• Subpart C--Services
• Subpart D--Children in Private Schools

Subpart C--Services
 Sec. 300.300  Provision of FAPE.
                    Free Appropriate Public Education

    (a) General. (1) Subject to paragraphs (b) and (c) of this section
and Sec. 300.311, each State receiving assistance under this part shall
ensure that FAPE is available to all children with disabilities, aged 3
through 21, residing in the State, including children with disabilities
who have been suspended or expelled from school.
    (2) As a part of its obligation under paragraph (a)(1) of this
section, each State must ensure that the requirements of Sec. 300.125
(to identify, locate, and evaluate all children with disabilities) are
implemented by public agencies throughout the State.
    (3)(i) The services provided to the child under this part address
all of the child's identified special education and related services
needs described in paragraph (a) of this section.
    (ii) The services and placement needed by each child with a
disability to receive FAPE must be based on the child's unique needs and
not on the child's disability.
    (b) Exception for age ranges 3-5 and 18-21. This paragraph provides
the rules for applying the requirements in paragraph (a) of this section
to children with disabilities aged 3, 4, 5, 18, 19, 20, and 21 within
the State:
    (1) If State law or a court order requires the State to provide
education for children with disabilities in any disability category in
any of these age groups, the State must make FAPE available to all
children with disabilities of the same age who have that disability.
    (2) If a public agency provides education to nondisabled children in
any of these age groups, it must make FAPE available to at least a
proportionate number of children with disabilities of the same age.
    (3) If a public agency provides education to 50 percent or more of
its children with disabilities in any disability category in any of
these age groups, it must make FAPE available to all its children with
disabilities of the same age who have that disability. This provision
does not apply to children aged 3 through 5 for any fiscal year for
which the State receives a grant under section 619(a)(1) of the Act.
    (4) If a public agency provides education to a child with a
disability in any of these age groups, it must make FAPE available to
that child and provide that child and his or her parents all of the
rights under Part B of the Act and this part.
    (5) A State is not required to make FAPE available to a child with a
disability in one of these age groups if--
    (i) State law expressly prohibits, or does not authorize, the
expenditure of public funds to provide education to nondisabled children
in that age group; or
    (ii) The requirement is inconsistent with a court order that governs
the provision of free public education to children with disabilities in
that State.
    (c) Children aged 3 through 21 on Indian reservations. With the
exception of children identified in Sec. 300.715(b) and (c), the SEA
shall ensure that all of the requirements of Part B of the Act are
implemented for all children with disabilities aged 3 through 21 on
reservations.

(Authority: 20 U.S.C. 1412(a)(1), 1411(i)(1)(C), S. Rep. No. 94--168, p.
19 (1975))

Sec. 300.301  FAPE--methods and payments.

    (a) Each State may use whatever State, local, Federal, and private

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sources of support are available in the State to meet the requirements
of this part. For example, if it is necessary to place a child with a
disability in a residential facility, a State could use joint agreements
between the agencies involved for sharing the cost of that placement.
    (b) Nothing in this part relieves an insurer or similar third party
from an otherwise valid obligation to provide or to pay for services
provided to a child with a disability.
    (c) Consistent with Secs. 300.342(b)(2) and 300.343(b), the State
must ensure that there is no delay in implementing a child's IEP,
including any case in which the payment source for providing or paying
for special education and related services to the child is being
determined.

(Authority: 20 U.S.C. 1401(8), 1412(a)(1))
Sec. 300.302  Residential placement.

    If placement in a public or private residential program is necessary
to provide special education and related services to a child with a
disability, the program, including non-medical care and room and board,
must be at no cost to the parents of the child.

(Authority: 20 U.S.C. 1412(a)(1), 1412(a)(10)(B))
Sec. 300.303  Proper functioning of hearing aids.

    Each public agency shall ensure that the hearing aids worn in school
by children with hearing impairments, including deafness, are
functioning properly.

(Authority: 20 U.S.C. 1412(a)(1))


Sec. 300.304  Full educational opportunity goal.

    Each SEA shall ensure that each public agency establishes and
implements a goal of providing full educational opportunity to all
children with disabilities in the area served by the public agency.

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

Sec. 300.305  Program options.

    Each public agency shall take steps to ensure that its children with
disabilities have available to them the variety of educational programs
and services available to nondisabled children in the area served by the
agency, including art, music, industrial arts, consumer and homemaking
education, and vocational education.

(Authority: 20 U.S.C. 1412(a)(2), 1413(a)(1))

Sec. 300.306  Nonacademic services.

    (a) Each public agency shall take steps 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.
    (b) Nonacademic and extracurricular services and activities may
include counseling services, athletics, transportation, health services,
recreational activities, special interest groups or clubs sponsored by
the public agency, referrals to agencies that provide assistance to
individuals with disabilities, and employment of students, including
both employment by the public agency and assistance in making outside
employment available.

(Authority: 20 U.S.C. 1412(a)(1))


Sec. 300.307  Physical education.

    (a) General. Physical education services, specially designed if
necessary, must be made available to every child with a disability
receiving FAPE.
    (b) Regular physical education. Each child with a disability must be
afforded the opportunity to participate in the regular physical
education program available to nondisabled children unless--
    (1) The child is enrolled full time in a separate facility; or
    (2) The child needs specially designed physical education, as
prescribed in the child's IEP.
    (c) Special physical education. If specially designed physical
education is prescribed in a child's IEP, the public agency responsible
for the education of that child shall provide the services directly or
make arrangements for those services to be provided through other public
or private programs.
    (d) Education in separate facilities. The public agency responsible
for the education of a child with a disability who is enrolled in a
separate facility shall ensure that the child receives appropriate
physical education services in

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compliance with paragraphs (a) and (c) of this section.

(Authority: 20 U.S.C. 1412(a)(25), 1412(a)(5)(A))



Sec. 300.308  Assistive technology.

    (a) Each public agency shall ensure that assistive technology
devices or assistive technology services, or both, as those terms are
defined in Secs. 300.5-300.6, are made available to a child with a
disability if required as a part of the child's--
    (1) Special education under Sec. 300.26;
    (2) Related services under Sec. 300.24; or
    (3) Supplementary aids and services under Secs. 300.28 and
300.550(b)(2).
    (b) On a case-by-case basis, the use of school-purchased assistive
technology devices in a child's home or in other settings is required if
the child's IEP team determines that the child needs access to those
devices in order to receive FAPE.

(Authority: 20 U.S.C. 1412(a)(12)(B)(i))



Sec. 300.309  Extended school year services.

    (a) General. (1) Each public agency shall ensure that extended
school year services are available as necessary to provide FAPE,
consistent with paragraph (a)(2) of this section.
    (2) Extended school year services must be provided only if a child's
IEP team determines, on an individual basis, in accordance with
Secs. 300.340-300.350, that the services are necessary for the provision
of FAPE to the child.
    (3) In implementing the requirements of this section, a public
agency may not--
    (i) Limit extended school year services to particular categories of
disability; or
    (ii) Unilaterally limit the type, amount, or duration of those
services.
    (b) Definition. As used in this section, the term extended school
year services means special education and related services that--
    (1) Are provided to a child with a disability--
    (i) Beyond the normal school year of the public agency;
    (ii) In accordance with the child's IEP; and
    (iii) At no cost to the parents of the child; and
    (2) Meet the standards of the SEA.

(Authority: 20 U.S.C. 1412(a)(1))



Sec. 300.311  FAPE requirements for students with disabilities
in adult prisons.

    (a) Exception to FAPE for certain students. Except as provided in
Sec. 300.122(a)(2)(ii), the obligation to make FAPE available to all
children with disabilities does not apply with respect to students aged
18 through 21 to the extent that State law does not require that special
education and related services under Part B of the Act be provided to
students with disabilities who, in the last educational placement prior
to their incarceration in an adult correctional facility--
    (1) Were not actually identified as being a child with a disability
under Sec. 300.7; and
    (2) Did not have an IEP under Part B of the Act.
    (b) Requirements that do not apply. The following requirements do
not apply to students with disabilities who are convicted as adults
under State law and incarcerated in adult prisons:
    (1) The requirements contained in Sec. 300.138 and
Sec. 300.347(a)(5)(i) (relating to participation of children with
disabilities in general assessments).
    (2) The requirements in Sec. 300.347(b) (relating to transition
planning and transition services), with respect to the students whose
eligibility under Part B of the Act will end, because of their age,
before they will be eligible to be released from prison based on
consideration of their sentence and eligibility for early release.
    (c) Modifications of IEP or placement. (1) Subject to paragraph
(c)(2) of this section, the IEP team of a student with a disability, who
is convicted as an adult under State law and incarcerated in an adult
prison, may modify the student's IEP or placement if the State has
demonstrated a bona fide security or compelling penological interest
that cannot otherwise be accommodated.
    (2) The requirements of Secs. 300.340(a) and 300.347(a) relating to
IEPs, and 300.550(b) relating to LRE, do not apply

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with respect to the modifications described in paragraph (c)(1) of this
section.

(Authority: 20 U.S.C. 1412(a)(1), 1414(d)(6))



Sec. 300.312  Children with disabilities in public charter schools.

    (a) Children with disabilities who attend public charter schools and
their parents retain all rights under this part.
    (b) If the public charter school is an LEA, consistent with
Sec. 300.17, that receives funding under Secs. 300.711-300.714, that
charter school is responsible for ensuring that the requirements of this
part are met, unless State law assigns that responsibility to some other
entity.
    (c) If the public charter school is a school of an LEA that receives
funding under Secs. 300.711-300.714 and includes other public schools--
    (1) The LEA is responsible for ensuring that the requirements of
this part are met, unless State law assigns that responsibility to some
other entity; and
    (2) The LEA must meet the requirements of Sec. 300.241.
    (d)(1) If the public charter school is not an LEA receiving funding
under Secs. 300.711-300.714, or a school that is part of an LEA
receiving funding under Secs. 300.711-300.714, the SEA is responsible
for ensuring that the requirements of this part are met.
    (2) Paragraph (d)(1) of this section does not preclude a State from
assigning initial responsibility for ensuring the requirements of this
part are met to another entity; however, the SEA must maintain the
ultimate responsibility for ensuring compliance with this part,
consistent with Sec. 300.600.

(Authority: 20 U.S.C. 1413(a)(5))



Sec. 300.313  Children experiencing developmental delays.

    (a) Use of term developmental delay. (1) A State that adopts the
term developmental delay under Sec. 300.7(b) determines whether it
applies to children aged 3 through 9, or to a subset of that age range
(e.g., ages 3 through 5).
    (2) A State may not require an LEA to adopt and use the term
developmental delay for any children within its jurisdiction.
    (3) If an LEA uses the term developmental delay for children
described in Sec. 300.7(b), the LEA must conform to both the State's
definition of that term and to the age range that has been adopted by
the State.
    (4) If a State does not adopt the term developmental delay, an LEA
may not independently use that term as a basis for establishing a
child's eligibility under this part.
    (b) Use of individual disability categories. (1) Any State or LEA
that elects to use the term developmental delay for children aged 3
through 9 may also use one or more of the disability categories
described in Sec. 300.7 for any child within that age range if it is
determined, through the evaluation conducted under Secs. 300.530-
300.536, that the child has an impairment described in Sec. 300.7, and
because of that impairment needs special education and related services.
    (2) The State or LEA shall ensure that all of the child's special
education and related services needs that have been identified through
the evaluation described in paragraph (b)(1) of this section are
appropriately addressed.
    (c) Common definition of developmental delay. A State may adopt a
common definition of developmental delay for use in programs under Parts
B and C of the Act.

(Authority: 20 U.S.C. 1401(3)(A) and (B))

                      Evaluations and Reevaluations



Sec. 300.320  Initial evaluations.

    (a) Each public agency shall ensure that a full and individual
evaluation is conducted for each child being considered for special
education and related services under Part B of the Act--
    (1) To determine if the child is a ``child with a disability'' under
Sec. 300.7; and
    (2) To determine the educational needs of the child.
    (b) In implementing the requirements of paragraph (a) of this
section, the public agency shall ensure that--
    (1) The evaluation is conducted in accordance with the procedures
described in Secs. 300.530-300.535; and

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    (2) The results of the evaluation are used by the child's IEP team
in meeting the requirements of Secs. 300.340-300.350.

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




Secs. 300.322-300.324  [Reserved]

                    Individualized Education Programs



Sec. 300.340  Definitions related to IEPs.

    (a) Individualized education program. As used in this part, the term
individualized education program or IEP means a written statement for a
child with a disability that is developed, reviewed, and revised in a
meeting in accordance with Secs. 300.341-300.350.
    (b) Participating agency. As used in Sec. 300.348, participating
agency means a State or local agency, other than the public agency
responsible for a student's education, that is financially and legally
responsible for providing transition services to the student.

(Authority: 20 U.S.C. 1401(11), 1412(a)(10)(B))



Sec. 300.341  Responsibility of SEA and other public agencies for IEPs.

    (a) The SEA shall ensure that each public agency--
    (1) Except as provided in Secs. 300.450-300.462, develops and
implements an IEP for each child with a disability served by that
agency; and
    (2) Ensures that an IEP is developed and implemented for each
eligible child placed in or referred to a private school or facility by
the public agency.
    (b) Paragraph (a) of this section applies to--
    (1) The SEA, if it is involved in providing direct services to
children with disabilities, in accordance with Sec. 300.370(a) and
(b)(1); and
    (2) Except as provided in Sec. 300.600(d), the other public agencies
described in Sec. 300.2, including LEAs and other State agencies that
provide special education and related services either directly, by
contract, or through other arrangements.

(Authority: 20 U.S.C. 1412(a)(4), (a)(10)(B))



Sec. 300.342  When IEPs must be in effect.

    (a) General. At the beginning of each school year, each public
agency shall have an IEP in effect for each child with a disability
within its jurisdiction.
    (b) Implementation of IEPs. Each public agency shall ensure that--
    (1) An IEP--
    (i) Is in effect before special education and related services are
provided to an eligible child under this part; and
    (ii) Is implemented as soon as possible following the meetings
described under Sec. 300.343;
    (2) The child's IEP is accessible to each regular education teacher,
special education teacher, related service provider, and other service
provider who is responsible for its implementation; and
    (3) Each teacher and provider described in paragraph (b)(2) of this
section is informed of--
    (i) His or her specific responsibilities related to implementing the
child's IEP; and
    (ii) The specific accommodations, modifications, and supports that
must be provided for the child in accordance with the IEP.
    (c) IEP or IFSP for children aged 3 through 5. (1) In the case of a
child with a disability aged 3 through 5 (or, at the discretion of the
SEA a 2-year-old child with a disability who will turn age 3 during the
school year), an IFSP that contains the material described in section
636 of the Act, and that is developed in accordance with Secs. 300.341-
300.346 and Secs. 300.349-300.350, may serve as the IEP of the child if
using that plan as the IEP is--
    (i) Consistent with State policy; and
    (ii) Agreed to by the agency and the child's parents.
    (2) In implementing the requirements of paragraph (c)(1) of this
section, the public agency shall--

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    (i) Provide to the child's parents a detailed explanation of the
differences between an IFSP and an IEP; and
    (ii) If the parents choose an IFSP, obtain written informed consent
from the parents.
    (d) Effective date for new requirements. All IEPs developed,
reviewed, or revised on or after July 1, 1998 must meet the requirements
of Secs. 300.340-300.350.

(Authority: 20 U.S.C. 1414(d)(2)(A) and (B), Pub. L. 105-17, sec.
201(a)(2)(A), (C)



Sec. 300.343  IEP meetings.

    (a) General. Each public agency is responsible for initiating and
conducting meetings for the purpose of developing, reviewing, and
revising the IEP of a child with a disability (or, if consistent with
Sec. 300.342(c), an IFSP).
    (b) Initial IEPs; provision of services. (1) Each public agency
shall ensure that within a reasonable period of time following the
agency's receipt of parent consent to an initial evaluation of a child--
    (i) The child is evaluated; and
    (ii) If determined eligible under this part, special education and
related services are made available to the child in accordance with an
IEP.
    (2) In meeting the requirement in paragraph (b)(1) of this section,
a meeting to develop an IEP for the child must be conducted within 30-
days of a determination that the child needs special education and
related services.
    (c) Review and revision of IEPs. Each public agency shall ensure
that the IEP team--
    (1) Reviews the child's IEP periodically, but not less than
annually, to determine whether the annual goals for the child are being
achieved; and
    (2) Revises the IEP as appropriate to address--
    (i) Any lack of expected progress toward the annual goals described
in Sec. 300.347(a), and in the general curriculum, if appropriate;
    (ii) The results of any reevaluation conducted under Sec. 300.536;
    (iii) Information about the child provided to, or by, the parents,
as described in Sec. 300.533(a)(1);
    (iv) The child's anticipated needs; or
    (v) Other matters.

(Authority: 20 U.S.C. 1413(a)(1), 1414(d)(4)(A)



Sec. 300.344  IEP team.

    (a) General. The public agency shall ensure that the IEP team for
each child with a disability includes--
    (1) The parents of the child;
    (2) At least one regular education teacher of the child (if the
child is, or may be, participating in the regular education
environment);
    (3) At least one special education teacher of the child, or if
appropriate, at least one special education provider of the child;
    (4) A representative of the public agency who--
    (i) Is qualified to provide, or supervise the provision of,
specially designed instruction to meet the unique needs of children with
disabilities;
    (ii) Is knowledgeable about the general curriculum; and
    (iii) Is knowledgeable about the availability of resources of the
public agency;
    (5) An individual who can interpret the instructional implications
of evaluation results, who may be a member of the team described in
paragraphs (a)(2) through (6) of this section;
    (6) At the discretion of the parent or the agency, other individuals
who have knowledge or special expertise regarding the child, including
related services personnel as appropriate; and
    (7) If appropriate, the child.
    (b) Transition services participants. (1) Under paragraph (a)(7) of
this section, the public agency shall invite a student with a disability
of any age to attend his or her IEP meeting if a purpose of the meeting
will be the consideration of--
    (i) The student's transition services needs under
Sec. 300.347(b)(1);
    (ii) The needed transition services for the student under
Sec. 300.347(b)(2); or
    (iii) Both.
    (2) If the student does not attend the IEP meeting, the public
agency shall take other steps to ensure that the student's preferences
and interests are considered.
    (3)(i) In implementing the requirements of Sec. 300.347(b)(2), the
public agency also shall invite a representative of any other agency
that is likely to be responsible for providing or paying for transition
services.

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    (ii) If an agency invited to send a representative to a meeting does
not do so, the public agency shall take other steps to obtain
participation of the other agency in the planning of any transition
services.
    (c) Determination of knowledge and special expertise. The
determination of the knowledge or special expertise of any individual
described in paragraph (a)(6) of this section shall be made by the party
(parents or public agency) who invited the individual to be a member of
the IEP.
    (d) Designating a public agency representative. A public agency may
designate another public agency member of the IEP team to also serve as
the agency representative, if the criteria in paragraph (a)(4) of this
section are satisfied.

(Authority: 20 U.S.C. 1401(30), 1414(d)(1)(A)(7), (B))

Sec. 300.345  Parent participation.

    (a) Public agency responsibility--general. Each public agency shall
take steps to ensure that one or both of the parents of a child with a
disability are present at each IEP meeting or are afforded the
opportunity to participate, including--
    (1) Notifying parents of the meeting early enough to ensure that
they will have an opportunity to attend; and
    (2) Scheduling the meeting at a mutually agreed on time and place.
    (b) Information provided to parents. (1) The notice required under
paragraph (a)(1) of this section must--
    (i) Indicate the purpose, time, and location of the meeting and who
will be in attendance; and
    (ii) Inform the parents of the provisions in Sec. 300.344(a)(6) and
(c) (relating to the participation of other individuals on the IEP team
who have knowledge or special expertise about the child).
    (2) For a student with a disability beginning at age 14, or younger,
if appropriate, the notice must also--
    (i) Indicate that a purpose of the meeting will be the development
of a statement of the transition services needs of the student required
in Sec. 300.347(b)(1); and
    (ii) Indicate that the agency will invite the student.
    (3) For a student with a disability beginning at age 16, or younger,
if appropriate, the notice must--
    (i) Indicate that a purpose of the meeting is the consideration of
needed transition services for the student required in
Sec. 300.347(b)(2);
    (ii) Indicate that the agency will invite the student; and
    (iii) Identify any other agency that will be invited to send a
representative.
    (c) Other methods to ensure parent participation. If neither parent
can attend, the public agency shall use other methods to ensure parent
participation, including individual or conference telephone calls.
    (d) Conducting an IEP meeting without a parent in attendance. A
meeting may be conducted without a parent in attendance if the public
agency is unable to convince the parents that they should attend. In
this case the public agency must have a record of its attempts to
arrange a mutually agreed on time and place, such as--
    (1) Detailed records of telephone calls made or attempted and the
results of those calls;
    (2) Copies of correspondence sent to the parents and any responses
received; and
    (3) Detailed records of visits made to the parent's home or place of
employment and the results of those visits.
    (e) Use of interpreters or other action, as appropriate. The public
agency shall take whatever action is necessary to ensure that the parent
understands the proceedings at the IEP meeting, including arranging for
an interpreter for parents with deafness or whose native language is
other than English.
    (f) Parent copy of child's IEP. The public agency shall give the
parent a copy of the child's IEP at no cost to the parent.

(Authority: 20 U.S.C. 1414(d)(1)(B)(i))

Sec. 300.346  Development, review, and revision of IEP.

    (a) Development of IEP. (1) General. In developing each child's IEP,
the IEP team, shall consider--
    (i) The strengths of the child and the concerns of the parents for
enhancing the education of their child;
    (ii) The results of the initial or most recent evaluation of the
child; and

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    (iii) As appropriate, the results of the child's performance on any
general State or district-wide assessment programs.
    (2) Consideration of special factors. The IEP team also shall--
    (i) In the case of a child whose behavior impedes his or her
learning or that of others, consider, if appropriate, strategies,
including positive behavioral interventions, strategies, and supports to
address that behavior;
    (ii) In the case of a child with limited English proficiency,
consider the language needs of the child as those needs relate to the
child's IEP;
    (iii) In the case of a child who is blind or visually impaired,
provide for instruction in Braille and the use of Braille unless the IEP
team determines, after an evaluation of the child's reading and writing
skills, needs, and appropriate reading and writing media (including an
evaluation of the child's future needs for instruction in Braille or the
use of Braille), that instruction in Braille or the use of Braille is
not appropriate for the child;
    (iv) Consider the communication needs of the child, and in the case
of a child who is deaf or hard of hearing, consider the child's language
and communication needs, opportunities for direct communications with
peers and professional personnel in the child's language and
communication mode, academic level, and full range of needs, including
opportunities for direct instruction in the child's language and
communication mode; and
    (v) Consider whether the child requires assistive technology devices
and services.
    (b) Review and Revision of IEP. In conducting a meeting to review,
and, if appropriate, revise a child's IEP, the IEP team shall consider
the factors described in paragraph (a) of this section.
    (c) Statement in IEP. If, in considering the special factors
described in paragraphs (a)(1) and (2) of this section, the IEP team
determines that a child needs a particular device or service (including
an intervention, accommodation, or other program modification) in order
for the child to receive FAPE, the IEP team must include a statement to
that effect in the child's IEP.
    (d) Requirement with respect to regular education teacher. The
regular education teacher of a child with a disability, as a member of
the IEP team, must, to the extent appropriate, participate in the
development, review, and revision of the child's IEP, including
assisting in the determination of--
    (1) Appropriate positive behavioral interventions and strategies for
the child; and
    (2) Supplementary aids and services, program modifications or
supports for school personnel that will be provided for the child,
consistent with Sec. 300.347(a)(3).
    (e) Construction. Nothing in this section shall be construed to
require the IEP team to include information under one component of a
child's IEP that is already contained under another component of the
child's IEP.

(Authority: 20 U.S.C. 1414(d)(3) and (4)(B) and (e))

Sec. 300.347  Content of IEP.

    (a) General. The IEP for each child with a disability must include--
    (1) A statement of the child's present levels of educational
performance, including--
    (i) How the child's disability affects the child's involvement and
progress in the general curriculum (i.e., the same curriculum as for
nondisabled children); or
    (ii) For preschool children, as appropriate, how the disability
affects the child's participation in appropriate activities;
    (2) A statement of measurable annual goals, including benchmarks or
short-term objectives, related to--
    (i) Meeting the child's needs that result from the child's
disability to enable the child to be involved in and progress in the
general curriculum (i.e., the same curriculum as for nondisabled
children), or for preschool children, as appropriate, to participate in
appropriate activities; and
    (ii) Meeting each of the child's other educational needs that result
from the child's disability;
    (3) A statement of the special education and related services and
supplementary aids and services to be provided to the child, or on
behalf of the child, and a statement of the program

[[Page 49]]

modifications or supports for school personnel that will be provided for
the child--
    (i) To advance appropriately toward attaining the annual goals;
    (ii) To be involved and progress in the general curriculum in
accordance with paragraph (a)(1) of this section and to participate in
extracurricular and other nonacademic activities; and
    (iii) To be educated and participate with other children with
disabilities and nondisabled children in the activities described in
this section;
    (4) An explanation of the extent, if any, to which the child will
not participate with nondisabled children in the regular class and in
the activities described in paragraph (a)(3) of this section;
    (5)(i) A statement of any individual modifications in the
administration of State or district-wide assessments of student
achievement that are needed in order for the child to participate in the
assessment; and
    (ii) If the IEP team determines that the child will not participate
in a particular State or district-wide assessment of student achievement
(or part of an assessment), a statement of--
    (A) Why that assessment is not appropriate for the child; and
    (B) How the child will be assessed;
    (6) The projected date for the beginning of the services and
modifications described in paragraph (a)(3) of this section, and the
anticipated frequency, location, and duration of those services and
modifications; and
    (7) A statement of--
    (i) How the child's progress toward the annual goals described in
paragraph (a)(2) of this section will be measured; and
    (ii) How the child's parents will be regularly informed (through
such means as periodic report cards), at least as often as parents are
informed of their nondisabled children's progress, of--
    (A) Their child's progress toward the annual goals; and
    (B) The extent to which that progress is sufficient to enable the
child to achieve the goals by the end of the year.
    (b) Transition services. The IEP must include--
    (1) For each student with a disability beginning at age 14 (or
younger, if determined appropriate by the IEP team), and updated
annually, a statement of the transition service needs of the student
under the applicable components of the student's IEP that focuses on the
student's courses of study (such as participation in advanced-placement
courses or a vocational education program); and
    (2) For each student beginning at age 16 (or younger, if determined
appropriate by the IEP team), a statement of needed transition services
for the student, including, if appropriate, a statement of the
interagency responsibilities or any needed linkages.
    (c) Transfer of rights. In a State that transfers rights at the age
majority, beginning at least one year before a student reaches the age
of majority under State law, the student's IEP must include a statement
that the student has been informed of his or her rights under Part B of
the Act, if any, that will transfer to the student on reaching the age
of majority, consistent with Sec. 300.517.
    (d) Students with disabilities convicted as adults and incarcerated
in adult prisons. Special rules concerning the content of IEPs for
students with disabilities convicted as adults and incarcerated in adult
prisons are contained in Sec. 300.311(b) and (c).

(Authority: 20 U.S.C. 1414(d)(1)(A) and (d)(6)(A)(ii))

Sec. 300.348  Agency responsibilities for transition services.

    (a) If a participating agency, other than the public agency, fails
to provide the transition services described in the IEP in accordance
with Sec. 300.347(b)(1), the public agency shall reconvene the IEP team
to identify alternative strategies to meet the transition objectives for
the student set out in the IEP.
    (b) Nothing in this part relieves any participating agency,
including a State vocational rehabilitation agency, of the
responsibility to provide or pay for any transition service that the
agency would otherwise provide to students with disabilities who meet
the eligibility criteria of that agency.

(Authority: 20 U.S.C. 1414(d)(5); 1414(d)(1)(A)(vii))

[[Page 50]]

Sec. 300.349  Private school placements by public agencies.

    (a) Developing IEPs. (1) Before a public agency places a child with
a disability in, or refers a child to, a private school or facility, the
agency shall initiate and conduct a meeting to develop an IEP for the
child in accordance with Secs. 300.346 and 300.347.
    (2) The agency shall ensure that a representative of the private
school or facility attends the meeting. If the representative cannot
attend, the agency shall use other methods to ensure participation by
the private school or facility, including individual or conference
telephone calls.
    (b) Reviewing and revising IEPs. (1) After a child with a disability
enters a private school or facility, any meetings to review and revise
the child's IEP may be initiated and conducted by the private school or
facility at the discretion of the public agency.
    (2) If the private school or facility initiates and conducts these
meetings, the public agency shall ensure that the parents and an agency
representative--
    (i) Are involved in any decision about the child's IEP; and
    (ii) Agree to any proposed changes in the IEP before those changes
are implemented.
    (c) Responsibility. Even if a private school or facility implements
a child's IEP, responsibility for compliance with this part remains with
the public agency and the SEA.

(Authority: 20 U.S.C. 1412(a)(10)(B))

Sec. 300.350  IEP--accountability.

    (a) Provision of services. Subject to paragraph (b) of this section,
each public agency must--
    (1) Provide special education and related services to a child with a
disability in accordance with the child's IEP; and
    (2) Make a good faith effort to assist the child to achieve the
goals and objectives or benchmarks listed in the IEP.
    (b) Accountability. Part B of the Act does not require that any
agency, teacher, or other person be held accountable if a child does not
achieve the growth projected in the annual goals and benchmarks or
objectives. However, the Act does not prohibit a State or public agency
from establishing its own accountability systems regarding teacher,
school, or agency performance.
    (c) Construction--parent rights. Nothing in this section limits a
parent's right to ask for revisions of the child's IEP or to invoke due
process procedures if the parent feels that the efforts required in
paragraph (a) of this section are not being made.

(Authority: 20 U.S.C. 1414(d)); Cong. Rec. at H7152 (daily ed., July 21,
1975))

                       Direct Services by the SEA

Sec. 300.360  Use of LEA allocation for direct services.

    (a) General. An SEA shall use the payments that would otherwise have
been available to an LEA or to a State agency to provide special
education and related services directly to children with disabilities
residing in the area served by that local agency, or for whom that State
agency is responsible, if the SEA determines that the LEA or State
agency--
    (1) Has not provided the information needed to establish the
eligibility of the agency under Part B of the Act;
    (2) Is unable to establish and maintain programs of FAPE that meet
the requirements of this part;
    (3) Is unable or unwilling to be consolidated with one or more LEAs
in order to establish and maintain the programs; or
    (4) Has one or more children with disabilities who can best be
served by a regional or State program or service-delivery system
designed to meet the needs of these children.
    (b) SEA responsibility if an LEA does not apply for Part B funds.
(1) If an LEA elects not to apply for its Part B allotment, the SEA must
use those funds to ensure that FAPE is available to all eligible
children residing in the jurisdiction of the LEA.
    (2)(i) If the local allotment is not sufficient to meet the purpose
described in paragraph (b)(1) of this section, the SEA must ensure
compliance with Secs. 300.121(a) and 300.300(a).
    (ii) Consistent with Sec. 300.301(a), the [State; SEA] may use
whatever funding sources are available in the State to

[[Page 51]]

implement paragraph (b)(2)(i) of this section.
    (c) SEA administrative procedures. (1) In meeting the requirements
in paragraph (a) of this section, the SEA may provide special education
and related services directly, by contract, or through other
arrangements.
    (2) The excess cost requirements of Secs. 300.184 and 300.185 do not
apply to the SEA.

(Authority: 20 U.S.C. 1413(h)(1))

�300.361 Nature and location of services.

    The SEA may provide special education and related services
under �300.360(a) in the manner and at the location it considers

appropriate (including regional and State centers). However,
the manner in which the education and services are provided
must be consistent with the requirements of this part
(including the LRE provisions of ��300.550�300.556).

(Authority: 20 U.S.C. 1413(h)(2))

Secs. 300.362-300.369  [Reserved]

Sec. 300.370  Use of SEA allocations.

    (a) Each State shall use any funds it retains under Sec. 300.602 and
does not use for administration under Sec. 300.620 for any of the
following:
    (1) Support and direct services, including technical assistance and
personnel development and training.
    (2) Administrative costs of monitoring and complaint investigation,
but only to the extent that those costs exceed the costs incurred for
those activities during fiscal year 1985.
    (3) To establish and implement the mediation process required by
Sec. 300.506, including providing for the costs of mediators and support
personnel.
    (4) To assist LEAs in meeting personnel shortages.
    (5) To develop a State Improvement Plan under subpart 1 of Part D of
the Act.
    (6) Activities at the State and local levels to meet the performance
goals established by the State under Sec. 300.137 and to support
implementation of the State Improvement Plan under subpart 1 of Part D
of the Act if the State receives funds under that subpart.
    (7) To supplement other amounts used to develop and implement a
Statewide coordinated services system designed to improve results for
children and families, including children with disabilities and their
families, but not to exceed one percent of the amount received by the
State under section 611 of the Act. This system must be coordinated with
and, to the extent appropriate, build on the system of coordinated
services developed by the State under Part C of the Act.
    (8) For subgrants to LEAs for the purposes described in Sec. 300.622
(local capacity building).
    (b) For the purposes of paragraph (a) of this section--
    (1) Direct services means services provided to a child with a
disability by the State directly, by contract, or through other
arrangements; and
    (2) Support services includes implementing the comprehensive system
of personnel development under Secs. 300.380-300.382, recruitment and
training of mediators, hearing officers, and surrogate parents, and
public information and parent training activities relating to FAPE for
children with disabilities.
    (c) Of the funds an SEA retains under paragraph (a) of this section,
the SEA may use the funds directly, or distribute them to LEAs on a
competitive, targeted, or formula basis.

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

Sec. 300.372  Nonapplicability of requirements that prohibit
commingling and supplanting of funds.

    A State may use funds it retains under Sec. 300.602 without regard
to--
    (a) The prohibition on commingling of funds in Sec. 300.152; and
    (b) The prohibition on supplanting other funds in Sec. 300.153.

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

          Comprehensive System of Personnel Development (CSPD)

Sec. 300.380  General CSPD requirements.

    (a) Each State shall develop and implement a comprehensive system of
personnel development that--

[[Page 52]]

    (1) Is consistent with the purposes of this part and with section
635(a)(8) of the Act;
    (2) Is designed to ensure an adequate supply of qualified special
education, regular education, and related services personnel;
    (3) Meets the requirements of Secs. 300.381 and 300.382; and
    (4) Is updated at least every five years.
    (b) A State that has a State improvement grant has met the
requirements of paragraph (a) of this section.

(Authority: 20 U.S.C. 1412(a)(14))

Sec. 300.381  Adequate supply of qualified personnel.

    Each State must include, at least, an analysis of State and local
needs for professional development for personnel to serve children with
disabilities that includes, at a minimum--
    (a) The number of personnel providing special education and related
services; and
    (b) Relevant information on current and anticipated personnel
vacancies and shortages (including the number of individuals described
in paragraph (a) of this section with temporary certification), and on
the extent of certification or retraining necessary to eliminate these
shortages, that is based, to the maximum extent possible, on existing
assessments of personnel needs.

(Authority: 20 U.S.C. 1453(b)(2)(B))

300.382 Improvement strategies.

    Each State must describe the strategies the State will
use to address the needs identified under �300.381.
These strategies must include how the State will address
the identified needs for in-service and pre-service preparation
to ensure that all personnel who work with children with
disabilities (including both professional and paraprofessional
personnel who provide special education, general education,
related services, or early intervention services) have the
skills and knowledge necessary to meet the needs of
children with disabilities. The plan must include a
description of how the State will�

    (a) Prepare general and special education personnel with
the content knowledge and collaborative skills needed
to meet the needs of children with disabilities including how
the State will work with other States on common certification
criteria;

    (b) Prepare professionals and paraprofessionals in the
area of early intervention with the content knowledge
and collaborative skills needed to meet the needs of
infants and toddlers with disabilities;

    (c) Work with institutions of higher education and
other entities that (on both a pre-service and an in-service basis)
prepare personnel who work with children with disabilities to ensure
that those institutions and entities develop the capacity to support
quality professional development programs that
meet State and local needs;

    (d) Work to develop collaborative agreements with other States
for the joint support and development of programs to prepare
personnel for which there is not sufficient demand within a
single State to justify support or development of a program of preparation;

    (e) Work in collaboration with other States, particularly
neighboring States, to address the lack of uniformity and
reciprocity in credentialing of teachers and other personnel;

    (f) Enhance the ability of teachers and others to use
strategies, such as behavioral interventions, to
address the conduct of children with disabilities that
impedes the learning of children with disabilities
and others;

    (g) Acquire and disseminate, to teachers, administrators,
school board members, and related services personnel,significant
knowledge derived from educational research and other
sources, and how the State will, if appropriate,
adopt promising practices, materials, and technology;

    (h)Recruit, prepare, and retain qualified personnel,
including personnel with disabilities and personnel
from groups that are under-represented in the fields of
regular education, special education, and
related
services;

	(i) Insure that the plan is integrated, to the maximum extent possible,
with other professional development
plans and activities, including plans and activities developed
and carried out under other Federal and State laws that
address personnel recruitment and training; and

	(j) Provide for the joint training of parents
and special education, related services, and general education
personnel.

(Authority: 20 U.S.C. 1453 (c)(3)(D))

Secs. 300.383-300.387  [Reserved]

                 Subpart D--Children in Private Schools

Sec. 300.400  Applicability of Secs. 300.400-300.402.

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


    Sections 300.401-300.402 apply only to children with disabilities
who are or have been placed in or referred to a private school or
facility by a public agency as a means of providing special education
and related services.

(Authority: 20 U.S.C. 1412(a)(10)(B))

Sec. 300.401  Responsibility of State educational agency.

    Each SEA shall ensure that a child with a disability who is placed
in or referred to a private school or facility by a public agency--
    (a) Is provided special education and related services--
    (1) In conformance with an IEP that meets the requirements of
Secs. 300.340-300.350; and
    (2) At no cost to the parents;
    (b) Is provided an education that meets the standards that apply to
education provided by the SEA and LEAs (including the requirements of
this part); and
    (c) Has all of the rights of a child with a disability who is served
by a public agency.

(Authority: 20 U.S.C. 1412(a)(10)(B))


Sec. 300.402  Implementation by State educational agency.

    In implementing Sec. 300.401, the SEA shall--
    (a) Monitor compliance through procedures such as written reports,
on-site visits, and parent questionnaires;
    (b) Disseminate copies of applicable standards to each private
school and facility to which a public agency has referred or placed a
child with a disability; and
    (c) Provide an opportunity for those private schools and facilities
to participate in the development and revision of State standards that
apply to them.

(Authority: 20 U.S.C. 1412(a)(10)(B))

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

Sec. 300.403  Placement of children by parents if FAPE is at issue.

    (a) General. This part does not require an LEA to pay for the cost
of education, including special education and related services, of a
child with a disability at a private school or facility if that agency
made FAPE available to the child and the parents elected to place the
child in a private school or facility. However, the public agency shall
include that child in the population whose needs are addressed
consistent with Secs. 300.450-300.462.
    (b) Disagreements about FAPE. 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 of Secs. 300.500-300.517.
    (c) Reimbursement for private school placement. If the parents of a
child with a disability, who previously received special education and
related services under the authority of a public agency, enroll the
child in a private preschool, elementary, or secondary school without
the consent of or referral by the public agency, a court or a hearing
officer may require the agency to reimburse the parents for the cost of
that enrollment if the court or hearing officer finds that the agency
had not made FAPE available to the child in a timely manner prior to
that enrollment and that the private placement is appropriate. A
parental placement may be found to be appropriate by a hearing officer
or a court even if it does not meet the State standards that apply to
education provided by the SEA and LEAs.
    (d) Limitation on reimbursement. The cost of reimbursement described
in

[[Page 54]]

paragraph (c) of this section may be reduced or denied--
    (1) If--
    (i) At the most recent IEP meeting that the parents attended prior
to removal of the child from the public school, the parents did not
inform the IEP team that they were rejecting the placement proposed by
the public agency to provide FAPE to their child, including stating
their concerns and their intent to enroll their child in a private
school at public expense; or
    (ii) At least ten (10) business days (including any holidays that
occur on a business day) prior to the removal of the child from the
public school, the parents did not give written notice to the public
agency of the information described in paragraph (d)(1)(i) of this
section;
    (2) If, prior to the parents' removal of the child from the public
school, the public agency informed the parents, through the notice
requirements described in Sec. 300.503(a)(1), of its intent to evaluate
the child (including a statement of the purpose of the evaluation that
was appropriate and reasonable), but the parents did not make the child
available for the evaluation; or
    (3) Upon a judicial finding of unreasonableness with respect to
actions taken by the parents.
    (e) Exception. Notwithstanding the notice requirement in paragraph
(d)(1) of this section, the cost of reimbursement may not be reduced or
denied for failure to provide the notice if--
    (1) The parent is illiterate and cannot write in English;
    (2) Compliance with paragraph (d)(1) of this section would likely
result in physical or serious emotional harm to the child;
    (3) The school prevented the parent from providing the notice; or
    (4) The parents had not received notice, pursuant to section 615 of
the Act, of the notice requirement in paragraph (d)(1) of this section.

(Authority: 20 U.S.C. 1412(a)(10)(C))

 Children With Disabilities Enrolled by Their Parents in Private Schools

Sec. 300.450  Definition of ``private school children with disabilities.''

    As used in this part, private school children with disabilities
means children with disabilities enrolled by their parents in private
schools or facilities other than children with disabilities covered
under Secs. 300.400-300.402.

(Authority: 20 U.S.C. 1412(a)(10)(A))


Sec. 300.451  Child find for private school children with disabilities.

    (a) Each LEA shall locate, identify, and evaluate all private school
children with disabilities, including religious-school children residing
in the jurisdiction of the LEA, in accordance with Secs. 300.125 and
300.220. The activities undertaken to carry out this responsibility for
private school children with disabilities must be comparable to
activities undertaken for children with disabilities in public schools.
    (b) Each LEA shall consult with appropriate representatives of
private school children with disabilities on how to carry out the
activities described in paragraph (a) of this section.

(Authority: 20 U.S.C. 1412(a)(10)(A)(ii))

Sec. 300.452  Provision of services--basic requirement.

    (a) General. To the extent consistent with their number and location
in the State, provision must be made for the participation of private
school children with disabilities in the program assisted or carried out
under Part B of the Act by providing them with special education and
related services in accordance with Secs. 300.453-300.462.
    (b) SEA Responsibility--services plan. Each SEA shall ensure that,
in accordance with paragraph (a) of this section and Secs. 300.454-
300.456, a services plan is developed and implemented for each private
school child with a disability who has been designated to receive
special education and related services under this part.

(Authority: 20 U.S.C. 1412(a)(10)(A)(i))

[[Page 55]]

Sec. 300.453  Expenditures.

    (a) Formula. To meet the requirement of Sec. 300.452(a), each LEA
must spend on providing special education and related services to
private school children with disabilities--
    (1) For children aged 3 through 21, an amount that is the same
proportion of the LEA's total subgrant under section 611(g) of the Act
as the number of private school children with disabilities aged 3
through 21 residing in its jurisdiction is to the total number of
children with disabilities in its jurisdiction aged 3 through 21; and
    (2) For children aged 3 through 5, an amount that is the same
proportion of the LEA's total subgrant under section 619(g) of the Act
as the number of private school children with disabilities aged 3
through 5 residing in its jurisdiction is to the total number of
children with disabilities in its jurisdiction aged 3 through 5.
    (b) Child count. (1) Each LEA shall--
    (i) Consult with representatives of private school children in
deciding how to conduct the annual count of the number of private school
children with disabilities; and
    (ii) Ensure that the count is conducted on December 1 or the last
Friday of October of each year.
    (2) The child count must be used to determine the amount that the
LEA must spend on providing special education and related services to
private school children with disabilities in the next subsequent fiscal
year.
    (c) Expenditures for child find may not be considered. Expenditures
for child find activities described in Sec. 300.451 may not be
considered in determining whether the LEA has met the requirements of
paragraph (a) of this section.
    
	(d) Additional services permissible. State and local educational
agencies are not prohibited from providing services to private school
children with disabilities in excess of those required by this part,
consistent with State law or local policy.

(Authority: 20 U.S.C. 1412(a)(10)(A))

Sec. 300.454  Services determined.

    (a) No individual right to special education and related services.
(1) No private school child with a disability has an individual right to
receive some or all of the special education and related services that
the child would receive if enrolled in a public school.
    (2) Decisions about the services that will be provided to private
school children with disabilities under Secs. 300.452-300.462, must be
made in accordance with paragraphs (b), and (c) of this section.
    (b) Consultation with representatives of private school children
with disabilities. (1) General. Each LEA shall consult, in a timely and
meaningful way, with appropriate representatives of private school
children with disabilities in light of the funding under Sec. 300.453,
the number of private school children with disabilities, the needs of
private school children with disabilities, and their location to
decide--
    (i) Which children will receive services under Sec. 300.452;
    (ii) What services will be provided;
    (iii) How and where the services will be provided; and
    (iv) How the services provided will be evaluated.
    (2) Genuine opportunity. Each LEA shall give appropriate
representatives of private school children with disabilities a genuine
opportunity to express their views regarding each matter that is subject
to the consultation requirements in this section.
    (3) Timing. The consultation required by paragraph (b)(1) of this
section must occur before the LEA makes any decision that affects the
opportunities of private school children with disabilities to
participate in services under Secs. 300.452-300.462.
    (4) Decisions. The LEA shall make the final decisions with respect
to the services to be provided to eligible private school children.
    (c) Services plan for each child served under Secs. 300.450-300.462.
If a child with a disability is enrolled in a religious or other private
school and will receive special education or related services from an
LEA, the LEA shall--
    (1) Initiate and conduct meetings to develop, review, and revise a
services plan for the child, in accordance with Sec. 300.455(b); and

[[Page 56]]

    (2) Ensure that a representative of the religious or other private
school attends each meeting. If the representative cannot attend, the
LEA shall use other methods to ensure participation by the private
school, including individual or conference telephone calls.

(Authority: 1412(a)(10)(A))

Sec. 300.455  Services provided.

    (a) General. (1) The services provided to private school children
with disabilities must be provided by personnel meeting the same
standards as personnel providing services in the public schools.
    (2) Private school children with disabilities may receive a
different amount of services than children with disabilities in public
schools.
    (3) No private school child with a disability is entitled to any
service or to any amount of a service the child would receive if
enrolled in a public school.
    (b) Services provided in accordance with a services plan. (1) Each
private school child with a disability who has been designated to
receive services under Sec. 300.452 must have a services plan that
describes the specific special education and related services that the
LEA will provide to the child in light of the services that the LEA has
determined, through the process described in Secs. 300.453-300.454, it
will make available to private school children with disabilities.
    (2) The services plan must, to the extent appropriate--
    (i) Meet the requirements of Sec. 300.347, with respect to the
services provided; and
    (ii) Be developed, reviewed, and revised consistent with
Secs. 300.342-300.346.

(Authority: 20 U.S.C. 1412(a)(10)(A))

Sec. 300.456  Location of services; transportation.

    (a) On-site. Services provided to 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.
    (b) Transportation. (1) General. (i) If necessary for the child to
benefit from or participate in the services provided under this part, a
private school child with a disability must be provided transportation--
    (A) From the child's school or the child's home to a site other than
the private school; and
    (B) From the service site to the private school, or to the child's
home, depending on the timing of the services.
    (ii) LEAs are not required to provide transportation from the
child's home to the private school.
    (2) Cost of transportation. The cost of the transportation described
in paragraph (b)(1)(i) of this section may be included in calculating
whether the LEA has met the requirement of Sec. 300.453.

(Authority: 20 U.S.C. 1412(a)(10)(A))

Sec. 300.457  Complaints.

    (a) Due process inapplicable. The procedures in Secs. 300.504-
300.515 do not apply to complaints that an LEA has failed to meet the
requirements of Secs. 300.452-300.462, including the provision of
services indicated on the child's services plan.
    (b) Due process applicable. The procedures in Secs. 300.504-300.515
do apply to complaints that an LEA has failed to meet the requirements
of Sec. 300.451, including the requirements of Secs. 300.530-300.543.
    (c) State complaints. Complaints that an SEA or LEA has failed to
meet the requirements of Secs. 300.451-300.462 may be filed under the
procedures in Secs. 300.660-300.662.

(Authority: 20 U.S.C. 1412(a)(10)(A))

Sec. 300.458  Separate classes prohibited.

    An LEA may not use funds available under section 611 or 619 of the
Act for classes that are organized separately on the basis of school
enrollment or religion of the students if--
    (a) The classes are at the same site; and
    (b) The classes include students enrolled in public schools and
students enrolled in private schools.

(Authority: 20 U.S.C. 1412(a)(10)(A))

Sec. 300.459  Requirement that funds not benefit a private school.

    (a) An LEA may not use funds provided under section 611 or 619 of
the Act

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to finance the existing level of instruction in a private school or to
otherwise benefit the private school.
    (b) The LEA shall use funds provided under Part B of the Act to meet
the special education and related services needs of students enrolled in
private schools, but not for--
    (1) The needs of a private school; or
    (2) The general needs of the students enrolled in the private
school.

(Authority: 20 U.S.C. 1412(a)(10)(A))

Sec. 300.460  Use of public school personnel.

    An LEA may use funds available under sections 611 and 619 of the Act
to make public school personnel available in other than public
facilities--
    (a) To the extent necessary to provide services under Secs. 300.450-
300.462 for private school children with disabilities; and
    (b) If those services are not normally provided by the private
school.

(Authority: 20 U.S.C. 1412(a)(10)(A))

Sec. 300.461  Use of private school personnel.

    An LEA may use funds available under section 611 or 619 of the Act
to pay for the services of an employee of a private school to provide
services under Secs. 300.450-300.462 if--
    (a) The employee performs the services outside of his or her regular
hours of duty; and
    (b) The employee performs the services under public supervision and
control.

(Authority: 20 U.S.C. 1412(a)(10)(A))


Sec. 300.462  Requirements concerning property, equipment, and
supplies for the benefit of private school children
with disabilities.

    (a) A public agency must keep title to and exercise continuing
administrative control of all property, equipment, and supplies that the
public agency acquires with funds under section 611 or 619 of the Act
for the benefit of private school children with disabilities.
    (b) The public agency may place equipment and supplies in a private
school for the period of time needed for the program.
    (c) The public agency shall ensure that the equipment and supplies
placed in a private school--
    (1) Are used only for Part B purposes; and
    (2) Can be removed from the private school without remodeling the
private school facility.
    (d) The public agency shall remove equipment and supplies from a
private school if--
    (1) The equipment and supplies are no longer needed for Part B
purposes; or
    (2) Removal is necessary to avoid unauthorized use of the equipment
and supplies for other than Part B purposes.
    (e) No funds under Part B of the Act may be used for repairs, minor
remodeling, or construction of private school facilities.

(Authority: 20 U.S.C. 1412(a)(10)(A))

                         Procedures for By-Pass

Sec. 300.480  By-pass--general.

    (a) The Secretary implements a by-pass if an SEA is, and was on
December 2, 1983, prohibited by law from providing for the participation
of private school children with disabilities in the program assisted or
carried out under Part B of the Act, as required by section
612(a)(10)(A) of the Act and by Secs. 300.452-300.462.
    (b) The Secretary waives the requirement of section 612(a)(10)(A) of
the Act and of Secs. 300.452-300.462 if the Secretary
implements a by-pass.

(Authority: 20 U.S.C. 1412(f)(1))

Sec. 300.481  Provisions for services under a by-pass.

    (a) Before implementing a by-pass, the Secretary consults with
appropriate public and private school officials, including SEA
officials, in the affected State to consider matters such as--
    (1) The prohibition imposed by State law that results in the need
for a by-pass;
    (2) The scope and nature of the services required by private school
children with disabilities in the State, and the number of children to
be served under the by-pass; and
    (3) The establishment of policies and procedures to ensure that
private

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school children with disabilities receive services consistent with the
requirements of section 612(a)(10)(A) of the Act and Secs. 300.452-
300.462.
    (b) After determining that a by-pass is required, the Secretary
arranges for the provision of services to private school children with
disabilities in the State in a manner consistent with the requirements
of section 612(a)(10)(A) of the Act and Secs. 300.452-300.462 by
providing services through one or more agreements with appropriate
parties.
    (c) For any fiscal year that a by-pass is implemented, the Secretary
determines the maximum amount to be paid to the providers of services by
multiplying--
    (1) A per child amount that may not exceed the amount per child
provided by the Secretary under Part B of the Act for all children with
disabilities in the State for the preceding fiscal year; by
    (2) The number of private school children with disabilities (as
defined by Secs. 300.7(a) and 300.450) in the State, as determined by
the Secretary on the basis of the most recent satisfactory data
available, which may include an estimate of the number of those children
with disabilities.
    (d) The Secretary deducts from the State's allocation under Part B
of the Act the amount the Secretary determines is necessary to implement
a by-pass and pays that amount to the provider of services. The
Secretary may withhold this amount from the State's allocation pending
final resolution of any investigation or complaint that could result in
a determination that a by-pass must be implemented.

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

Sec. 300.482  Notice of intent to implement a by-pass.

    (a) Before taking any final action to implement a by-pass, the
Secretary provides the affected SEA with written notice.
    (b) In the written notice, the Secretary--
    (1) States the reasons for the proposed by-pass in sufficient detail
to allow the SEA to respond; and
    (2) Advises the SEA that it has a specific period of time (at least
45 days) from receipt of the written notice to submit written objections
to the proposed by-pass and that it may request in writing the
opportunity for a hearing to show cause why a by-pass should not be
implemented.
    (c) The Secretary sends the notice to the SEA by certified mail with
return receipt requested.

(Authority: 20 U.S.C. 1412(f)(3)(A))

Sec. 300.483  Request to show cause.

    An SEA seeking an opportunity to show cause why a by-pass should not
be implemented shall submit a written request for a show cause hearing
to the Secretary.

(Authority: 20 U.S.C. 1412(f)(3))

Sec. 300.484  Show cause hearing.

    (a) If a show cause hearing is requested, the Secretary--
    (1) Notifies the SEA and other appropriate public and private school
officials of the time and place for the hearing; and
    (2) Designates a person to conduct the show cause hearing. The
designee must not have had any responsibility for the matter brought for
a hearing.
    (b) At the show cause hearing, the designee considers matters such
as--
    (1) The necessity for implementing a by-pass;
    (2) Possible factual errors in the written notice of intent to
implement a by-pass; and
    (3) The objections raised by public and private school
representatives.
    (c) The designee may regulate the course of the proceedings and the
conduct of parties during the pendency of the proceedings. The designee
takes all steps necessary to conduct a fair and impartial proceeding, to
avoid delay, and to maintain order.
    (d) The designee may interpret applicable statutes and regulations,
but may not waive them or rule on their validity.
    (e) The designee arranges for the preparation, retention, and, if
appropriate, dissemination of the record of the hearing.

(Authority: 20 U.S.C. 1412(f)(3))

Sec. 300.485  Decision.

    (a) The designee who conducts the show cause hearing--

[[Page 59]]

    (1) Issues a written decision that includes a statement of findings;
and
    (2) Submits a copy of the decision to the Secretary and sends a copy
to each party by certified mail with return receipt requested.
    (b) Each party may submit comments and recommendations on the
designee's decision to the Secretary within 15 days of the date the
party receives the designee's decision.
    (c) The Secretary adopts, reverses, or modifies the designee's
decision and notifies the SEA of the Secretary's final action. That
notice is sent by certified mail with return receipt requested.

(Authority: 20 U.S.C. 1412(f)(3))

Sec. 300.486  Filing requirements.

    (a) Any written submission under Secs. 300.482-300.485 must be filed
by hand-delivery, by mail, or by facsimile transmission. The Secretary
discourages the use of facsimile transmission for documents longer than
five pages.
    (b) The filing date under paragraph (a) of this section is the date
the document is--
    (1) Hand-delivered;
    (2) Mailed; or
    (3) Sent by facsimile transmission.
    (c) A party filing by facsimile transmission is responsible for
confirming that a complete and legible copy of the document was received
by the Department.
    (d) If a document is filed by facsimile transmission, the Secretary
or the hearing officer, as applicable, may require the filing of a
follow-up hard copy by hand-delivery or by mail within a reasonable
period of time.
    (e) If agreed upon by the parties, service of a document may be made
upon the other party by facsimile transmission.

(Authority: 20 U.S.C. 1412(f)(3))

Sec. 300.487  Judicial review.

    If dissatisfied with the Secretary's final action, the SEA may,
within 60 days after notice of that action, file a petition for review
with the United States Court of Appeals for the circuit in which the
State is located. The procedures for judicial review are described in
section 612(f)(3)(B)-(D) of the Act.

(Authority: 20 U.S.C. 1412(f)(3)(B)-(D))