ``participate'' in 
assessments could include accommodations that invalidate the child's 
test score, thereby resulting in an assessment that does not 
``measure'' a child's performance.
    Changes: None.
Initiation, Frequency, Location, and Duration of Services (Sec.  
300.320(a)(7))
    Comment: One commenter recommended clarifying that the term 
``duration'' in Sec.  300.320(a)(7), regarding services and 
modifications in the IEP, refers to the length of a particular service 
session and not the entire IEP.
    Discussion: The meaning of the term ``duration'' will vary, 
depending on such things as the needs of the child, the service being 
provided, the particular format used in an IEP, and how the child's day 
and IEP are structured. What is required is that the IEP include 
information about the amount of services that will be provided to the 
child, so that the level of the agency's commitment of resources will 
be clear to parents and other IEP Team members. The amount of time to 
be committed to each of the various services to be provided must be 
appropriate to the specific service, and clearly stated in the IEP in a 
manner that can be understood by all involved in the development and 
implementation of the IEP.
    Changes: None.
    Comment: One commenter requested that the regulations require the 
IEP to include information about the person(s) providing the services, 
rather than just a listing of the services.
    Discussion: The Act does not require the IEP to include information 
about the specific person(s) providing the services. Section 
614(d)(1)(A)(ii)(I) of the Act precludes the Department from 
interpreting section 614 of the Act to require public agencies to 
include information in the IEP beyond what is specifically required by 
the Act.
    Changes: None.
Transition Services (Sec.  300.320(b))
    Comment: Many commenters disagreed with changing the age at which 
transition services must be provided to a child with a disability from 
14 years to 16 years. One commenter recommended that transition 
services begin at age 13. Another commenter recommended that transition 
services begin before high school, because if there is a choice of high 
schools, transition goals may be a determining factor in the selection 
process. A few commenters requested that the regulations clarify that 
States may continue to begin transition services with the first IEP 
after the child turns age 14. Some commenters recommended that 
transition begin two to four full school years before the child is 
expected to graduate because some children may exit school at age 17.
    Numerous commenters recommended that the regulations clarify that 
States have discretion to require transition services to begin before 
age 16 for all children in the State. However, a few commenters 
recommended removing the phrase ``or younger if determined appropriate 
by the IEP Team'' in Sec.  300.320(b) because the language is not in 
the Act and promotes additional special education services.
    A few commenters recommended that the regulations require 
transition planning to begin earlier than age 16 if necessary for the 
child to receive FAPE. Other commenters recommended clarifying that, in 
order for transition services to begin by age 16, transition 
assessments and other pre-planning needs that would facilitate movement 
to post-school life must be completed prior to the child's 16th 
birthday. One commenter recommended requiring transition planning to 
begin no later than the child's freshman year in high school and that 
this planning include selecting assessment instruments and completing 
assessments that will lead to the development of transition goals and 
objectives in the child's IEP.
    Discussion: Section 614(d)(1)(A)(i)(VIII) of the Act requires that 
transition services begin no later than the first IEP to be in effect 
when the child turns 16. Because IEP Team decisions must always be 
individualized, we have included the phrase ``or younger if determined 
appropriate by the IEP Team'' in Sec.  300.320(b).
    The Act does not require transition planning or transition 
assessments, as recommended by some commenters. Therefore, consistent 
with section 614(d)(1)(A)(ii)(I) of the Act, we cannot interpret 
section 614 of the Act to require that IEPs include this information 
because it is beyond what is specifically required in the Act.
    The Department believes that a State could require transition 
services, if it chose to do so, to begin before age 16 for all children 
in the State. However, consistent with Sec.  300.199(a)(2) and section 
608(a)(2) of the Act, a State that chooses to require transition 
services before age 16 for all children would have to identify in 
writing to its LEAs and to the Secretary that such rule, regulation, or 
policy is a State-imposed requirement that is not required by Part B of 
the Act and Federal regulations.
    Changes: None.
    Comment: A few commenters recommended that Sec.  300.320(b) clarify 
that the child is a participating IEP Team member and that the IEP Team 
is required to consider the child's preferences in developing 
transition goals and services.
    Discussion: The clarification requested is not needed because Sec.  
300.321(b)(1) already requires the public agency to invite a child with 
a disability to attend the child's IEP Team meeting, if a purpose of 
the meeting is to consider the child's postsecondary goals and the 
transition services needed to assist the child to reach those goals. In 
addition, Sec.  300.321(b)(2) requires the public agency to take steps 
to ensure that the child's preferences and interests are considered, if 
the child does not attend the IEP Team meeting. We believe that this is 
sufficient clarification that, for the purposes mentioned by the 
commenter, the child is a participating IEP Team member.
    Changes: None.
    Comment: A few commenters requested that the regulations clarify 
whether ``transition assessments'' are formal evaluations or competency 
assessments. One commenter stated that transition assessments should be 
different for a college-bound child with a disability than for a child 
with severe disabilities whose future is a group home.
    Discussion: We do not believe the requested clarification is 
necessary because the specific transition assessments used to determine 
appropriate measurable postsecondary goals will depend on the 
individual needs of the child, and are, therefore, best left to States 
and districts to determine on an individual basis.
    Changes: None.
    Comment: One commenter requested clarification of the term 
``postsecondary goals.'' Another commenter recommended defining 
``postsecondary

[[Page 46668]]

goals'' in the definition section of these regulations.
    Discussion: We do not believe it is necessary to include a 
definition of ``postsecondary goals'' in the regulations. The term is 
generally understood to refer to those goals that a child hopes to 
achieve after leaving secondary school (i.e., high school).
    Changes: None.
    Comment: One commenter requested clarification regarding whether 
Sec.  300.320(b)(1) requires measurable postsecondary goals in each of 
the areas of training, education, employment, and, independent living 
skills.
    Discussion: Beginning not later than the first IEP to be in effect 
when the child turns 16 years of age, section 614(d)(1)(A)(i)(VIII)(aa) 
of the Act requires a child's IEP to include measurable postsecondary 
goals in the areas of training, education, and employment, and, where 
appropriate, independent living skills. Therefore, the only area in 
which postsecondary goals are not required in the IEP is in the area of 
independent living skills. Goals in the area of independent living are 
required only if appropriate. It is up to the child's IEP Team to 
determine whether IEP goals related to the development of independent 
living skills are appropriate and necessary for the child to receive 
FAPE.
    Changes: None.
    Comment: Some commenters recommended that the regulations retain 
the requirement in current Sec.  300.347(b)(1) that requires IEPs to 
include a statement of the transition service needs of the child under 
applicable components of the child's IEP that focus on the child's 
courses of study (such as participation in advanced-placement courses 
or a vocational education program).
    Discussion: The requirement referred to by the commenter is already 
in the regulations. Section 300.320(b)(2) includes a reference to 
``courses of study'' as part of transition services, consistent with 
section 614(d)(1)(A)(i)(VIII)(bb) of the Act. The examples in current 
Sec.  300.347(b)(2) (i.e., advanced placement course or a vocational 
education program) are not included in Sec.  300.320(b)(2) because we 
do not believe they are necessary to understand and implement the 
requirement.
    Changes: None.
    Comment: Several commenters recommended that the regulations 
explicitly require transition services to include vocational and career 
training through work-study and documentation of accommodations needed 
in the workplace.
    Discussion: The Act does not require IEPs to include vocational and 
career training or documentation of workplace accommodations. 
Consistent with section 614(d)(1)(A)(ii)(I) of the Act, we cannot 
interpret section 614 of the Act to require IEPs to include information 
beyond what is specifically required in the Act. It is up to each 
child's IEP Team to determine the transition services that are needed 
to meet the unique transition needs of the child.
    Changes: None.
    Comment: A few commenters recommended that the regulations clarify 
that schools can use funds provided under Part B of the Act to support 
children in transitional programs on college campuses and in community-
based settings.
    Discussion: We do not believe that the clarification requested by 
the commenters is necessary to add to the regulations because, as with 
all special education and related services, it is up to each child's 
IEP Team to determine the special education and related services that 
are needed to meet each child's unique needs in order for the child to 
receive FAPE. Therefore, if a child's IEP Team determines that a 
child's needs can best be met through participation in transitional 
programs on college campuses or in community-based settings, and 
includes such services on the child's IEP, funds provided under Part B 
of the Act may be used for this purpose.
    Changes: None.
    Comment: One commenter recommended more accountability for 
transition services.
    Discussion: The Act contains significant changes to the monitoring 
and enforcement requirements under Part B of the Act. Section 300.600, 
consistent with section 616(a) of the Act, requires the primary focus 
of monitoring to be on improving educational results and functional 
outcomes for children with disabilities. The provisions in section 
616(a) and (b)(2)(C)(ii) of the Act set forth the responsibility of 
States to monitor the implementation of the Act, enforce the Act, and 
annually report on performance of the State and each LEA.
    Section 300.600(c), consistent with section 616(a)(3) of the Act, 
requires States to measure performance in monitoring priority areas 
using quantifiable indicators and such qualitative indicators as are 
needed to adequately measure performance. Section 300.601 reflects 
statutory language in section 616(b) of the Act and requires States to 
have a performance plan that evaluates their efforts to implement the 
requirement and purposes of the Act. Transition services are 
specifically being addressed in State performance plans. We believe 
that these changes to the monitoring and enforcement requirements will 
ensure that States and LEAs are held accountable for the transition 
services they provide.
    Changes: None.
    Comment: One commenter requested that the regulations be revised to 
include an affirmative statement that transition services can be used 
to drive the IEP for the child.
    Discussion: It would be inappropriate to include such a requirement 
in these regulations because, while section 614(d)(1)(A)(i)(VIII) of 
the Act includes transition services in a child's IEP, there is no 
suggestion that it be the only component or the component that governs 
a child's IEP.
    Changes: None.
Transfer of Rights at Age of Majority (Sec.  300.320(c))
    Comment: One commenter recommended that the regulations specify how 
the child is to be informed of the transfer of rights. The commenter 
also recommended that the regulations require public agencies to 
explain to the child the rights that will transfer to the child on 
reaching the age of majority.
    Discussion: The specific manner in which a child is informed about 
his or her rights is best left to States, districts, and IEP Teams to 
decide, based on their knowledge of the child and any unique local or 
State requirements. Section 300.320(c), consistent with section 
614(d)(1)(A)(i)(VIII)(cc) of the Act, already requires the IEP to 
include a statement that the child has been informed of the child's 
rights under Part B of the Act, if any, that will transfer to the child 
on reaching the age of majority. We do not believe further 
clarification is necessary.
    Changes: None.
    Comment: One commenter stated that Sec.  300.320(c) is redundant 
with Sec.  300.520.
    Discussion: Sections 300.320 and 300.520 are related, but not 
redundant. Section 300.320(c) requires the IEP to include a statement 
that the child has been informed of the child's rights under Part B of 
the Act that will transfer to the child on reaching the age of 
majority. Section 300.520 provides additional information about the 
transfer of rights as part of the procedural safeguards for parents and 
children under the Act.
    Changes: None.

[[Page 46669]]

Construction (Sec.  300.320(d))
    Comment: One commenter stated that Sec.  300.320(d)(2) constrains 
States and LEAs from adding elements to the IEP and misses the 
opportunity to make sense of the one percent and two percent rules 
under the ESEA. One commenter recommended that the regulations 
explicitly state that nothing limits a State from adding its own 
mandatory components of the IEP, especially given the purpose and 
intent to align the Act with the ESEA.
    Discussion: There is nothing in the Act that limits States and LEAs 
from adding elements to the IEP, so long as the elements are not 
inconsistent with the Act or these regulations, and States do not 
interpret the Act to require these additional elements. Section 
300.320(d), consistent with section 614(d)(1)(A)(ii)(I) of the Act, 
does not prohibit States or LEAs from requiring IEPs to include 
information beyond that which is explicitly required in section 614 of 
the Act. However, if a State requires IEPs to include information 
beyond that which is explicitly required in section 614 of the Act, the 
State must identify in writing to its LEAs and the Secretary that it is 
a State-imposed requirement and not one based on the Act or these 
regulations, consistent with Sec.  300.199(a)(2) and section 608(a)(2) 
of the Act.
    Changes: None.
IEP Team (Sec.  300.321)
    Comment: One commenter recommended that the regulations clarify 
whether regular education teachers are required at every IEP Team 
meeting.
    Discussion: Consistent with Sec.  300.321(a)(2) and section 
614(d)(1)(B)(ii) of the Act, a regular education teacher is a required 
member of an IEP Team if the child is, or may be, participating in the 
regular education environment. In such cases, the regular education 
teacher would be expected to attend each IEP Team meeting, unless the 
regular education teacher has been excused from attending a meeting, 
pursuant to Sec.  300.321(e) and section 614(d)(1)(C) of the Act. We do 
not believe further clarification is necessary.
    Changes: None.
    Comment: Many comments were received recommending that the IEP Team 
include additional members beyond those required by Sec.  300.321(a). 
Several commenters stated that occupational therapists should be part 
of the IEP Team because of their unique training in assisting children 
to learn in changing environments. A few commenters recommended that a 
recreation therapist or specialist be included on the IEP Team. Other 
commenters stated that a practitioner skilled in assistive technology 
should be included. Several commenters recommended that the IEP Team 
include individuals with knowledge or special expertise regarding the 
related services needs of a child.
    Some commenters stated that individuals from the child welfare 
system should be included as members of the IEP Team and should be 
invited to attend IEP Team meetings when the purpose of the meeting is 
to consider transition services for a child who is a ward of the State 
or in the custody of the child welfare agency. The commenters 
recommended that the IEP Team should specifically include any of the 
following individuals: The child's attorney or guardian ad litem, court 
appointed special advocate, caseworker, foster parent, caretaker, or 
judge.
    Discussion: It would be inappropriate to require that individuals 
with specific professional knowledge or qualifications attend all IEP 
Team meetings. These decisions should be made on a case-by-case basis 
in light of the needs of a particular child. Section 300.321(a)(6), 
consistent with section 614(d)(1)(B)(vi) of the Act, already allows 
other individuals who have knowledge or special expertise regarding the 
child, including related services personnel, as appropriate, to be 
included as members of a child's IEP Team at the discretion of the 
parent or the agency. Therefore, we decline to make the changes 
recommended by the commenters. However, it should be noted that if a 
public agency wishes to invite officials from another agency, such as 
officials of the child welfare agency that are not representing the 
child, the public agency must obtain parental consent for the 
individual to participate in the IEP Team meeting because confidential 
information about the child from the child's education records would be 
shared at the meeting.
    Changes: None.
    Comment: A few commenters recommended that the IEP Team include a 
representative of the private school or facility when an IEP is 
developed for a child in a private school.
    Discussion: We believe the commenters' concerns are already 
addressed in the regulations. Section 300.325(a) requires that, before 
a public agency places a child with a disability in, or refers a child 
to, a private school or facility, the agency must initiate and conduct 
a meeting to develop an IEP for the child and must ensure that a 
representative of the private school or facility attends the meeting.
    Changes: None.
    Comment: A few commenters stated that the IEP Team should include 
other persons whose presence on the IEP Team would be beneficial to the 
child, regardless of their academic qualifications. Other commenters 
recommended that the IEP Team include credentialed and licensed 
personnel, even though it is important to recognize that people who are 
not credentialed have important roles to play.
    Discussion: We believe the commenters' concerns are already 
addressed. Section 614(d)(1)(B)(vi) of the Act states that other 
individuals who have knowledge or special expertise regarding the child 
may be included as members of a child's IEP Team at the discretion of 
the parent or the agency. Consistent with Sec.  300.321(c), the party 
(parents or public agency) who invites the individual to be a member of 
the IEP Team determines the knowledge or special expertise of such 
individual.
    Changes: None.
    Comment: Several commenters recommended that the IEP Team include 
an IEP manager who would communicate with IEP members not in 
attendance, ensure that the IEP requirements are met, and assume 
responsibility for implementing the IEP.
    Discussion: The Act does not require an IEP Team manager as a part 
of the IEP Team. While having one individual manage the provision of 
services under the IEP might be a good practice in particular 
circumstances, we decline to require IEP Team managers for all IEPs 
because, in many cases, it would be unnecessary. In addition, to ensure 
that all IEP Team members are aware of their responsibilities regarding 
the implementation of a child's IEP, Sec.  300.323(d) requires that the 
child's IEP be accessible to each regular education teacher, special 
education teacher, related services provider, and any other service 
provider who is responsible for its implementation.
    Changes: None.
    Comment: A few commenters recommended that the special education 
teacher on a child's IEP Team should be required to have expertise in 
the area of the child's disability. The commenters stated that this is 
especially important for children with dyslexia and children with other 
learning disabilities.
    A few commenters recommended that the child's future teacher be 
required to attend an end-of-the-year IEP Team meeting.

[[Page 46670]]

    Discussion: Section 612(d)(1)(B)(iii) of the Act requires that not 
less than one special education teacher of the child (or where 
appropriate, not less than one special education provider of the child) 
be included on the IEP Team. Decisions as to which particular 
teacher(s) or special education provider(s) are members of the IEP Team 
and whether IEP Team meetings are held at the end of the school year or 
some other time, are best left to State and local officials to 
determine, based on the needs of the child.
    Changes: None.
    Comment: A few commenters recommended defining ``regular education 
environment'' in Sec.  300.321(a)(2) to mean the regular classroom and 
the non-academic environment. A few commenters requested that the 
regulations require children to be in the regular classroom and in 
nonacademic activities with their nondisabled peers.
    Discussion: It is not necessary to define ``regular education 
environment'' or to repeat that children with disabilities should be 
included in the regular classroom and in nonacademic activities with 
their nondisabled peers. The LRE requirements in Sec. Sec.  300.114 
through 300.120, consistent with section 612(a)(5) of the Act, are 
clear that each public agency must ensure that, to the maximum extent 
appropriate, children with disabilities are educated with children who 
are nondisabled. Section 300.117, consistent with section 612(a)(5) of 
the Act, is clear that this includes nonacademic and extracurricular 
services and activities.
    Changes: None.
    Comment: A few commenters stated that a special education provider 
should be allowed to substitute for a special education teacher only 
when the child does not have a special education teacher because the 
role of a special education teacher is different from the role of a 
special education provider.
    Discussion: The recommended change is not appropriate. Section 
300.321(a)(2) incorporates the language in section 614(d)(1)(B)(iii) of 
the Act and requires the IEP Team to include not less than one special 
education teacher, or where appropriate, not less than one special 
education provider. The special education provider may substitute when 
there is no special education teacher. However, the Act leaves open the 
possibility that there may be other appropriate circumstances when a 
special education provider could substitute for a special education 
teacher. These are decisions best left to State and local officials.
    Changes: None.
    Comment: A few commenters recommended that the regulations define 
``special education teacher'' and ``special education provider,'' as 
used in Sec.  300.321(a)(3).
    Discussion: Section 300.321(a)(3), consistent with section 
614(d)(1)(B)(iii) of the Act, requires that the IEP Team include not 
less than one special education teacher, or where appropriate, not less 
than one special education provider of the child. This is not a new 
requirement. The same requirement is in current Sec.  300.344(a)(3). As 
noted in Attachment I of the March 12, 1999 final regulations, the 
special education teacher or provider who is a member of the child's 
IEP Team should be the person who is, or will be, responsible for 
implementing the IEP. For example, if the child's disability is a 
speech impairment, the special education teacher or special education 
provider could be the speech language pathologist. We do not believe 
that further clarification is needed.
    Changes: None.
    Comment: Many commenters recommended that the regulations require 
the IEP Team to include a representative of the public agency who has 
the authority to commit resources. One commenter stated that the 
failure of this individual to attend an IEP Team meeting lengthens the 
decision-making process, delays services, and removes parents from 
equal participation in an IEP Team meeting.
    Discussion: Section 300.321(a)(4) incorporates the language in 
section 614(d)(1)(B)(iv) of the Act and requires the IEP Team to 
include a representative of the public agency who is qualified to 
provide or supervise the provision of specially designed instruction to 
meet the unique needs of children with disabilities; is knowledgeable 
about the general education curriculum; and is knowledgeable about the 
availability of LEA resources.
    A public agency may determine which specific staff member will 
serve as the agency representative in a particular IEP Team meeting, so 
long as the individual meets these requirements. It is important, 
however, that the agency representative have the authority to commit 
agency resources and be able to ensure that whatever services are 
described in the IEP will actually be provided. However, we do not need 
to regulate in the manner suggested, as the public agency will be bound 
by the IEP that is developed at an IEP Team meeting.
    Changes: None.
    Comment: One commenter recommended that the IEP Team include an 
individual who is qualified to conduct individual diagnostic 
assessments.
    Discussion: Section 300.321(a)(5) follows the language in section 
614(d)(1)(B)(v) of the Act and requires the IEP Team to include an 
individual who can interpret the instructional implications of 
evaluation results. An individual who is qualified to conduct a 
particular assessment does not necessarily have the skills or knowledge 
to assist the IEP Team in determining the special education, related 
services, and other supports that are necessary in order for the child 
to receive FAPE. Therefore, we do not believe that it is necessary to 
require that the IEP Team also include an individual who can conduct 
diagnostic assessments.
    Changes: None.
    Comment: A few commenters expressed concern that IEP Team meetings 
are being used by parent advocates to train parents of other children, 
and by attorneys to train their associates about the school's IEP 
process. In order to prevent this, these commenters stated that the 
regulations should identify the specific knowledge and expertise that 
an individual must have to be included on an IEP Team. One commenter 
expressed concern about confidentiality rights; the lack of credentials 
for advocates; and the lack of authority for a parent or school 
district to prevent advocates from participating in an IEP Team 
meeting.
    Discussion: Section 614(d)(1)(B)(vi) of the Act allows other 
individuals who have knowledge or special expertise regarding the child 
to be included on a child's IEP Team. Section 300.321(c) provides that 
the determination of the knowledge or special expertise of these 
individuals must be made by the party (parents or public agency) who 
invited the individual to be a member of the IEP Team. We continue to 
believe that this determination is best left to parents and the public 
agency. We also believe that it would be inappropriate to regulate on 
the specific knowledge and expertise that an individual must have to be 
included on an IEP Team because it would be burdensome for both parents 
and public agencies.
    Additionally, nothing in the Act prevents parents from consenting 
to have an observer who is not a member of the IEP Team present at the 
meeting, as the parent can consent to the sharing of confidential 
information about the child. With that exception, it should be 
emphasized that a person who does not have knowledge and special 
expertise regarding the child and who is not requested to be present at 
the IEP Team meeting by the parent or public agency would not be 
permitted to be a member

[[Page 46671]]

of the IEP Team or be permitted to attend the IEP Team meeting as an 
observer.
    Changes: None.
    Comment: A few commenters recommended changing Sec.  300.321(a)(7) 
to clarify that a parent has the right to bring their child to any or 
all IEP Team meetings at any age.
    Discussion: We do not believe that the additional clarification 
requested by the commenters is necessary. Section 614(d)(1)(B)(vii) of 
the Act clearly states that the IEP Team includes the child with a 
disability, whenever appropriate. Generally, a child with a disability 
should attend the IEP Team meeting if the parent decides that it is 
appropriate for the child to do so. If possible, the agency and parent 
should discuss the appropriateness of the child's participation before 
a decision is made, in order to help the parent determine whether or 
not the child's attendance would be helpful in developing the IEP or 
directly beneficial to the child, or both.
    Until the child reaches the age of majority under State law, unless 
the rights of the parent to act for the child are extinguished or 
otherwise limited, only the parent has the authority to make 
educational decisions for the child under Part B of the Act, including 
whether the child should attend an IEP Team meeting.
    Changes: None.
Transition Services Participants (Sec.  300.321(b))
    Comment: A few commenters recommended requiring the public agency 
to invite the child with a disability to attend the child's IEP Team 
meeting no later than age 16 or at least two years prior to the child's 
expected graduation, whichever comes first.
    Discussion: The commenters' concerns are addressed in Sec.  
300.321(b), which requires the public agency to invite a child with a 
disability to attend the child's IEP Team meeting if a purpose of the 
meeting will be the consideration of the postsecondary goals for the 
child and the transition services needed to assist the child in 
reaching the child's postsecondary goals. Furthermore, a child's IEP 
must include transition services beginning not later than the first IEP 
to be in effect when the child turns 16, or younger, if determined 
appropriate by the IEP Team, consistent with Sec.  300.320(b).
    Changes: None.
    Comment: One commenter requested that the regulations clarify that 
parents and children are not required to use the transition services 
offered by agencies that the school invites to the IEP Team meeting.
    Discussion: There is nothing in the Act or these regulations that 
requires a parent or child to participate in transition services that 
are offered by agencies that the public agency has invited to 
participate in an IEP Team meeting. However, if the IEP Team determines 
that such services are necessary to meet the needs of the child, and 
the services are included on the child's IEP, and the parent (or a 
child who has reached the age of majority) disagrees with the services, 
the parent (or the child who has reached the age of majority) can 
request mediation, file a due process complaint, or file a State 
complaint to resolve the issue. We do not believe further clarification 
in the regulations is necessary.
    Changes: None.
    Comment: A few commenters recommended requiring the public agency 
to include all the notice requirements in Sec.  300.322(b) with the 
invitation to a child to attend his or her IEP Team meeting. The 
commenters stated that children need to be fully informed about the 
details and purpose of the meeting in order for them to adequately 
prepare and, therefore, should have the same information that is 
provided to other members of the IEP Team.
    Discussion: We decline to make the suggested change. We believe it 
would be overly burdensome to require a public agency to include all 
the notice requirements in Sec.  300.322(b) with an invitation to a 
child to attend his or her IEP Team meeting, particularly because the 
information is provided to the child's parents who can easily share 
this information with the child. However, when a child with a 
disability reaches the age of majority under State law, the public 
agency must provide any notice required by the Act to both the child 
and the parents, consistent with Sec.  300.520 and section 615(m)(1)(A) 
of the Act.
    Changes: None.
    Comment: One commenter requested clarification regarding the public 
agency's responsibility to invite a child who has not reached the age 
of majority to the child's IEP Team meeting when a parent does not want 
the child to attend.
    Discussion: Section 300.321(b)(1) requires the public agency to 
invite a child with a disability to attend the child's IEP Team meeting 
if a purpose of the meeting will be the consideration of the 
postsecondary goals for the child and the transition services needed to 
assist the child in reaching those goals, regardless of whether the 
child has reached the age of majority. However, until the child reaches 
the age of majority under State law, unless the rights of the parent to 
act for the child are extinguished or otherwise limited, only the 
parent has the authority to make educational decisions for the child 
under Part B of the Act, including whether the child should attend an 
IEP Team meeting.
    Changes: None.
    Comment: A few commenters expressed concern that Sec.  300.321(b) 
does not require children to have sufficient input as a member of the 
IEP Team and recommended requiring the IEP Team to more strongly 
consider the child's preferences and needs.
    Discussion: Section 300.321(a)(7) includes the child as a member of 
the IEP Team, when appropriate, and Sec.  300.321(b)(1) requires the 
public agency to invite the child to the child's IEP Team meeting when 
the purpose of the meeting will be the consideration of the 
postsecondary goals for the child and the transition services needed to 
assist the child in reaching those goals. Further, if the child does 
not attend the IEP Team meeting, Sec.  300.321(b)(2) requires the 
public agency to take other steps to ensure that the child's 
preferences and interests are considered. We believe this is sufficient 
to ensure that the child's preferences and needs are considered and do 
not believe that any changes to Sec.  300.321(b) are necessary.
    Changes: None.
    Comment: One commenter stated that the requirements in Sec.  
300.321(b), regarding transition services participants, are not in the 
Act, are too rigid, and should be modified to provide more flexibility 
for individual children.
    Discussion: We believe that, although not specified in the Act, the 
requirements in Sec.  300.321(b) are necessary to assist children with 
disabilities to successfully transition from high school to employment, 
training, and postsecondary education opportunities. We believe it is 
critical for children with disabilities to be involved in determining 
their transition goals, as well as the services that will be used to 
reach those goals. Section 300.321(b), therefore, requires the public 
agency to invite the child to attend IEP Team meetings in which 
transition goals and services will be discussed. If the child does not 
attend the IEP Team meeting, Sec.  300.321(b)(2) requires the public 
agency to take other steps to ensure that the child's preferences and 
interests are considered.
    We also believe that, when it is likely that a child will be 
involved with other

[[Page 46672]]

agencies that provide or pay for transition services or postsecondary 
services, it is appropriate (provided that the parent, or a child who 
has reached the age of majority, consents) for representatives from 
such agencies to be invited to the child's IEP Team meeting. The 
involvement and collaboration with other public agencies (e.g., 
vocational rehabilitation agencies, the Social Security Administration) 
can be helpful in planning for transition and in providing resources 
that will help children when they leave high school. We believe that 
children with disabilities will benefit when transition services under 
the Act are coordinated with vocational rehabilitation services, as 
well as other supports and programs that serve all children moving from 
school to adult life. Therefore, we decline to change the requirements 
in Sec.  300.321(b).
    Changes: None.
    Comment: One commenter stated that Sec.  300.321(b)(1), which 
requires the public agency to invite the child to an IEP Team meeting 
when transition is to be considered, duplicates Sec.  300.321(a)(7), 
which requires a child with a disability to be invited to his or her 
IEP Team meeting, whenever possible.
    Discussion: These two provisions are not redundant. Section 
300.321(a)(7) requires the public agency to include the child with a 
disability, when appropriate (not ``whenever possible,'' as stated by 
the commenter), in the child's IEP Team meeting, and, thus, provides 
discretion for the parent and the public agency to determine when it is 
appropriate to include the child in the IEP Team meeting. Section 
300.321(b), on the other hand, requires a public agency to invite a 
child to attend an IEP Team meeting when the purpose of the meeting 
will be to consider the postsecondary goals for the child and the 
transition services needed to assist the child to reach those goals. 
The Department believes it is important for a child with a disability 
to participate in determining the child's postsecondary goals and for 
the IEP Team to consider the child's preferences and interests in 
determining those goals.
    Changes: None.
    Comment: Many commenters recommended removing the requirement in 
Sec.  300.321(b)(3) for parental consent (or consent of a child who has 
reached the age of majority) before inviting personnel from 
participating agencies to attend an IEP Team meeting because it is 
burdensome, may reduce the number of agencies participating in the IEP 
Team meeting, and may limit the options for transition services for the 
child. The commenters stated that this consent is unnecessary under 
FERPA, and inconsistent with Sec.  300.321(a)(6), which allows the 
parent or the agency to include other individuals in the IEP Team who 
have knowledge or special expertise regarding the child.
    Discussion: Section 300.321(b)(3) was included in the regulations 
specifically to address issues related to the confidentiality of 
information. Under section 617(c) of the Act the Department must ensure 
the protection of the confidentiality of any personally identifiable 
data, information, and records collected or maintained by the Secretary 
and by SEAs and LEAs pursuant to Part B of the Act, irrespective of the 
requirements under FERPA. We continue to believe that a public agency 
should be required to obtain parental consent (or the consent of a 
child who has reached the age of majority) before inviting 
representatives from other participating agencies to attend an IEP Team 
meeting, consistent with Sec.  300.321(b)(3).
    We do not believe that the requirements in Sec.  300.321(b)(3) are 
inconsistent with Sec.  300.321(a)(6). Section 300.321(a)(6) permits 
other individuals who have knowledge or special expertise regarding the 
child to attend the child's IEP Team meeting at the discretion of the 
parent or the public agency. It is clear that in Sec.  300.321(b)(3), 
the individuals invited to the IEP Team meeting are representatives 
from other agencies who do not necessarily have special knowledge or 
expertise regarding the child. In these situations, we believe that 
consent should be required because representatives of these agencies 
are invited to participate in a child's IEP Team meeting only because 
they may be providing or paying for transition services. We do not 
believe that representatives of these agencies should have access to 
all the child's records unless the parent (or the child who has reached 
the age of majority) gives consent for such a disclosure. Therefore, we 
believe it is important to include the requirement for consent in Sec.  
300.321(b)(3).
    Changes: None.
    Comment: Some commenters recommended removing the phrase, ``to the 
extent appropriate'' in Sec.  300.321(b)(3) and requiring public 
agencies to invite a representative of any participating agency that is 
likely to be responsible for providing or paying for transition 
services to the IEP Team meeting.
    Discussion: We disagree with the recommended change because the 
decision as to whether to invite a particular agency to participate in 
a child's IEP Team meeting is a decision that should be left to the 
public agency and the parent (or the child with a disability who has 
reached the age of majority).
    Changes: None.
    Comment: Numerous commenters recommended retaining current Sec.  
300.344(b)(3)(ii), which requires the public agency to take steps to 
ensure the participation of invited agencies in the planning of any 
transition services when the agencies do not send a representative to 
the IEP Team meeting. These commenters stated that the participation of 
other agencies is vital to ensuring that the child receives the 
necessary services. One commenter requested that the regulations 
clarify that, aside from inviting other agencies to attend a child's 
IEP Team meeting, public agencies have no obligation to obtain the 
participation of agencies likely to provide transition services.
    Discussion: The Act has never given public agencies the authority 
to compel other agencies to participate in the planning of transition 
services for a child with a disability, including when the requirements 
in Sec.  300.344(b)(3)(ii) were in effect. Without the authority to 
compel other agencies to participate in the planning of transition 
services, public agencies have not been able to meet the requirement in 
current Sec.  300.344(b)(3)(ii) to ``ensure'' the participation of 
other agencies in transition planning. Therefore, while we believe that 
public agencies should take steps to obtain the participation of other 
agencies in the planning of transition services for a child, we believe 
it is unhelpful to retain current Sec.  300.344(b)(3)(ii).
    Changes: None.
    Comment: A few commenters recommended that the regulations require 
the public agency to put parents in touch with agencies providing 
transition services.
    Discussion: We do not believe it is necessary to regulate to 
require public agencies to put parents in touch with agencies providing 
transition services. As a matter of practice, public agencies regularly 
provide information to children and parents about transition services 
during the course of planning and developing transition goals and 
determining the services that are necessary to meet the child's 
transition goals.
    Changes: None.
    Comment: One commenter asked whether a parent could exclude an 
individual from the IEP Team.
    Discussion: A parent can refuse to provide consent only for the 
public

[[Page 46673]]

agency to invite other agencies that are likely to be responsible for 
providing or paying for transition services. A parent may not exclude 
any of the required members of the IEP Team.
    Changes: None.
IEP Team Attendance (Sec.  300.321(e))
    Comment: We received many comments from individuals expressing 
concern about allowing IEP Team members to be excused from attending an 
IEP Team meeting. A few commenters recommended that the regulations 
require all IEP Team members to attend all IEP Team meetings without 
exception. One commenter stated that excusing members from attending 
IEP Team meetings interrupts the flow of the meeting and takes away 
time from discussing the child's needs. Another commenter expressed 
concern that the integrity of the IEP Team meeting process depends on a 
discussion to determine the services that are necessary to meet the 
child's unique needs, and that the richness of this discussion may be 
diminished if IEP Team members are allowed to be excused too frequently 
and the IEP Team must rely on written input.
    Several commenters recommended that the regulations acknowledge 
that, in most circumstances, interactive discussion in IEP Team 
meetings is preferable to written input. Many commenters requested that 
the multidisciplinary scope of the IEP Team meeting be maintained. One 
commenter stated that written input from an excused IEP Team member is 
not sufficient and will be burdensome for both the writer and the 
readers.
    Discussion: Section 614(d)(1)(C) of the Act allows a parent of a 
child with a disability and the LEA to agree that the attendance of an 
IEP Team member at an IEP Team meeting, in whole or in part, is not 
necessary under certain conditions. Allowing IEP Team members to be 
excused from attending an IEP Team meeting is intended to provide 
additional flexibility to parents in scheduling IEP Team meetings and 
to avoid delays in holding an IEP Team meeting when an IEP Team member 
cannot attend due to a scheduling conflict.
    Changes: None.
    Comment: Many commenters stated that the excusal provisions in 
Sec.  300.321 should be optional for States and that States should be 
allowed to require that all IEP Team members attend each IEP Team 
meeting. Several commenters recommended allowing States to determine 
the circumstances or conditions under which attendance at the IEP Team 
meeting is not required. A few commenters recommended clarifying 
whether a State must have policies and procedures to excuse IEP Team 
members.
    Discussion: Under section 614(d)(1)(C) of the Act, a State must 
allow a parent and an LEA to agree to excuse a member of the IEP Team. 
Section 300.321(e) reflects this requirement and we do not have the 
authority to make this optional for States. We also do not have the 
authority to allow a State to restrict, or otherwise determine, when an 
IEP Team member can be excused from attending a meeting, or to prohibit 
the excusal of an IEP Team member when the LEA and parent agree to the 
excusal. Whether a State must have policies and procedures to excuse 
IEP Team members from attending an IEP Team meeting will depend on 
whether such policies and procedures are required by a State to 
implement this statutory requirement. However, every State must allow a 
parent and an LEA to agree to excuse an IEP Team member from attending 
an IEP Team meeting.
    Changes: None.
    Comment: Several commenters recommended that the regulations 
clarify whether the excusal agreement must meet the standard for 
informed consent. Some commenters stated that Congress intended excusal 
agreements to mean informed written consent. Other commenters stated 
that parents, not the public agency, can provide consent and therefore, 
only parents should be allowed to provide consent for excusing IEP Team 
members from IEP Team meetings. A few commenters recommended 
simplifying Sec.  300.321(e) by eliminating the different procedures 
for different types of excusals.
    Discussion: Whether a parent must provide consent to excuse a 
member of the IEP Team from attending an IEP Team meeting depends on 
whether the member's area of the curriculum or related services is 
being modified or discussed at the IEP Team meeting. We cannot 
eliminate the different procedures for different types of excusals 
because section 614(d)(1)(C) of the Act clearly differentiates between 
circumstances in which parental consent is required and when an 
agreement is required to excuse an IEP member from attending an IEP 
Team meeting.
    If the member's area is not being modified or discussed, Sec.  
300.321(e)(1), consistent with section 614(d)(1)(C) of the Act, 
provides that the member may be excused from the meeting if the parent 
and LEA agree in writing that the member's attendance is not necessary. 
An agreement is not the same as consent, but instead refers to an 
understanding between the parent and the LEA. Section 614(d)(1)(C) of 
the Act specifically requires that the agreement between a parent and 
an LEA to excuse a member's attendance at an IEP Team meeting must be 
in writing. If, however, the member's area is being modified or 
discussed, Sec.  300.321(e)(2), consistent with section 
614(d)(1)(C)(ii) of the Act, requires the LEA and the parent to provide 
written informed consent.
    Changes: None.
    Comment: One commenter asked whether parents must be provided any 
information when asked to excuse IEP Team members. A few commenters 
recommended that the request for an excusal include the reason for the 
request to excuse a member of the IEP Team, that it be written in the 
chosen language of the parent, and accompanied by written evaluations 
and recommendations of the excused IEP Team member.
    A few commenters recommended that no IEP Team member should be 
excused from attending an IEP Team meeting until the parent is informed 
about the purpose of the meeting for which the public agency proposes 
to excuse the IEP Team member; the IEP Team member's name and position; 
the reason(s) the public agency wants to excuse the IEP Team member; 
the parent's right to have the IEP Team member present; and the 
parent's right to discuss with the IEP Team member any issues in 
advance of the meeting so the parent is adequately informed. The 
commenters stated that this notice should be included in any statement 
of parent's rights that is distributed.
    Numerous commenters recommended that the regulations include 
specific language to clarify that, before agreeing to excuse an IEP 
Team member, serious consideration must be given to determining if 
written input will be sufficient to thoroughly examine what services 
are needed and whether changes to the current IEP are necessary. A few 
commenters recommended that parents be informed of the roles and 
responsibilities of the excused member prior to giving consent for the 
excusal. Some commenters stated that parents must understand that they 
have the right to disagree and not excuse a member of the IEP Team who 
the parents believe may be essential to developing or revising an IEP. 
One commenter recommended that the written agreement be required to 
include information that the parent was informed of the parent's right 
to have all IEP Team members present.

[[Page 46674]]

    One commenter recommended permitting States to establish additional 
procedural safeguards that guarantee that parents who consent to excuse 
an IEP member from a meeting do so freely and are aware of the 
implications of their decisions. Some commenters expressed concern that 
a parent could be pressured to agree to excuse an IEP Team member for 
what, in reality, are economic or staffing reasons. One commenter 
stated that parents should have the right to consent to excusal only 
after conferring with the individual to be excused. Some commenters 
recommended that parents be informed that they have a legal right to 
require an IEP Team member to participate in the meeting.
    A few commenters expressed concern that the permission to excuse 
IEP Team members from attending IEP Team meetings will be abused, 
particularly with language-minority parents who are often misinformed 
or misled by school districts. Some commenters stated that parents do 
not understand the roles of the various members and could easily be 
pressured into excusing vital members of the IEP Team.
    A few commenters recommended that the regulations include 
requirements to guard against excessive excusals. Some commenters 
stated that an LEA that routinely prevents general or special education 
teachers, or related services providers, from attending IEP Team 
meetings using the excusal provisions should be subject to monitoring 
and review.
    Discussion: When an IEP Team member's area is not being modified or 
discussed, Sec.  300.321(e)(1), consistent with section 614(d)(1)(C) of 
the Act, provides that the member may be excused from the meeting if 
the parent and LEA agree in writing that the member's attendance is not 
necessary. We believe it is important to give public agencies and 
parents wide latitude about the content of the agreement and, 
therefore, decline to regulate on the specific information that an LEA 
must provide in a written agreement to excuse an IEP Team member from 
attending the IEP Team meeting when the member's area of the curriculum 
or related services is not being modified or discussed.
    When an IEP Team member's area is being modified or discussed, 
Sec.  300.321(e)(2), consistent with section 614(d)(1)(C)(ii) of the 
Act, requires the LEA and the parent to provide written informed 
consent. Consistent with Sec.  300.9, consent means that the parent has 
been fully informed in his or her native language, or other mode of 
communication, and understands that the granting of consent is 
voluntary and may be revoked at any time. The LEA must, therefore, 
provide the parent with appropriate and sufficient information to 
ensure that the parent fully understands that the parent is consenting 
to excuse an IEP Team member from attending an IEP Team meeting in 
which the member's area of the curriculum or related services is being 
changed or discussed and that if the parent does not consent the IEP 
Team meeting must be held with that IEP Team member in attendance.
    We believe that these requirements are sufficient to ensure that 
the parent is fully informed before providing consent to excuse an IEP 
Team member from attending an IEP Team meeting in which the member's 
area of the curriculum will be modified or discussed, and do not 
believe that it is necessary to include in the regulations the more 
specific information that commenters recommended be provided to 
parents.
    We also do not believe it is necessary to add a regulation 
permitting States to establish additional procedural safeguards for 
parents who consent to excuse an IEP Team member, as recommended by one 
commenter, because we believe the safeguard of requiring consent will 
be sufficient to prevent parents from feeling pressured to excuse an 
IEP Team member. Furthermore, parents who want to confer with an 
excused team member may ask to do so before agreeing or consenting to 
excusing the member from attending the IEP Team meeting, but it would 
be inappropriate to add a regulation that limited parent rights by 
requiring a conference before the parent could agree or consent to the 
excusal of an IEP Team member.
    With regard to the recommendation that the notice state that the 
parent has a legal right to require an IEP Team member to participate 
in an IEP Team meeting, it is important to emphasize that it is the 
public agency that determines the specific personnel to fill the roles 
for the public agency's required participants at the IEP Team meeting. 
A parent does not have a legal right to require other members of the 
IEP Team to attend an IEP Team meeting. Therefore, if a parent invites 
other public agency personnel who are not designated by the LEA to be 
on the IEP Team, they are not required to attend.
    An LEA may not routinely or unilaterally excuse IEP Team members 
from attending IEP Team meetings as parent agreement or consent is 
required in each instance. We encourage LEAs to carefully consider, 
based on the individual needs of the child and the issues that need to 
be addressed at the IEP Team meeting whether it makes sense to offer to 
hold the IEP Team meeting without a particular IEP Team member in 
attendance or whether it would be better to reschedule the meeting so 
that person could attend and participate in the discussion. However, we 
do not believe that additional regulations on this subject are 
warranted.
    An LEA that routinely excuses IEP Team members from attending IEP 
Team meetings would not be in compliance with the requirements of the 
Act, and, therefore, would be subject to the State's monitoring and 
enforcement provisions.
    Changes: None.
    Comment: A few commenters requested clarification on whether 
excusals from IEP Team meetings apply to only regular education 
teachers, special education teachers, and related services providers, 
or to all individuals whose curriculum areas may be discussed at an IEP 
Team meeting. One commenter recommended clarifying that all IEP Team 
members, as defined in Sec.  300.321, must be represented at the IEP 
Team meeting unless excused by the parents and the LEA.
    One commenter stated that Sec.  300.321(e) can be read to require 
that each individual invited to the IEP Team meeting by the parent or 
the public agency (who has knowledge or special expertise) must attend 
the meeting unless the parent and the agency agree in writing that they 
need not attend. The commenter recommended that the regulations clarify 
that the attendance of the other individuals invited to attend the IEP 
Team meeting by the parent and public agency is discretionary and that 
no waiver is needed to hold the IEP Team meeting without them. The 
commenter recommended revising Sec.  300.321(e)(1) to refer to 
``mandatory'' members of the IEP Team. Another commenter expressed 
concern that it is not possible to pre-determine the areas of the 
curriculum that may be addressed at an IEP Team meeting, and 
recommended that excusals be permitted only for the IEP Team members 
identified by the public agency in Sec.  300.321(a).
    One commenter recommended that the regulations allow teachers with 
classroom responsibilities to attend an IEP Team meeting for 15 to 20 
minutes and leave the meeting when necessary. Some commenters requested 
clarification regarding situations in which there is more than one 
regular education teacher at an IEP Team meeting and whether one or 
both

[[Page 46675]]

teachers must have a written excusal to leave before the end of an IEP 
Team meeting.
    One commenter stated that it is unclear whether consent must be 
obtained if a speech pathologist or occupational therapist cannot 
attend a meeting because speech pathologists and occupational 
therapists are not required members of an IEP Team.
    Discussion: We believe that the excusals from IEP Team meetings 
apply to the members of the IEP Team in paragraphs (a)(2) through (5) 
in Sec.  300.321, that is, to the regular education teacher of the 
child (if the child is, or may be participating in the regular 
education environment); not less than one special education teacher of 
the child (or where appropriate, not less than one special education 
provider of the child); a representative of the public agency who meets 
the requirements in Sec.  300.321(a)(4); and an individual who can 
interpret the instructional implications of evaluation results. We do 
not believe it is necessary to require consent or a written agreement 
between the parent and the public agency to excuse individuals who are 
invited to attend IEP Team meetings at the discretion of the parent or 
the public agency because such individuals are not required members of 
an IEP Team. We will add new language to Sec.  300.321(e) to clarify 
the IEP Team members for whom the requirements regarding excusals 
apply.
    With regard to situations in which there is more than one regular 
education teacher, the IEP Team need not include more than one regular 
education teacher. The regular education teacher who serves as a member 
of a child's IEP Team should be a teacher who is, or may be, 
responsible for implementing a portion of the IEP so that the teacher 
can participate in discussions about how best to instruct the child. If 
the child has more than one regular education teacher responsible for 
carrying out a portion of the IEP, the LEA may designate which teacher 
or teachers will serve as the IEP member(s), taking into account the 
best interest of the child. An LEA could also agree that each teacher 
attend only the part of the meeting that involves modification to, or 
discussion of, the teacher's area of the curriculum.
    Section 300.321(a)(3) requires the IEP Team to include not less 
than one special education teacher or where appropriate, not less than 
one special education provider of the child. As explained earlier, a 
special education provider is a person who is, or will be, responsible 
for implementing the IEP. Therefore, if a speech pathologist, 
occupational therapist, or other special education provider, other than 
the child's special education teacher is on the IEP Team, written 
consent from the parent would be required for the speech pathologist, 
occupational therapist, or other special education provider to be 
excused from attending an IEP Team meeting, in whole or in part, when 
the IEP Team meeting involves a modification to, or discussion of, the 
IEP Team member's related service or area of the curriculum.
    Changes: We have added language in Sec.  300.321(e)(1) to refer to 
paragraphs (a)(2) through (a)(5), and a reference to paragraph (e)(1) 
in Sec.  300.321(e)(2) to clarify the IEP Team members for whom a 
parent and public agency must consent or agree in writing to excuse 
from an IEP Team meeting.
    Comment: A few commenters stated that excusal of the regular 
education teacher is already built into the requirements and questioned 
the circumstances under which a State might exceed these requirements.
    Discussion: Section 300.321(a)(2) does not require a regular 
education teacher to be part of the IEP Team for a child who is not 
participating in the regular education environment or is not 
anticipated to participate in the regular education environment. The 
excusals from IEP Team meetings in Sec.  300.321(e) apply to a regular 
education teacher who is part of the IEP Team by virtue of the fact 
that the child with a disability is participating, or may be 
participating, in the regular education environment.
    Changes: None.
    Comment: Some commmenters recommended setting a limit as to how 
often teachers can be excused from IEP Team meetings. A few commenters 
recommended prohibiting the excusal of IEP Team members for initial IEP 
Team meetings. One commenter recommended allowing an IEP Team meeting 
to occur only if there is one person who cannot attend the meeting.
    Many commenters opposed the excusal of teachers, therapists, speech 
providers, and other experts who work with a child on an ongoing basis. 
A few commenters stated that regular education teachers should not be 
excused from IEP Team meetings because they have the content expertise 
that is critical to the IEP process. One commenter stated that the 
excusal of an LEA representative should not be allowed.
    A few commenters requested guidance to make it more difficult for 
IEP Team members to be excused from IEP Team meetings. Some commenters 
stated that excusing IEP Team members should only be done in limited 
circumstances and only when absolutely necessary.
    Some commenters recommended that the regulations provide an 
opportunity for the parents to challenge a public agency's attempt to 
exclude staff members who believe their attendance is necessary at an 
IEP Team meeting. A few commenters suggested that the regulations 
prohibit excusal of personnel based on the cost of providing coverage 
in the classroom for a teacher to attend the IEP Team meeting, 
disagreements over appropriate services among staff, or scheduling 
problems. One commenter recommended that the regulations clearly state 
that teachers cannot be barred from attending an IEP Team meeting.
    Discussion: We decline to make the changes requested by the 
commenters because it would be inconsistent with section 614(d)(1)(C) 
of the Act to set a limit on the number of times an IEP Team member 
could be excused; prohibit excusals for initial IEP Team meetings; 
restrict the number of excusals per meeting; prohibit certain IEP Team 
members from being excused from attending an IEP Team meeting; or 
otherwise restrict or limit parents and LEAs from agreeing to excuse 
IEP Team members from attending an IEP Team meeting. Likewise, it would 
be inconsistent with section 614(d)(1)(C) of the Act for an LEA to 
unilaterally excuse an IEP Team member from attending an IEP Team 
meeting.
    The public agency determines the specific personnel to fill the 
roles for the public agency's required participants at the IEP Team 
meeting. Whether other teachers or service providers who are not the 
public agency's required participants at the IEP Team meeting can 
attend an IEP Team meeting is best addressed by State and local 
officials.
    Changes: None.
    Comment: A few commenters asked whether the regular teacher, the 
special education teacher, principal, or the LEA makes the decision 
with the parent to excuse an IEP member. Some commenters recommended 
that the regulations require the excused IEP Team member to agree to be 
excused from an IEP Team meeting. Other commenters stated that a 
teacher should be included as one of the parties that decide whether a 
teacher should be excused from attending the IEP Team meeting.
    Numerous commenters recommended that, before an IEP Team member is 
excused from attending an IEP Team meeting, sufficient notice must be 
given so that other IEP Team members can consider the request. Some 
commenters requested that the regulations clarify

[[Page 46676]]

whether the entire IEP Team must meet and then agree on whether a 
member's attendance at the IEP Team meeting is needed.
    Discussion: It would not be appropriate to make the changes