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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: 
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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
[[Page 46540]]
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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
[[Page 46541]]
``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
[[Page 46542]]
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
[[Page 46543]]
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]]
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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 |
