The Part B regulations have traditionally included "notes"
They followed certain sections of the regulations, to clarify a specific provision or provide guidance on how to implement the requirement. One hundred and twenty-six (126) notes were included in the NPRM, including 50 new notes that were added relating to the IDEA Amendments of 1997 and other new provisions included in the NPRM.
Extensive Public Comments on Notes.
The Department received an unexpectedly large number of public comments about the notes. The commenters generally expressed concern about the significant number of notes in the NPRM, and stated that the substance of many of the notes went well beyond clarification and guidance, into regulating by notes! Commenters stated that:
- any note that is considered to be a requirement should be incorporated into the text of the regulations;
- all notes should be deleted or otherwise moved to a technical assistance document; and
- if any notes are retained, they should clearly be used only for providing guidance, examples, or clarifying information.
All NPRM Notes Removed from Final Regulations.
In light of the comments received, all notes included in the NPRM have been removed from the final regulations, and have been addressed as follows2 :
- THE SUBSTANCE OF ANY NOTE THAT SHOULD BE A REQUIREMENT (i.e., 53 of the 126 notes) has been added to the text of the regulations;
- INFORMATION IN NOTES CONSIDERED DIRECTLY RELEVANT TO IEPs AND OTHER SELECTED IMPLEMENTATION ISSUES has been included in the "Notice of Interpretation" on IEPs in Appendix A (formerly Appendix C);
- THE SUBSTANCE OF ANY NOTE THAT PROVIDES USEFUL GUIDANCE or clarifying information has been incorporated into the discussion of the applicable comments in the "Analysis of Comments..." (Attachment 1 to the final regulations).
- ALL OTHER NOTES HAVE BEEN DELETED.
* On October 22, 1997, a Notice of Proposed Rulemaking (NPRM) was published in the Federal Register to amend the regulations under Part B of the Individuals with Disabilities Education Act (IDEA). The purposes of the NPRM were to implement changes made by the IDEA Amendments of 1997, and make other changes that facilitate the implementation of Part B. The changes made since the NPRM are based mainly on public comments received.
2 Table Showing Disposition of Notes. Attachment 3 to the final regulations includes a table on the "Disposition of NPRM Notes in final...Regulations."