Improving Systems, Practices and Outcomes

ARCHIVED - 1999 Federal Regulations for 34 CFR Part 300, Assistance to States for the Education of Children With Disabilities

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Subpart E--Procedural Safeguards
 
Sec. 300.500  General responsibility of public agencies; definitions.

             Due Process Procedures for Parents and Children


    (a) Responsibility of SEA and other public agencies. Each SEA shall 
ensure that each public agency establishes, maintains, and implements 
procedural safeguards that meet the requirements of Secs. 300.500-
300.529.
    (b) Definitions of ``consent,'' ``evaluation,'' and ``personally 
identifiable.'' As used in this part --
    (1) Consent means that --
    (i) The parent has been fully informed of all information relevant 
to the activity for which consent is sought, in his or her native 
language, or other mode of communication;
    (ii) The parent understands and agrees in writing to the carrying 
out of the activity for which his or her consent is sought, and the 
consent describes that activity and lists the records (if any) that will 
be released and to whom; and
    (iii)(A) The parent understands that the granting of consent is 
voluntary on the part of the parent and may be revoked at anytime.
    (B) If a parent revokes consent, that revocation is not retroactive 
(i.e., it does not negate an action that has occurred after the consent 
was given and before the consent was revoked).
    (2) Evaluation means procedures used in accordance with 
Secs. 300.530-300.536 to determine whether a child has a disability and 
the nature and extent of the special education and related services that 
the child needs; and
    (3) Personally identifiable means that information includes--
    (i) The name of the child, the child's parent, or other family 
member;
    (ii) The address of the child;
    (iii) A personal identifier, such as the child's social security 
number or student number; or
    (iv) A list of personal characteristics or other information that 
would make

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it possible to identify the child with reasonable certainty.

(Authority: 20 U.S.C. 1415(a))

Sec. 300.501  Opportunity to examine records; parent participation in 
meetings.

    (a) General. The parents of a child with a disability must be 
afforded, in accordance with the procedures of Secs. 300.562-300.569, an 
opportunity to--
    (1) Inspect and review all education records with respect to--
    (i) The identification, evaluation, and educational placement of the 
child; and
    (ii) The provision of FAPE to the child; and
    (2) Participate in meetings with respect to --
    (i) The identification, evaluation, and educational placement of the 
child; and
    (ii) The provision of FAPE to the child.
    (b) Parent participation in meetings. (1) Each public agency shall 
provide notice consistent with Sec. 300.345(a)(1) and (b)(1) to ensure 
that parents of children with disabilities have the opportunity to 
participate in meetings described in paragraph (a)(2) of this section.
    (2) A meeting does not include informal or unscheduled conversations 
involving public agency personnel and conversations on issues such as 
teaching methodology, lesson plans, or coordination of service provision 
if those issues are not addressed in the child's IEP. A meeting also 
does not include preparatory activities that public agency personnel 
engage in to develop a proposal or response to a parent proposal that 
will be discussed at a later meeting.
    (c) Parent involvement in placement decisions. (1) Each public 
agency shall ensure that the parents of each child with a disability are 
members of any group that makes decisions on the educational placement 
of their child.
    (2) In implementing the requirements of paragraph (c)(1) of this 
section, the public agency shall use procedures consistent with the 
procedures described in Sec. 300.345(a) through (b)(1).
    (3) If neither parent can participate in a meeting in which a 
decision is to be made relating to the educational placement of their 
child, the public agency shall use other methods to ensure their 
participation, including individual or conference telephone calls, or 
video conferencing.
    (4) A placement decision may be made by a group without the 
involvement of the parents, if the public agency is unable to obtain the 
parents' participation in the decision. In this case, the public agency 
must have a record of its attempt to ensure their involvement, including 
information that is consistent with the requirements of Sec. 300.345(d).
    (5) The public agency shall make reasonable efforts to ensure that 
the parents understand, and are able to participate in, any group 
discussions relating to the educational placement of their child, 
including arranging for an interpreter for parents with deafness, or 
whose native language is other than English.

(Authority: 20 U.S.C. 1414(f), 1415(b)(1))



Sec. 300.502  Independent educational evaluation.

    (a) General. (1) The parents of a child with a disability have the 
right under this part to obtain an independent educational evaluation of 
the child, subject to paragraphs (b) through (e) of this section.
    (2) Each public agency shall provide to parents, upon request for an 
independent educational evaluation, information about where an 
independent educational evaluation may be obtained, and the agency 
criteria applicable for independent educational evaluations as set forth 
in paragraph (e) of this section.
    (3) For the purposes of this part--
    (i) Independent educational evaluation means an evaluation conducted 
by a qualified examiner who is not employed by the public agency 
responsible for the education of the child in question; and
    (ii) Public expense means that the public agency either pays for the 
full cost of the evaluation or ensures that the evaluation is otherwise 
provided at no cost to the parent, consistent with Sec. 300.301.
    (b) Parent right to evaluation at public expense. (1) A parent has 
the right to an independent educational evaluation at

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public expense if the parent disagrees with an evaluation obtained by 
the public agency.
    (2) If a parent requests an independent educational evaluation at 
public expense, the public agency must, without unnecessary delay, 
either--
    (i) Initiate a hearing under Sec. 300.507 to show that its 
evaluation is appropriate; or
    (ii) Ensure that an independent educational evaluation is provided 
at public expense, unless the agency demonstrates in a hearing under 
Sec. 300.507 that the evaluation obtained by the parent did not meet 
agency criteria.
    (3) If the public agency initiates a hearing and the final decision 
is that the agency's evaluation is appropriate, the parent still has the 
right to an independent educational evaluation, but not at public 
expense.
    (4) If a parent requests an independent educational evaluation, the 
public agency may ask for the parent's reason why he or she objects to 
the public evaluation. However, the explanation by the parent may not be 
required and the public agency may not unreasonably delay either 
providing the independent educational evaluation at public expense or 
initiating a due process hearing to defend the public evaluation.
    (c) Parent-initiated evaluations. If the parent obtains an 
independent educational evaluation at private expense, the results of 
the evaluation--
    (1) Must be considered by the public agency, if it meets agency 
criteria, in any decision made with respect to the provision of FAPE to 
the child; and
    (2) May be presented as evidence at a hearing under this subpart 
regarding that child.
    (d) Requests for evaluations by hearing officers. If a hearing 
officer requests an independent educational evaluation as part of a 
hearing, the cost of the evaluation must be at public expense.
    (e) Agency criteria. (1) If an independent educational evaluation is 
at public expense, the criteria under which the evaluation is obtained, 
including the location of the evaluation and the qualifications of the 
examiner, must be the same as the criteria that the public agency uses 
when it initiates an evaluation, to the extent those criteria are 
consistent with the parent's right to an independent educational 
evaluation.
    (2) Except for the criteria described in paragraph (e)(1) of this 
section, a public agency may not impose conditions or timelines related 
to obtaining an independent educational evaluation at public expense.

(Authority: 20 U.S.C. 1415(b)(1))



Sec. 300.503  Prior notice by the public agency; content of notice.

    (a) Notice. (1) Written notice that meets the requirements of 
paragraph (b) of this section must be given to the parents of a child 
with a disability a reasonable time before the public agency--
    (i) Proposes to initiate or change the identification, evaluation, 
or educational placement of the child or the provision of FAPE to the 
child; or
    (ii) Refuses to initiate or change the identification, evaluation, 
or educational placement of the child or the provision of FAPE to the 
child.
    (2) If the notice described under paragraph (a)(1) of this section 
relates to an action proposed by the public agency that also requires 
parental consent under Sec. 300.505, the agency may give notice at the 
same time it requests parent consent.
    (b) Content of notice. The notice required under paragraph (a) of 
this section must include--
    (1) A description of the action proposed or refused by the agency;
    (2) An explanation of why the agency proposes or refuses to take the 
action;
    (3) A description of any other options that the agency considered 
and the reasons why those options were rejected;
    (4) A description of each evaluation procedure, test, record, or 
report the agency used as a basis for the proposed or refused action;
    (5) A description of any other factors that are relevant to the 
agency's proposal or refusal;
    (6) A statement that the parents of a child with a disability have 
protection under the procedural safeguards of this part and, if this 
notice is not an initial referral for evaluation, the means by which a 
copy of a description of the procedural safeguards can be obtained; and

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    (7) Sources for parents to contact to obtain assistance in 
understanding the provisions of this part.
    (c) Notice in understandable language. (1) The notice required under 
paragraph (a) of this section must be--
    (i) Written in language understandable to the general public; and
    (ii) Provided in the native language of the parent or other mode of 
communication used by the parent, unless it is clearly not feasible to 
do so.
    (2) If the native language or other mode of communication of the 
parent is not a written language, the public agency shall take steps to 
ensure--
    (i) That the notice is translated orally or by other means to the 
parent in his or her native language or other mode of communication;
    (ii) That the parent understands the content of the notice; and
    (iii) That there is written evidence that the requirements in 
paragraphs (c)(2) (i) and (ii) of this section have been met.

(Authority: 20 U.S.C. 1415(b)(3), (4) and (c), 1414(b)(1))



Sec. 300.504  Procedural safeguards notice.

    (a) General. A copy of the procedural safeguards available to the 
parents of a child with a disability must be given to the parents, at a 
minimum--
    (1) Upon initial referral for evaluation;
    (2) Upon each notification of an IEP meeting;
    (3) Upon reevaluation of the child; and
    (4) Upon receipt of a request for due process under Sec. 300.507.
    (b) Contents. The procedural safeguards notice must include a full 
explanation of all of the procedural safeguards available under 
Secs. 300.403, 300.500-300.529, and 300.560-300.577, and the State 
complaint procedures available under Secs. 300.660-300.662 relating to--
    (1) Independent educational evaluation;
    (2) Prior written notice;
    (3) Parental consent;
    (4) Access to educational records;
    (5) Opportunity to present complaints to initiate due process 
hearings;
    (6) The child's placement during pendency of due process 
proceedings;
    (7) Procedures for students who are subject to placement in an 
interim alternative educational setting;
    (8) Requirements for unilateral placement by parents of children in 
private schools at public expense;
    (9) Mediation;
    (10) Due process hearings, including requirements for disclosure of 
evaluation results and recommendations;
    (11) State-level appeals (if applicable in that State);
    (12) Civil actions;
    (13) Attorneys' fees; and
    (14) The State complaint procedures under Secs. 300.660-300.662, 
including a description of how to file a complaint and the timelines 
under those procedures.
    (c) Notice in understandable language. The notice required under 
paragraph (a) of this section must meet the requirements of 
Sec. 300.503(c).

(Authority: 20 U.S.C. 1415(d))



Sec. 300.505  Parental consent.

    (a) General. (1) Subject to paragraphs (a)(3), (b) and (c) of this 
section, informed parent consent must be obtained before--
    (i) Conducting an initial evaluation or reevaluation; and
    (ii) Initial provision of special education and related services to 
a child with a disability.
    (2) Consent for initial evaluation may not be construed as consent 
for initial placement described in paragraph (a)(1)(ii) of this section.
    (3) Parental consent is not required before--
    (i) Reviewing existing data as part of an evaluation or a 
reevaluation; or
    (ii) Administering a test or other evaluation that is administered 
to all children unless, before administration of that test or 
evaluation, consent is required of parents of all children.
    (b) Refusal. If the parents of a child with a disability refuse 
consent for initial evaluation or a reevaluation, the agency may 
continue to pursue those evaluations by using the due process procedures 
under Secs. 300.507-300.509, or the mediation procedures under 
Sec. 300.506 if appropriate, except to the extent inconsistent with 
State law relating to parental consent.

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    (c) Failure to respond to request for reevaluation. (1) Informed 
parental consent need not be obtained for reevaluation if the public 
agency can demonstrate that it has taken reasonable measures to obtain 
that consent, and the child's parent has failed to respond.
    (2) To meet the reasonable measures requirement in paragraph (c)(1) 
of this section, the public agency must use procedures consistent with 
those in Sec. 300.345(d).
    (d) Additional State consent requirements. In addition to the 
parental consent requirements described in paragraph (a) of this 
section, a State may require parental consent for other services and 
activities under this part if it ensures that each public agency in the 
State establishes and implements effective procedures to ensure that a 
parent's refusal to consent does not result in a failure to provide the 
child with FAPE.
    (e) Limitation. A public agency may not use a parent's refusal to 
consent to one service or activity under paragraphs (a) and (d) of this 
section to deny the parent or child any other service, benefit, or 
activity of the public agency, except as required by this part.

(Authority: 20 U.S.C. 1415(b)(3); 1414(a)(1)(C) and (c)(3))



Sec. 300.506  Mediation.

    (a) General. Each public agency shall ensure that procedures are 
established and implemented to allow parties to disputes involving any 
matter described in Sec. 300.503(a)(1) to resolve the disputes through a 
mediation process that, at a minimum, must be available whenever a 
hearing is requested under Secs. 300.507 or 300.520-300.528.
    (b) Requirements. The procedures must meet the following 
requirements:
    (1) The procedures must ensure that the mediation process--
    (i) Is voluntary on the part of the parties;
    (ii) Is not used to deny or delay a parent's right to a due process 
hearing under Sec. 300.507, or to deny any other rights afforded under 
Part B of the Act; and
    (iii) Is conducted by a qualified and impartial mediator who is 
trained in effective mediation techniques.
    (2)(i) The State shall maintain a list of individuals who are 
qualified mediators and knowledgeable in laws and regulations relating 
to the provision of special education and related services.
    (ii) If a mediator is not selected on a random (e.g., a rotation) 
basis from the list described in paragraph (b)(2)(i) of this section, 
both parties must be involved in selecting the mediator and agree with 
the selection of the individual who will mediate.
    (3) The State shall bear the cost of the mediation process, 
including the costs of meetings described in paragraph (d) of this 
section.
    (4) Each session in the mediation process must be scheduled in a 
timely manner and must be held in a location that is convenient to the 
parties to the dispute.
    (5) An agreement reached by the parties to the dispute in the 
mediation process must be set forth in a written mediation agreement.
    (6) Discussions that occur during the mediation process must be 
confidential and may not be used as evidence in any subsequent due 
process hearings or civil proceedings, and the parties to the mediation 
process may be required to sign a confidentiality pledge prior to the 
commencement of the process.
    (c) Impartiality of mediator. (1) An individual who serves as a 
mediator under this part--
    (i) May not be an employee of--
    (A) Any LEA or any State agency described under Sec. 300.194; or
    (B) An SEA that is providing direct services to a child who is the 
subject of the mediation process; and
    (ii) Must not have a personal or professional conflict of interest.
    (2) A person who otherwise qualifies as a mediator is not an 
employee of an LEA or State agency described under Sec. 300.194 solely 
because he or she is paid by the agency to serve as a mediator.
    (d) Meeting to encourage mediation. (1) A public agency may 
establish procedures to require parents who elect not to use the 
mediation process to meet, at a time and location convenient to the 
parents, with a disinterested party--
    (i) Who is under contract with a parent training and information 
center or community parent resource center in

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the State established under section 682 or 683 of the Act, or an 
appropriate alternative dispute resolution entity; and
    (ii) Who would explain the benefits of the mediation process, and 
encourage the parents to use the process.
    (2) A public agency may not deny or delay a parent's right to a due 
process hearing under Sec. 300.507 if the parent fails to participate in 
the meeting described in paragraph (d)(1) of this section.

(Authority: 20 U.S.C. 1415(e))



Sec. 300.507  Impartial due process hearing; parent notice.

    (a) General. (1) A parent or a public agency may initiate a hearing 
on any of the matters described in Sec. 300.503(a)(1) and (2) (relating 
to the identification, evaluation or educational placement of a child 
with a disability, or the provision of FAPE to the child).
    (2) When a hearing is initiated under paragraph (a)(1) of this 
section, the public agency shall inform the parents of the availability 
of mediation described in Sec. 300.506.
    (3) The public agency shall inform the parent of any free or low-
cost legal and other relevant services available in the area if--
    (i) The parent requests the information; or
    (ii) The parent or the agency initiates a hearing under this 
section.
    (b) Agency responsible for conducting hearing. The hearing described 
in paragraph (a) of this section must be conducted by the SEA or the 
public agency directly responsible for the education of the child, as 
determined under State statute, State regulation, or a written policy of 
the SEA.
    (c) Parent notice to the public agency. (1) General. The public 
agency must have procedures that require the parent of a child with a 
disability or the attorney representing the child, to provide notice 
(which must remain confidential) to the public agency in a request for a 
hearing under paragraph (a)(1) of this section.
    (2) Content of parent notice. The notice required in paragraph 
(c)(1) of this section must include--
    (i) The name of the child;
    (ii) The address of the residence of the child;
    (iii) The name of the school the child is attending;
    (iv) A description of the nature of the problem of the child 
relating to the proposed or refused initiation or change, including 
facts relating to the problem; and
    (v) A proposed resolution of the problem to the extent known and 
available to the parents at the time.
    (3) Model form to assist parents. Each SEA shall develop a model 
form to assist parents in filing a request for due process that includes 
the information required in paragraphs (c)(1) and (2) of this section.
    (4) Right to due process hearing. A public agency may not deny or 
delay a parent's right to a due process hearing for failure to provide 
the notice required in paragraphs (c)(1) and (2) of this section.

(Authority: 20 U.S.C. 1415(b)(5), (b)(6), (b)(7), (b)(8), (e)(1) and 
(f)(1))



Sec. 300.508  Impartial hearing officer.

    (a) A hearing may not be conducted--
    (1) By a person who is an employee of the State agency or the LEA 
that is involved in the education or care of the child; or
    (2) By any person having a personal or professional interest that 
would conflict with his or her objectivity in the hearing.
    (b) A person who otherwise qualifies to conduct a hearing under 
paragraph (a) of this section is not an employee of the agency solely 
because he or she is paid by the agency to serve as a hearing officer.
    (c) Each public agency shall keep a list of the persons who serve as 
hearing officers. The list must include a statement of the 
qualifications of each of those persons.

(Authority: 20 U.S.C. 1415(f)(3))



Sec. 300.509  Hearing rights.

    (a) General. Any party to a hearing conducted pursuant to 
Secs. 300.507 or 300.520-300.528, or an appeal conducted pursuant to 
Sec. 300.510, has the right to--
    (1) Be accompanied and advised by counsel and by individuals with 
special knowledge or training with respect to

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the problems of children with disabilities;
    (2) Present evidence and confront, cross-examine, and compel the 
attendance of witnesses;
    (3) Prohibit the introduction of any evidence at the hearing that 
has not been disclosed to that party at least 5 business days before the 
hearing;
    (4) Obtain a written, or, at the option of the parents, electronic, 
verbatim record of the hearing; and
    (5) Obtain written, or, at the option of the parents, electronic 
findings of fact and decisions.
    (b) Additional disclosure of information. (1) At least 5 business 
days prior to a hearing conducted pursuant to Sec. 300.507(a), each 
party shall disclose to all other parties all evaluations completed by 
that date and recommendations based on the offering party's evaluations 
that the party intends to use at the hearing.
    (2) A hearing officer may bar any party that fails to comply with 
paragraph (b)(1) of this section from introducing the relevant 
evaluation or recommendation at the hearing without the consent of the 
other party.
    (c) Parental rights at hearings. (1) Parents involved in hearings 
must be given the right to--
    (i) Have the child who is the subject of the hearing present; and
    (ii) Open the hearing to the public.
    (2) The record of the hearing and the findings of fact and decisions 
described in paragraphs (a)(4) and (a)(5) of this section must be 
provided at no cost to parents.
    (d) Findings and decision to advisory panel and general public. The 
public agency, after deleting any personally identifiable information, 
shall --
    (1) Transmit the findings and decisions referred to in paragraph 
(a)(5) of this section to the State advisory panel established under 
Sec. 300.650; and
    (2) Make those findings and decisions available to the public.

(Authority: 20 U.S.C. 1415(f)(2) and (h))



Sec. 300.510  Finality of decision; appeal; impartial review.

    (a) Finality of decision. A decision made in a hearing conducted 
pursuant to Secs. 300.507 or 300.520-300.528 is final, except that any 
party involved in the hearing may appeal the decision under the 
provisions of paragraph (b) of this section and Sec. 300.512.

(Authority: 20 U.S.C. 1415(i)(1)(A))

    (b) Appeal of decisions; impartial review. (1) General. If the 
hearing required by Sec. 300.507 is conducted by a public agency other 
than the SEA, any party aggrieved by the findings and decision in the 
hearing may appeal to the SEA.
    (2) SEA responsibility for review. If there is an appeal, the SEA 
shall conduct an impartial review of the hearing. The official 
conducting the review shall--
    (i) Examine the entire hearing record;
    (ii) Ensure that the procedures at the hearing were consistent with 
the requirements of due process;
    (iii) Seek additional evidence if necessary. If a hearing is held to 
receive additional evidence, the rights in Sec. 300.509 apply;
    (iv) Afford the parties an opportunity for oral or written argument, 
or both, at the discretion of the reviewing official;
    (v) Make an independent decision on completion of the review; and
    (vi) Give a copy of the written, or, at the option of the parents, 
electronic findings of fact and decisions to the parties.
    (c) Findings and decision to advisory panel and general public. The 
SEA, after deleting any personally identifiable information, shall--
    (1) Transmit the findings and decisions referred to in paragraph 
(b)(2)(vi) of this section to the State advisory panel established under 
Sec. 300.650; and
    (2) Make those findings and decisions available to the public.
    (d) Finality of review decision. The decision made by the reviewing 
official is final unless a party brings a civil action under 
Sec. 300.512.

(Authority: 20 U.S.C. 1415(g); H. R. Rep. No. 94-664, at p. 49 (1975))



Sec. 300.511  Timelines and convenience of hearings and reviews.

    (a) The public agency shall ensure that not later than 45 days after 
the receipt of a request for a hearing--

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    (1) A final decision is reached in the hearing; and
    (2) A copy of the decision is mailed to each of the parties.
    (b) The SEA shall ensure that not later than 30 days after the 
receipt of a request for a review--
    (1) A final decision is reached in the review; and
    (2) A copy of the decision is mailed to each of the parties.
    (c) A hearing or reviewing officer may grant specific extensions of 
time beyond the periods set out in paragraphs (a) and (b) of this 
section at the request of either party.
    (d) Each hearing and each review involving oral arguments must be 
conducted at a time and place that is reasonably convenient to the 
parents and child involved.

(Authority: 20 U.S.C. 1415)



Sec. 300.512  Civil action.

    (a) General. Any party aggrieved by the findings and decision made 
under Secs. 300.507 or 300.520-300.528 who does not have the right to an 
appeal under Sec. 300.510(b), and any party aggrieved by the findings 
and decision under Sec. 300.510(b), has the right to bring a civil 
action with respect to the complaint presented pursuant to Sec. 300.507. 
The action may be brought in any State court of competent jurisdiction 
or in a district court of the United States without regard to the amount 
in controversy.
    (b) Additional requirements. In any action brought under paragraph 
(a) of this section, the court--
    (1) Shall receive the records of the administrative proceedings;
    (2) Shall hear additional evidence at the request of a party; and
    (3) Basing its decision on the preponderance of the evidence, shall 
grant the relief that the court determines to be appropriate.
    (c) Jurisdiction of district courts. The district courts of the 
United States have jurisdiction of actions brought under section 615 of 
the Act without regard to the amount in controversy.
    (d) Rule of construction. Nothing in this part restricts or limits 
the rights, procedures, and remedies available under the Constitution, 
the Americans with Disabilities Act of 1990, title V of the 
Rehabilitation Act of 1973, or other Federal laws protecting the rights 
of children with disabilities, except that before the filing of a civil 
action under these laws seeking relief that is also available under 
section 615 of the Act, the procedures under Secs. 300.507 and 300.510 
must be exhausted to the same extent as would be required had the action 
been brought under section 615 of the Act.

(Authority: 20 U.S.C. 1415(i)(2), (i)(3)(A), and 1415(l))



Sec. 300.513  Attorneys' fees.

    (a) In any action or proceeding brought under section 615 of the 
Act, the court, in its discretion, may award reasonable attorneys' fees 
as part of the costs to the parents of a child with a disability who is 
the prevailing party.
    (b)(1) Funds under Part B of the Act may not be used to pay 
attorneys' fees or costs of a party related to an action or proceeding 
under section 615 of the Act and subpart E of this part.
    (2) Paragraph (b)(1) of this section does not preclude a public 
agency from using funds under Part B of the Act for conducting an action 
or proceeding under section 615 of the Act.
    (c) A court awards reasonable attorney's fees under section 
615(i)(3) of the Act consistent with the following:
    (1) Determination of amount of attorneys' fees. Fees awarded under 
section 615(i)(3) of the Act must be based on rates prevailing in the 
community in which the action or proceeding arose for the kind and 
quality of services furnished. No bonus or multiplier may be used in 
calculating the fees awarded under this subsection.
    (2) Prohibition of attorneys' fees and related costs for certain 
services. (i) Attorneys' fees may not be awarded and related costs may 
not be reimbursed in any action or proceeding under section 615 of the 
Act for services performed subsequent to the time of a written offer of 
settlement to a parent if--
    (A) The offer is made within the time prescribed by Rule 68 of the 
Federal Rules of Civil Procedure or, in the case of an administrative 
proceeding, at any time more than 10 days before the proceeding begins;

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    (B) The offer is not accepted within 10 days; and
    (C) The court or administrative hearing officer finds that the 
relief finally obtained by the parents is not more favorable to the 
parents than the offer of settlement.
    (ii) Attorneys' fees may not be awarded relating to any meeting of 
the IEP team unless the meeting is convened as a result of an 
administrative proceeding or judicial action, or at the discretion of 
the State, for a mediation described in Sec. 300.506 that is conducted 
prior to the filing of a request for due process under Secs. 300.507 or 
300.520-300.528.
    (3) Exception to prohibition on attorneys' fees and related costs. 
Notwithstanding paragraph (c)(2) of this section, an award of attorneys' 
fees and related costs may be made to a parent who is the prevailing 
party and who was substantially justified in rejecting the settlement 
offer.
    (4) Reduction of amount of attorneys' fees. Except as provided in 
paragraph (c)(5) of this section, the court reduces, accordingly, the 
amount of the attorneys' fees awarded under section 615 of the Act, if 
the court finds that--
    (i) The parent, during the course of the action or proceeding, 
unreasonably protracted the final resolution of the controversy;
    (ii) The amount of the attorneys' fees otherwise authorized to be 
awarded unreasonably exceeds the hourly rate prevailing in the community 
for similar services by attorneys of reasonably comparable skill, 
reputation, and experience;
    (iii) The time spent and legal services furnished were excessive 
considering the nature of the action or proceeding; or
    (iv) The attorney representing the parent did not provide to the 
school district the appropriate information in the due process complaint 
in accordance with Sec. 300.507(c).
    (5) Exception to reduction in amount of attorneys' fees. The 
provisions of paragraph (c)(4) of this section do not apply in any 
action or proceeding if the court finds that the State or local agency 
unreasonably protracted the final resolution of the action or proceeding 
or there was a violation of section 615 of the Act.

(Authority: 20 U.S.C. 1415(i)(3)(B)-(G))



Sec. 300.514  Child's status during proceedings.

    (a) Except as provided in Sec. 300.526, during the pendency of any 
administrative or judicial proceeding regarding a complaint under 
Sec. 300.507, unless the State or local agency and the parents of the 
child agree otherwise, the child involved in the complaint must remain 
in his or her current educational placement.
    (b) If the complaint involves an application for initial admission 
to public school, the child, with the consent of the parents, must be 
placed in the public school until the completion of all the proceedings.
    (c) If the decision of a hearing officer in a due process hearing 
conducted by the SEA or a State review official in an administrative 
appeal agrees with the child's parents that a change of placement is 
appropriate, that placement must be treated as an agreement between the 
State or local agency and the parents for purposes of paragraph (a) of 
this section.

(Authority: 20 U.S.C. 1415(j))



Sec. 300.515  Surrogate parents.

    (a) General. Each public agency shall ensure that the rights of a 
child are protected if--
    (1) No parent (as defined in Sec. 300.20) can be identified;
    (2) The public agency, after reasonable efforts, cannot discover the 
whereabouts of a parent; or
    (3) The child is a ward of the State under the laws of that State.
    (b) Duty of public agency. The duty of a public agency under 
paragraph (a) of this section includes the assignment of an individual 
to act as a surrogate for the parents. This must include a method--
    (1) For determining whether a child needs a surrogate parent; and
    (2) For assigning a surrogate parent to the child.
    (c) Criteria for selection of surrogates. (1) The public agency may 
select a surrogate parent in any way permitted under State law.

[[Page 68]]

    (2) Except as provided in paragraph (c)(3) of this section, public 
agencies shall ensure that a person selected as a surrogate--
    (i) Is not an employee of the SEA, the LEA, or any other agency that 
is involved in the education or care of the child;
    (ii) Has no interest that conflicts with the interest of the child 
he or she represents; and
    (iii) Has knowledge and skills that ensure adequate representation 
of the child.
    (3) A public agency may select as a surrogate a person who is an 
employee of a nonpublic agency that only provides non-educational care 
for the child and who meets the standards in paragraphs (c)(2)(ii) and 
(iii) of this section.
    (d) Non-employee requirement; compensation. A person who otherwise 
qualifies to be a surrogate parent under paragraph (c) of this section 
is not an employee of the agency solely because he or she is paid by the 
agency to serve as a surrogate parent.
    (e) Responsibilities. The surrogate parent may represent the child 
in all matters relating to--
    (1) The identification, evaluation, and educational placement of the 
child; and
    (2) The provision of FAPE to the child.

(Authority: 20 U.S.C. 1415(b)(2))



Sec. 300.517  Transfer of parental rights at age of majority.

    (a) General. A State may provide that, when a student with a 
disability reaches the age of majority under State law that applies to 
all students (except for a student with a disability who has been 
determined to be incompetent under State law)--
    (1)(i) The public agency shall provide any notice required by this 
part to both the individual and the parents; and
    (ii) All other rights accorded to parents under Part B of the Act 
transfer to the student; and
    (2) All rights accorded to parents under Part B of the Act transfer 
to students who are incarcerated in an adult or juvenile, State or local 
correctional institution.
    (3) Whenever a State transfers rights under this part pursuant to 
paragraph (a)(1) or (a)(2) of this section, the agency shall notify the 
individual and the parents of the transfer of rights.
    (b) Special rule. If, under State law, a State has a mechanism to 
determine that a student with a disability, who has reached the age of 
majority under State law that applies to all children and has not been 
determined incompetent under State law, does not have the ability to 
provide informed consent with respect to his or her educational program, 
the State shall establish procedures for appointing the parent, or, if 
the parent is not available another appropriate individual, to represent 
the educational interests of the student throughout the student's 
eligibility under Part B of the Act.

(Authority: 20 U.S.C. 1415(m))

                          Discipline Procedures



Sec. 300.519  Change of placement for disciplinary removals.

    For purposes of removals of a child with a disability from the 
child's current educational placement under Secs. 300.520-300.529, a 
change of placement occurs if--
    (a) The removal is for more than 10 consecutive school days; or
    (b) The child is subjected to a series of removals that constitute a 
pattern because they cumulate to more than 10 school days in a school 
year, and because of factors such as the length of each removal, the 
total amount of time the child is removed, and the proximity of the 
removals to one another.

(Authority: 20 U.S.C. 1415(k))


Sec. 300.520  Authority of school personnel.

    (a) School personnel may order--
    (1)(i) To the extent removal would be applied to children without 
disabilities, the removal of a child with a disability from the child's 
current placement for not more than 10 consecutive school days for any 
violation of school rules, and additional removals of not more than 10 
consecutive school days in that same school year for separate incidents 
of misconduct (as long as

[[Page 69]]

those removals do not constitute a change of placement under 
Sec. 300.519(b));
    (ii) After a child with a disability has been removed from his or 
her current placement for more than 10 school days in the same school 
year, during any subsequent days of removal the public agency must 
provide services to the extent required under Sec. 300.121(d); and
    (2) A change in placement of a child with a disability to an 
appropriate interim alternative educational setting for the same amount 
of time that a child without a disability would be subject to 
discipline, but for not more than 45 days, if--
    (i) The child carries a weapon to school or to a school function 
under the jurisdiction of a State or a local educational agency; or
    (ii) The child knowingly possesses or uses illegal drugs or sells or 
solicits the sale of a controlled substance while at school or a school 
function under the jurisdiction of a State or local educational agency.
    (b)(1) Either before or not later than 10 business days after either 
first removing the child for more than 10 school days in a school year 
or commencing a removal that constitutes a change of placement under 
Sec. 300.519, including the action described in paragraph (a)(2) of this 
section--
    (i) If the LEA did not conduct a functional behavioral assessment 
and implement a behavioral intervention plan for the child before the 
behavior that resulted in the removal described in paragraph (a) of this 
section, the agency shall convene an IEP meeting to develop an 
assessment plan.
    (ii) If the child already has a behavioral intervention plan, the 
IEP team shall meet to review the plan and its implementation, and, 
modify the plan and its implementation as necessary, to address the 
behavior.
    (2) As soon as practicable after developing the plan described in 
paragraph (b)(1)(i) of this section, and completing the assessments 
required by the plan, the LEA shall convene an IEP meeting to develop 
appropriate behavioral interventions to address that behavior and shall 
implement those interventions.
    (c)(1) If subsequently, a child with a disability who has a 
behavioral intervention plan and who has been removed from the child's 
current educational placement for more than 10 school days in a school 
year is subjected to a removal that does not constitute a change of 
placement under Sec. 300.519, the IEP team members shall review the 
behavioral intervention plan and its implementation to determine if 
modifications are necessary.
    (2) If one or more of the team members believe that modifications 
are needed, the team shall meet to modify the plan and its 
implementation, to the extent the team determines necessary.
    (d) For purposes of this section, the following definitions apply:
    (1) Controlled substance means a drug or other substance identified 
under schedules I, II, III, IV, or V in section 202(c) of the Controlled 
Substances Act (21 U.S.C. 812(c)).
    (2) Illegal drug--
    (i) Means a controlled substance; but
    (ii) Does not include a substance that is legally possessed or used 
under the supervision of a licensed health-care professional or that is 
legally possessed or used under any other authority under that Act or 
under any other provision of Federal law.
    (3) Weapon has the meaning given the term ``dangerous weapon'' under 
paragraph (2) of the first subsection (g) of section 930 of title 18, 
United States Code.

(Authority: 20 U.S.C. 1415(k)(1), (10))



Sec. 300.521  Authority of hearing officer.

    A hearing officer under section 615 of the Act may order a change in 
the placement of a child with a disability to an appropriate interim 
alternative educational setting for not more than 45 days if the hearing 
officer, in an expedited due process hearing--
    (a) Determines that the public agency has demonstrated by 
substantial evidence that maintaining the current placement of the child 
is substantially likely to result in injury to the child or to others;
    (b) Considers the appropriateness of the child's current placement;
    (c) Considers whether the public agency has made reasonable efforts 
to minimize the risk of harm in the child's current placement, including

[[Page 70]]

the use of supplementary aids and services; and
    (d) Determines that the interim alternative educational setting that 
is proposed by school personnel who have consulted with the child's 
special education teacher, meets the requirements of Sec. 300.522(b).
    (e) As used in this section, the term substantial evidence means 
beyond a preponderance of the evidence.

(Authority: 20 U.S.C. 1415(k)(2), (10))



Sec. 300.521  Authority of hearing officer.

    A hearing officer under section 615 of the Act may order a change in 
the placement of a child with a disability to an appropriate interim 
alternative educational setting for not more than 45 days if the hearing 
officer, in an expedited due process hearing--
    (a) Determines that the public agency has demonstrated by 
substantial evidence that maintaining the current placement of the child 
is substantially likely to result in injury to the child or to others;
    (b) Considers the appropriateness of the child's current placement;
    (c) Considers whether the public agency has made reasonable efforts 
to minimize the risk of harm in the child's current placement, including

[[Page 70]]

the use of supplementary aids and services; and
    (d) Determines that the interim alternative educational setting that 
is proposed by school personnel who have consulted with the child's 
special education teacher, meets the requirements of Sec. 300.522(b).
    (e) As used in this section, the term substantial evidence means 
beyond a preponderance of the evidence.

(Authority: 20 U.S.C. 1415(k)(2), (10))



Sec. 300.521  Authority of hearing officer.

    A hearing officer under section 615 of the Act may order a change in 
the placement of a child with a disability to an appropriate interim 
alternative educational setting for not more than 45 days if the hearing 
officer, in an expedited due process hearing--
    (a) Determines that the public agency has demonstrated by 
substantial evidence that maintaining the current placement of the child 
is substantially likely to result in injury to the child or to others;
    (b) Considers the appropriateness of the child's current placement;
    (c) Considers whether the public agency has made reasonable efforts 
to minimize the risk of harm in the child's current placement, including

[[Page 70]]

the use of supplementary aids and services; and
    (d) Determines that the interim alternative educational setting that 
is proposed by school personnel who have consulted with the child's 
special education teacher, meets the requirements of Sec. 300.522(b).
    (e) As used in this section, the term substantial evidence means 
beyond a preponderance of the evidence.

(Authority: 20 U.S.C. 1415(k)(2), (10))



Sec. 300.522  Determination of setting.

    (a) General. The interim alternative educational setting referred to 
in Sec. 300.520(a)(2) must be determined by the IEP team.
    (b) Additional requirements. Any interim alternative educational 
setting in which a child is placed under Secs. 300.520(a)(2) or 300.521 
must--
    (1) Be selected so as to enable the child to continue to progress in 
the general curriculum, although in another setting, and to continue to 
receive those services and modifications, including those described in 
the child's current IEP, that will enable the child to meet the goals 
set out in that IEP; and
    (2) Include services and modifications to address the behavior 
described in Secs. 300.520(a)(2) or 300.521, that are designed to 
prevent the behavior from recurring.

(Authority: 20 U.S.C. 1415(k)(3))



Sec. 300.523  Manifestation determination review.

    (a) General. If an action is contemplated regarding behavior 
described in Secs. 300.520(a)(2) or 300.521, or involving a removal that 
constitutes a change of placement under Sec. 300.519 for a child with a 
disability who has engaged in other behavior that violated any rule or 
code of conduct of the LEA that applies to all children--
    (1) Not later than the date on which the decision to take that 
action is made, the parents must be notified of that decision and 
provided the procedural safeguards notice described in Sec. 300.504; and
    (2) Immediately, if possible, but in no case later than 10 school 
days after the date on which the decision to take that action is made, a 
review must be conducted of the relationship between the child's 
disability and the behavior subject to the disciplinary action.
    (b) Individuals to carry out review. A review described in paragraph 
(a) of this section must be conducted by the IEP team and other 
qualified personnel in a meeting.
    (c) Conduct of review. In carrying out a review described in 
paragraph (a) of this section, the IEP team and other qualified 
personnel may determine that the behavior of the child was not a 
manifestation of the child's disability only if the IEP team and other 
qualified personnel--
    (1) First consider, in terms of the behavior subject to disciplinary 
action, all relevant information, including --
    (i) Evaluation and diagnostic results, including the results or 
other relevant information supplied by the parents of the child;
    (ii) Observations of the child; and
    (iii) The child's IEP and placement; and
    (2) Then determine that--
    (i) In relationship to the behavior subject to disciplinary action, 
the child's IEP and placement were appropriate and the special education 
services, supplementary aids and services, and behavior intervention 
strategies were provided consistent with the child's IEP and placement;
    (ii) The child's disability did not impair the ability of the child 
to understand the impact and consequences of the behavior subject to 
disciplinary action; and
    (iii) The child's disability did not impair the ability of the child 
to control the behavior subject to disciplinary action.
    (d) Decision. If the IEP team and other qualified personnel 
determine that any of the standards in paragraph (c)(2) of this section 
were not met, the behavior must be considered a manifestation of the 
child's disability.
    (e) Meeting. The review described in paragraph (a) of this section 
may be conducted at the same IEP meeting that is convened under 
Sec. 300.520(b).
    (f) Deficiencies in IEP or placement. If, in the review in 
paragraphs (b) and (c) of this section, a public agency identifies 
deficiencies in the child's IEP or

[[Page 71]]

placement or in their implementation, it must take immediate steps to 
remedy those deficiencies.

(Authority: 20 U.S.C. 1415(k)(4))



Sec. 300.524  Determination that behavior was not manifestation of 
disability.

    (a) General. If the result of the review described in Sec. 300.523 
is a determination, consistent with Sec. 300.523(d), that the behavior 
of the child with a disability was not a manifestation of the child's 
disability, the relevant disciplinary procedures applicable to children 
without disabilities may be applied to the child in the same manner in 
which they would be applied to children without disabilities, except as 
provided in Sec. 300.121(d).
    (b) Additional requirement. If the public agency initiates 
disciplinary procedures applicable to all children, the agency shall 
ensure that the special education and disciplinary records of the child 
with a disability are transmitted for consideration by the person or 
persons making the final determination regarding the disciplinary 
action.
    (c) Child's status during due process proceedings. Except as 
provided in Sec. 300.526, Sec. 300.514 applies if a parent requests a 
hearing to challenge a determination, made through the review described 
in Sec. 300.523, that the behavior of the child was not a manifestation 
of the child's disability.

(Authority: 20 U.S.C. 1415(k)(5))



Sec. 300.525  Parent appeal.

    (a) General. (1) If the child's parent disagrees with a 
determination that the child's behavior was not a manifestation of the 
child's disability or with any decision regarding placement under 
Secs. 300.520-300.528, the parent may request a hearing.
    (2) The State or local educational agency shall arrange for an 
expedited hearing in any case described in paragraph (a)(1) of this 
section if a hearing is requested by a parent.
    (b) Review of decision. (1) In reviewing a decision with respect to 
the manifestation determination, the hearing officer shall determine 
whether the public agency has demonstrated that the child's behavior was 
not a manifestation of the child's disability consistent with the 
requirements of Sec. 300.523(d).
    (2) In reviewing a decision under Sec. 300.520(a)(2) to place the 
child in an interim alternative educational setting, the hearing officer 
shall apply the standards in Sec. 300.521.

(Authority: 20 U.S.C. 1415(k)(6))



 Sec. 300.526 Placement during appeals.

    (a) General. If a parent requests a hearing or an appeal regarding a 
disciplinary action described in Sec. 300.520(a)(2) or 300.521 to 
challenge the interim alternative educational setting or the 
manifestation determination, the child must remain in the interim 
alternative educational setting pending the decision of the hearing 
officer or until the expiration of the time period provided for in 
Sec. 300.520(a)(2) or 300.521, whichever occurs first, unless the parent 
and the State agency or local educational agency agree otherwise.
    (b) Current placement. If a child is placed in an interim 
alternative educational setting pursuant to Sec. 300.520(a)(2) or 
300.521 and school personnel propose to change the child's placement 
after expiration of the interim alternative placement, during the 
pendency of any proceeding to challenge the proposed change in placement 
the child must remain in the current placement (the child's placement 
prior to the interim alternative educational setting), except as 
provided in paragraph (c) of this section.
    (c) Expedited hearing. (1) If school personnel maintain that it is 
dangerous for the child to be in the current placement (placement prior 
to removal to the interim alternative education setting) during the 
pendency of the due process proceedings, the LEA may request an 
expedited due process hearing.
    (2) In determining whether the child may be placed in the 
alternative educational setting or in another appropriate placement 
ordered by the hearing officer, the hearing officer shall apply the 
standards in Sec. 300.521.
    (3) A placement ordered pursuant to paragraph (c)(2) of this section 
may not be longer than 45 days.

[[Page 72]]

    (4) The procedure in paragraph (c) of this section may be repeated, 
as necessary.

(Authority: 20 U.S.C. 1415(k)(7))



Sec. 300.527  Protections for children not yet 
eligible for special education 
and related services.

    (a) General. A child who has not been determined to be eligible for 
special education and related services under this part and who has 
engaged in behavior that violated any rule or code of conduct of the 
local educational agency, including any behavior described in 
Secs. 300.520 or 300.521, may assert any of the protections provided for 
in this part if the LEA had knowledge (as determined in accordance with 
paragraph (b) of this section) that the child was a child with a 
disability before the behavior that precipitated the disciplinary action 
occurred.
    (b) Basis of knowledge. An LEA must be deemed to have knowledge that 
a child is a child with a disability if--
    (1) The parent of the child has expressed concern in writing (or 
orally if the parent does not know how to write or has a disability that 
prevents a written statement) to personnel of the appropriate 
educational agency that the child is in need of special education and 
related services;
    (2) The behavior or performance of the child demonstrates the need 
for these services, in accordance with Sec. 300.7;
    (3) The parent of the child has requested an evaluation of the child 
pursuant to Secs. 300.530-300.536; or
    (4) The teacher of the child, or other personnel of the local 
educational agency, has expressed concern about the behavior or 
performance of the child to the director of special education of the 
agency or to other personnel in accordance with the agency's established 
child find or special education referral system.
    (c) Exception. A public agency would not be deemed to have knowledge 
under paragraph (b) of this section if, as a result of receiving the 
information specified in that paragraph, the agency--
    (1) Either--
    (i) Conducted an evaluation under Secs. 300.530-300.536, and 
determined that the child was not a child with a disability under this 
part; or
    (ii) Determined that an evaluation was not necessary; and
    (2) Provided notice to the child's parents of its determination 
under paragraph (c)(1) of this section, consistent with Sec. 300.503.
    (d) Conditions that apply if no basis of knowledge. (1) General. If 
an LEA does not have knowledge that a child is a child with a disability 
(in accordance with paragraphs (b) and (c) of this section) prior to 
taking disciplinary measures against the child, the child may be 
subjected to the same disciplinary measures as measures applied to 
children without disabilities who engaged in comparable behaviors 
consistent with paragraph (d)(2) of this section.
    (2) Limitations. (i) If a request is made for an evaluation of a 
child during the time period in which the child is subjected to 
disciplinary measures under Sec. 300.520 or 300.521, the evaluation must 
be conducted in an expedited manner.
    (ii) Until the evaluation is completed, the child remains in the 
educational placement determined by school authorities, which can 
include suspension or expulsion without educational services.
    (iii) If the child is determined to be a child with a disability, 
taking into consideration information from the evaluation conducted by 
the agency and information provided by the parents, the agency shall 
provide special education and related services in accordance with the 
provisions of this part, including the requirements of Secs. 300.520-
300.529 and section 612(a)(1)(A) of the Act.

(Authority: 20 U.S.C. 1415(k)(8))



Sec. 300.528  Expedited due process hearings.

    (a) Expedited due process hearings under Secs. 300.521-300.526 
must--
    (1) Meet the requirements of Sec. 300.509, except that a State may 
provide that the time periods identified in Secs. 300.509(a)(3) and 
Sec. 300.509(b) for purposes of expedited due process hearings under 
Secs. 300.521-300.526 are not less than two business days; and
    (2) Be conducted by a due process hearing officer who satisfies the 
requirements of Sec. 300.508.

[[Page 73]]

    (b)(1) Each State shall establish a timeline for expedited due 
process hearings that results in a written decision being mailed to the 
parties within 45 days of the public agency's receipt of the request for 
the hearing, without exceptions or extensions.
    (2) The timeline established under paragraph (b)(1) of this section 
must be the same for hearings requested by parents or public agencies.
    (c) A State may establish different procedural rules for expedited 
hearings under Secs. 300.521-300.526 than it has established for due 
process hearings under Sec. 300.507.
    (d) The decisions on expedited due process hearings are appealable 
consistent with Sec. 300.510.

(Authority: 20 U.S.C. 1415(k)(2), (6), (7))



Sec. 300.529  Referral to and action by law 
enforcement and judicial authorities.

    (a) Nothing in this part prohibits an agency from reporting a crime 
committed by a child with a disability to appropriate authorities or to 
prevent State law enforcement and judicial authorities from exercising 
their responsibilities with regard to the application of Federal and 
State law to crimes committed by a child with a disability.
    (b)(1) An agency reporting a crime committed by a child with a 
disability shall ensure that copies of the special education and 
disciplinary records of the child are transmitted for consideration by 
the appropriate authorities to whom it reports the crime.
    (2) An agency reporting a crime under this section may transmit 
copies of the child's special education and disciplinary records only to 
the extent that the transmission is permitted by the Family Educational 
Rights and Privacy Act.

(Authority: 20 U.S.C. 1415(k)(9))

       Procedures for Evaluation and Determination of Eligibility



Sec. 300.530  General.

    Each SEA shall ensure that each public agency establishes and 
implements procedures that meet the requirements of Secs. 300.531-
300.536.

(Authority: 20 U.S.C. 1414(b)(3); 1412(a)(7))



Sec. 300.531  Initial evaluation.

    Each public agency shall conduct a full and individual initial 
evaluation, in accordance with Secs. 300.532 and 300.533, before the 
initial provision of special education and related services to a child 
with a disability under Part B of the Act.

(Authority: 20 U.S.C. 1414(a)(1))



Sec. 300.532  Evaluation procedures.

    Each public agency shall ensure, at a minimum, that the following 
requirements are met:
    (a)(1) Tests and other evaluation materials used to assess a child 
under Part B of the Act--
    (i) Are selected and administered so as not to be discriminatory on 
a racial or cultural basis; and
    (ii) Are provided and administered in the child's native language or 
other mode of communication, unless it is clearly not feasible to do so; 
and
    (2) Materials and procedures used to assess a child with limited 
English proficiency are selected and administered to ensure that they 
measure the extent to which the child has a disability and needs special 
education, rather than measuring the child's English language skills.
    (b) A variety of assessment tools and strategies are used to gather 
relevant functional and developmental information about the child, 
including information provided by the parent, and information related to 
enabling the child to be involved in and progress in the general 
curriculum (or for a preschool child, to participate in appropriate 
activities), that may assist in determining--
    (1) Whether the child is a child with a disability under Sec. 300.7; 
and
    (2) The content of the child's IEP.
    (c)(1) Any standardized tests that are given to a child--
    (i) Have been validated for the specific purpose for which they are 
used; and
    (ii) Are administered by trained and knowledgeable personnel in 
accordance with any instructions provided by the producer of the tests.
    (2) If an assessment is not conducted under standard conditions, a 
description of the extent to which it varied

[[Page 74]]

from standard conditions (e.g., the qualifications of the person 
administering the test, or the method of test administration) must be 
included in the evaluation report.
    (d) Tests and other evaluation materials include those tailored to 
assess specific areas of educational need and not merely those that are 
designed to provide a single general intelligence quotient.
    (e) Tests are selected and administered so as best to ensure that if 
a test is administered to a child with impaired sensory, manual, or 
speaking skills, the test results accurately reflect the child's 
aptitude or achievement level or whatever other factors the test 
purports to measure, rather than reflecting the child's impaired 
sensory, manual, or speaking skills (unless those skills are the factors 
that the test purports to measure).
    (f) No single procedure is used as the sole criterion for 
determining whether a child is a child with a disability and for 
determining an appropriate educational program for the child.
    (g) The child is assessed in all areas related to the suspected 
disability, including, if appropriate, health, vision, hearing, social 
and emotional status, general intelligence, academic performance, 
communicative status, and motor abilities.
    (h) In evaluating each child with a disability under Secs. 300.531-
300.536, the evaluation is sufficiently comprehensive to identify all of 
the child's special education and related services needs, whether or not 
commonly linked to the disability category in which the child has been 
classified.
    (i) The public agency uses technically sound instruments that may 
assess the relative contribution of cognitive and behavioral factors, in 
addition to physical or developmental factors.
    (j) The public agency uses assessment tools and strategies that 
provide relevant information that directly assists persons in 
determining the educational needs of the child.

(Authority: 20 U.S.C. 1412(a)(6)(B), 1414(b)(2) and (3))


§300.533 Determination of needed evaluation data.

(a) Review of existing evaluation data. As part of an initial evaluation 
(if appropriate) and as part of any reevaluation under Part B of the Act, 
a group that includes the individuals described in §300.344,
and other qualified professionals, as appropriate, shall -

    (1) Review existing evaluation data on the child, including—

    (i) Evaluations and information provided by the parents of the child;
    (ii) Current classroom-based assessments and observations; and

    (iii) Observations by teachers and related services providers; and

(2) On the basis of that review, and input from the child's parents, 
identify what additional data, if any, are needed to determine -

    (i) Whether the child has a particular category of disability, 
	as described in §300.7, or, in case of a reevaluation of a 
	child, whether the child continues to have such a disability; 

    (ii) The present levels of performance and educational needs 
	of the child; 

    (iii) Whether the child needs special education and related services, 
	or in the case of a reevaluation of a child, whether the child 
	continues to need special education and related services; and 

    (iv) Whether any additions or 
	modifications to the special education and related services are 
	needed to enable the child to meet the measurable annual goals
	set out in the IEP of the child and to participate, as appropriate, in 
	the general curriculum.

    (b) Conduct of review. The group described in paragraph (a) of 
	this section may conduct its review without a meeting.

    (c) Need for additional data. The public agency shall administer 
	tests and other evaluation materials as may be needed to produce 
	the data identified under paragraph 
	
	(a) of this section.

    (d) Requirements if additional data are not needed.

    (1) If the determination under paragraph (a) of this section is that 
	no additional data are needed to determine whether the child 
	continues to be a child with a disability, the public agency 
	shall notify the child's parents—

    (i) Of that determination and the reasons for it; and 

    (ii) Of the right of the parents to request an assessment to 
	determine whether, for purposes of services under this part, the 
	child continues to be a child with a disability.

    (2) The public agency is not required to conduct the assessment 
	described in paragraph (d)(1)(ii) of this section unless 
	requested to do so by the child's parents.

(Authority: 20 U.S.C. 1414(c)(1), (2) and (4))





Sec. 300.534  Determination of eligibility

    (a) Upon completing the administration of tests and other evaluation 
materials--
    (1) A group of qualified professionals and the parent of the child 
must determine whether the child is a child with a disability, as 
defined in Sec. 300.7; and
    (2) The public agency must provide a copy of the evaluation report 
and the documentation of determination of eligibility to the parent.
    (b) A child may not be determined to be eligible under this part 
if--
    (1) The determinant factor for that eligibility determination is--
    (i) Lack of instruction in reading or math; or
    (ii) Limited English proficiency; and
    (2) The child does not otherwise meet the eligibility criteria under 
Sec. 300.7(a).
    (c)(1) A public agency must evaluate a child with a disability in 
accordance with Secs. 300.532 and 300.533 before determining that the 
child is no longer a child with a disability.
    (2) The evaluation described in paragraph (c)(1) of this section is 
not required before the termination of a student's eligibility under 
Part B of the Act due to graduation with a regular high school diploma, 
or exceeding the age eligibility for FAPE under State law.

(Authority: 20 U.S.C. 1414(b)(4) and (5), (c)(5))



Sec. 300.535  Procedures for determining eligibility and placement.

    (a) In interpreting evaluation data for the purpose of determining 
if a child is a child with a disability under Sec. 300.7, and the 
educational needs of the child, each public agency shall--
    (1) Draw upon information from a variety of sources, including 
aptitude and achievement tests, parent input, teacher recommendations, 
physical condition, social or cultural background, and adaptive 
behavior; and
    (2) Ensure that information obtained from all of these sources is 
documented and carefully considered.
    (b) If a determination is made that a child has a disability and 
needs special education and related services, an IEP must be developed 
for the child in accordance with Secs. 300.340-300.350.

(Authority: 20 U.S.C. 1412(a)(6), 1414(b)(4))



Sec. 300.536  Reevaluation.

    Each public agency shall ensure--
    (a) That the IEP of each child with a disability is reviewed in 
accordance with Secs. 300.340-300.350; and
    (b) That a reevaluation of each child, in accordance with 
Secs. 300.532-300.535, is conducted if conditions warrant a 
reevaluation, or if the child's parent or teacher requests a 
reevaluation, but at least once every three years.

(Authority: 20 U.S.C. 1414(a)(2))

  Additional Procedures for Evaluating Children With Specific Learning 
                              Disabilities



Sec. 300.540  Additional team members.

    The determination of whether a child suspected of having a specific 
learning disability is a child with a disability as defined in 
Sec. 300.7, must be made by the child's parents and a team of qualified 
professionals which must include--
    (a)(1) The child's regular teacher; or
    (2) If the child does not have a regular teacher, a regular 
classroom teacher qualified to teach a child of his or her age; or
    (3) For a child of less than school age, an individual qualified by 
the SEA to teach a child of his or her age; and
    (b) At least one person qualified to conduct individual diagnostic 
examinations of children, such as a school psychologist, speech-language 
pathologist, or remedial reading teacher.

(Authority: Sec. 5(b), Pub. L. 94-142)

[[Page 76]]



Sec. 300.541  Criteria for determining the existence of a 
specific learning disability.

    (a) A team may determine that a child has a specific learning 
disability if--
    (1) The child does not achieve commensurate with his or her age and 
ability levels in one or more of the areas listed in paragraph (a)(2) of 
this section, if provided with learning experiences appropriate for the 
child's age and ability levels; and
    (2) The team finds that a child has a severe discrepancy between 
achievement and intellectual ability in one or more of the following 
areas:
    (i) Oral expression.
    (ii) Listening comprehension.
    (iii) Written expression.
    (iv) Basic reading skill.
    (v) Reading comprehension.
    (vi) Mathematics calculation.
    (vii) Mathematics reasoning.
    (b) The team may not identify a child as having a specific learning 
disability if the severe discrepancy between ability and achievement is 
primarily the result of--
    (1) A visual, hearing, or motor impairment;
    (2) Mental retardation;
    (3) Emotional disturbance; or
    (4) Environmental, cultural or economic disadvantage.

(Authority: Sec. 5(b), Pub. L. 94-142)



Sec. 300.542  Observation.

    (a) At least one team member other than the child's regular teacher 
shall observe the child's academic performance in the regular classroom 
setting.
    (b) In the case of a child of less than school age or out of school, 
a team member shall observe the child in an environment appropriate for 
a child of that age.

(Authority: Sec. 5(b), Pub. L. 94-142)


Sec. 300.543  Written report.

    (a) For a child suspected of having a specific learning disability, 
the documentation of the team's determination of eligibility, as 
required by Sec. 300.534(a)(2), must include a statement of--
    (1) Whether the child has a specific learning disability;
    (2) The basis for making the determination;
    (3) The relevant behavior noted during the observation of the child;
    (4) The relationship of that behavior to the child's academic 
functioning;
    (5) The educationally relevant medical findings, if any;
    (6) Whether there is a severe discrepancy between achievement and 
ability that is not correctable without special education and related 
services; and
    (7) The determination of the team concerning the effects of 
environmental, cultural, or economic disadvantage.
    (b) Each team member shall certify in writing whether the report 
reflects his or her conclusion. If it does not reflect his or her 
conclusion, the team member must submit a separate statement presenting 
his or her conclusions.

(Authority: Sec. 5(b), Pub. L. 94-142))

                   Least Restrictive Environment (LRE)



 Sec. 300.550 General LRE requirements.

    (a) Except as provided in Sec. 300.311(b) and (c), a State shall 
demonstrate to the satisfaction of the Secretary that the State has in 
effect policies and procedures to ensure that it meets the requirements 
of Secs. 300.550-300.556.
    (b) Each public agency shall ensure--
    (1) 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
    (2) 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.

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



Sec. 300.551  Continuum of alternative placements.

    (a) Each public agency shall ensure that a continuum of alternative 
placements is available to meet the needs of children with disabilities 
for special education and related services.

[[Page 77]]

    (b) The continuum required in paragraph (a) of this section must--
    (1) Include the alternative placements listed in the definition of 
special education under Sec. 300.26 (instruction in regular classes, 
special classes, special schools, home instruction, and instruction in 
hospitals and institutions); and
    (2) Make provision for supplementary services (such as resource room 
or itinerant instruction) to be provided in conjunction with regular 
class placement.

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




Sec. 300.552  Placements.

    In determining the educational placement of a child with a 
disability, including a preschool child with a disability, each public 
agency shall ensure that--
    (a) The placement decision--
   
   (1)Is made by a group of persons, including the parents, and other 
persons knowledgeable about the child, the meaning of the evaluation 
data, and the placement options; and
    (2) Is made in conformity with the LRE provisions of this subpart, 
including Secs. 300.550-300.554;
    (b) The child's placement--
    (1) Is determined at least annually;
    (2) Is based on the child's IEP; and
    (3) Is as close as possible to the child's home;
    (c) Unless the IEP of a child with a disability requires some other 
arrangement, the child is educated in the school that he or she would 
attend if nondisabled;
    (d) In selecting the LRE, consideration is given to any potential 
harmful effect on the child or on the quality of services that he or she 
needs; and
    (e) A child with a disability is not removed from education in age-
appropriate regular classrooms solely because of needed modifications in 
the general curriculum.

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


Sec. 300.553  Nonacademic settings.

    In providing or arranging for the provision of nonacademic and 
extracurricular services and activities, including meals, recess 
periods, and the services and activities set forth in Sec. 300.306, each 
public agency shall ensure that each child with a disability 
participates with nondisabled children in those services and activities 
to the maximum extent appropriate to the needs of that child.

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


Sec. 300.554  Children in public or private institutions.

    Except as provided in Sec. 300.600(d), an SEA must ensure that 
Sec. 300.550 is effectively implemented, including, if necessary, making 
arrangements with public and private institutions (such as a memorandum 
of agreement or special implementation procedures).

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


Sec. 300.555  Technical assistance and training activities.

    Each SEA shall carry out activities to ensure that teachers and 
administrators in all public agencies--
    (a) Are fully informed about their responsibilities for implementing 
Sec. 300.550; and
    (b) Are provided with technical assistance and training necessary to 
assist them in this effort.

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


Sec. 300.556  Monitoring activities.

    (a) The SEA shall carry out activities to ensure that Sec. 300.550 
is implemented by each public agency.
    (b) If there is evidence that a public agency makes placements that 
are inconsistent with Sec. 300.550, the SEA shall--
    (1) Review the public agency's justification for its actions; and
    (2) Assist in planning and implementing any necessary corrective 
action.

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

                     Confidentiality of Information



Sec. 300.560   Definitions.

    As used in Secs. 300.560-300.577--
    (a) Destruction means physical destruction or removal of personal 
identifiers from information so that the information is no longer 
personally identifiable.
    (b) Education records means the type of records covered under the 
definition of ``education records'' in 34 CFR part

[[Page 78]]

99 (the regulations implementing the Family Educational Rights and 
Privacy Act of 1974).
    (c) Participating agency means any agency or institution that 
collects, maintains, or uses personally identifiable information, or 
from which information is obtained, under Part B of the Act.

(Authority: 20 U.S.C. 1221e-3, 1412(a)(8), 1417(c))



Sec. 300.561  Notice to parents.

    (a) The SEA shall give notice that is adequate to fully inform 
parents about the requirements of Sec. 300.127, including--
    (1) A description of the extent that the notice is given in the 
native languages of the various population groups in the State;
    (2) A description of the children on whom personally identifiable 
information is maintained, the types of information sought, the methods 
the State intends to use in gathering the information (including the 
sources from whom information is gathered), and the uses to be made of 
the information;
    (3) A summary of the policies and procedures that participating 
agencies must follow regarding storage, disclosure to third parties, 
retention, and destruction of personally identifiable information; and
    (4) A description of all of the rights of parents and children 
regarding this information, including the rights under the Family 
Educational Rights and Privacy Act of 1974 and implementing regulations 
in 34 CFR part 99.
    (b) Before any major identification, location, or evaluation 
activity, the notice must be published or announced in newspapers or 
other media, or both, with circulation adequate to notify parents 
throughout the State of the activity.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))



Sec. 300.562  Access rights.

    (a) Each participating agency shall permit parents to inspect and 
review any education records relating to their children that are 
collected, maintained, or used by the agency under this part. The agency 
shall comply with a request without unnecessary delay and before any 
meeting regarding an IEP, or any hearing pursuant to Secs. 300.507 and 
300.521-300.528, and in no case more than 45 days after the request has 
been made.
    (b) The right to inspect and review education records under this 
section includes--
    (1) The right to a response from the participating agency to 
reasonable requests for explanations and interpretations of the records;
    (2) The right to request that the agency provide copies of the 
records containing the information if failure to provide those copies 
would effectively prevent the parent from exercising the right to 
inspect and review the records; and
    (3) The right to have a representative of the parent inspect and 
review the records.
    (c) An agency may presume that the parent has authority to inspect 
and review records relating to his or her child unless the agency has 
been advised that the parent does not have the authority under 
applicable State law governing such matters as guardianship, separation, 
and divorce.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))



Sec. 300.563  Record of access.

    Each participating agency shall keep a record of parties obtaining 
access to education records collected, maintained, or used under Part B 
of the Act (except access by parents and authorized employees of the 
participating agency), including the name of the party, the date access 
was given, and the purpose for which the party is authorized to use the 
records.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))


Sec. 300.564  Records on more than one child.

    If any education record includes information on more than one child, 
the parents of those children have the right to inspect and review only 
the information relating to their child or to be informed of that 
specific information.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))

[[Page 79]]


Sec. 300.565  List of types and locations of information.

    Each participating agency shall provide parents on request a list of 
the types and locations of education records collected, maintained, or 
used by the agency.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))


Sec. 300.566  Fees.

    (a) Each participating agency may charge a fee for copies of records 
that are made for parents under this part if the fee does not 
effectively prevent the parents from exercising their right to inspect 
and review those records.
    (b) A participating agency may not charge a fee to search for or to 
retrieve information under this part.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))


Sec. 300.567  Amendment of records at parent's request.

    (a) A parent who believes that information in the education records 
collected, maintained, or used under this part is inaccurate or 
misleading or violates the privacy or other rights of the child may 
request the participating agency that maintains the information to amend 
the information.
    (b) The agency shall decide whether to amend the information in 
accordance with the request within a reasonable period of time of 
receipt of the request.
    (c) If the agency decides to refuse to amend the information in 
accordance with the request, it shall inform the parent of the refusal 
and advise the parent of the right to a hearing under Sec. 300.568.

(Authority: 20 U.S.C. 1412(a)(8); 1417(c))



Sec. 300.568  Opportunity for a hearing.

    The agency shall, on request, provide an opportunity for a hearing 
to challenge information in education records to ensure that it is not 
inaccurate, misleading, or otherwise in violation of the privacy or 
other rights of the child.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))



Sec. 300.569  Result of hearing.

    (a) If, as a result of the hearing, the agency decides that the 
information is inaccurate, misleading or otherwise in violation of the 
privacy or other rights of the child, it shall amend the information 
accordingly and so inform the parent in writing.
    (b) If, as a result of the hearing, the agency decides that the 
information is not inaccurate, misleading, or otherwise in violation of 
the privacy or other rights of the child, it shall inform the parent of 
the right to place in the records it maintains on the child a statement 
commenting on the information or setting forth any reasons for 
disagreeing with the decision of the agency.
    (c) Any explanation placed in the records of the child under this 
section must--
    (1) Be maintained by the agency as part of the records of the child 
as long as the record or contested portion is maintained by the agency; 
and
    (2) If the records of the child or the contested portion is 
disclosed by the agency to any party, the explanation must also be 
disclosed to the party.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))



Sec. 300.570  Hearing procedures.

    A hearing held under Sec. 300.568 must be conducted according to the 
procedures under 34 CFR 99.22.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))



Sec. 300.571  Consent.

    (a) Except as to disclosures addressed in Sec. 300.529(b) for which 
parental consent is not required by Part 99, parental consent must be 
obtained before personally identifiable information is--
    (1) Disclosed to anyone other than officials of participating 
agencies collecting or using the information under this part, subject to 
paragraph (b) of this section; or
    (2) Used for any purpose other than meeting a requirement of this 
part.
    (b) An educational agency or institution subject to 34 CFR part 99 
may not release information from education records to participating 
agencies without parental consent unless authorized to do so under part 
99.
    (c) The SEA shall provide policies and procedures that are used in 
the event that a parent refuses to provide consent under this section.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))

[[Page 80]]



Sec. 300.572  Safeguards.

    (a) Each participating agency shall protect the confidentiality of 
personally identifiable information at collection, storage, disclosure, 
and destruction stages.
    (b) One official at each participating agency shall assume 
responsibility for ensuring the confidentiality of any personally 
identifiable information.
    (c) All persons collecting or using personally identifiable 
information must receive training or instruction regarding the State's 
policies and procedures under Sec. 300.127 and 34 CFR part 99.
    (d) Each participating agency shall maintain, for public inspection, 
a current listing of the names and positions of those employees within 
the agency who may have access to personally identifiable information.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))


Sec. 300.573  Destruction of information.

    (a) The public agency shall inform parents when personally 
identifiable information collected, maintained, or used under this part 
is no longer needed to provide educational services to the child.
    (b) The information must be destroyed at the request of the parents. 
However, a permanent record of a student's name, address, and phone 
number, his or her grades, attendance record, classes attended, grade 
level completed, and year completed may be maintained without time 
limitation.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))


Sec. 300.574  Children's rights.

    (a) The SEA shall provide policies and procedures regarding the 
extent to which children are afforded rights of privacy similar to those 
afforded to parents, taking into consideration the age of the child and 
type or severity of disability.
    (b) Under the regulations for the Family Educational Rights and 
Privacy Act of 1974 (34 CFR 99.5(a)), the rights of parents regarding 
education records are transferred to the student at age 18.
    (c) If the rights accorded to parents under Part B of the Act are 
transferred to a student who reaches the age of majority, consistent 
with Sec. 300.517, the rights regarding educational records in 
Secs. 300.562-300.573 must also be transferred to the student. However, 
the public agency must provide any notice required under section 615 of 
the Act to the student and the parents.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))


Sec. 300.575  Enforcement.

    The SEA shall provide the policies and procedures, including 
sanctions, that the State uses to ensure that its policies and 
procedures are followed and that the requirements of the Act and the 
regulations in this part are met.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))


Sec. 300.576  Disciplinary information.

    (a) The State may require that a public agency include in the 
records of a child with a disability a statement of any current or 
previous disciplinary action that has been taken against the child and 
transmit the statement to the same extent that the disciplinary 
information is included in, and transmitted with, the student records of 
nondisabled children.
    (b) The statement may include a description of any behavior engaged 
in by the child that required disciplinary action, a description of the 
disciplinary action taken, and any other information that is relevant to 
the safety of the child and other individuals involved with the child.
    (c) If the State adopts such a policy, and the child transfers from 
one school to another, the transmission of any of the child's records 
must include both the child's current individualized education program 
and any statement of current or previous disciplinary action that has 
been taken against the child.

(Authority: 20 U.S.C. 1413(j))



Sec. 300.577  Department use of personally identifiable information.

    If the Department or its authorized representatives collect any 
personally identifiable information regarding children with disabilities 
that is not subject to 5 U.S.C. 552a (the Privacy Act of 1974), the 
Secretary applies the requirements of 5 U.S.C. 552a (b)(1)-(2), (4)-
(11); (c); (d); (e)(1), (2), (3)(A), (B), and (D),

[[Page 81]]

(5)-(10); (h); (m); and (n); and the regulations implementing those 
provisions in 34 CFR part 5b.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))

                          Department Procedures



Sec. 300.580  Determination by the Secretary that a State is eligible.

    If the Secretary determines that a State is eligible to receive a 
grant under Part B of the Act, the Secretary notifies the State of that 
determination.

(Authority: 20 U.S.C. 1412(d))


Sec. 300.581  Notice and hearing before determining that a State is 
ot eligible.

    (a) General. (1) The Secretary does not make a final determination 
that a State is not eligible to receive a grant under Part B of the Act 
until providing the State--
    (i) With reasonable notice; and
    (ii) With an opportunity for a hearing.
    (2) In implementing paragraph (a)(1)(i) of this section, the 
Secretary sends a written notice to the SEA by certified mail with 
return receipt requested.
    (b) Content of notice. In the written notice described in paragraph 
(a)(2) of this section, the Secretary--
    (1) States the basis on which the Secretary proposes to make a final 
determination that the State is not eligible;
    (2) May describe possible options for resolving the issues;
    (3) Advises the SEA that it may request a hearing and that the 
request for a hearing must be made not later than 30 days after it 
receives the notice of the proposed final determination that the State 
is not eligible; and
    (4) Provides information about the procedures followed for a 
hearing.

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


Sec. 300.582  Hearing official or panel.

    (a) If the SEA requests a hearing, the Secretary designates one or 
more individuals, either from the Department or elsewhere, not 
responsible for or connected with the administration of this program, to 
conduct a hearing.
    (b) If more than one individual is designated, the Secretary 
designates one of those individuals as the Chief Hearing Official of the 
Hearing Panel. If one individual is designated, that individual is the 
Hearing Official.

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



Sec. 300.583  Hearing procedures.

    (a) As used in Secs. 300.581-300.586 the term party or parties means 
the following:
    (1) An SEA that requests a hearing regarding the proposed 
disapproval of the State's eligibility under this part.
    (2) The Department official who administers the program of financial 
assistance under this part.
    (3) A person, group or agency with an interest in and having 
relevant information about the case that has applied for and been 
granted leave to intervene by the Hearing Official or Panel.
    (b) Within 15 days after receiving a request for a hearing, the 
Secretary designates a Hearing Official or Panel and notifies the 
parties.
    (c) The Hearing Official or Panel may regulate the course of 
proceedings and the conduct of the parties during the proceedings. The 
Hearing Official or Panel takes all steps necessary to conduct a fair 
and impartial proceeding, to avoid delay, and to maintain order, 
including the following:
    (1) The Hearing Official or Panel may hold conferences or other 
types of appropriate proceedings to clarify, simplify, or define the 
issues or to consider other matters that may aid in the disposition of 
the case.
    (2) The Hearing Official or Panel may schedule a prehearing 
conference of the Hearing Official or Panel and parties.
    (3) Any party may request the Hearing Official or Panel to schedule 
a prehearing or other conference. The Hearing Official or Panel decides 
whether a conference is necessary and notifies all parties.
    (4) At a prehearing or other conference, the Hearing Official or 
Panel and the parties may consider subjects such as--
    (i) Narrowing and clarifying issues;
    (ii) Assisting the parties in reaching agreements and stipulations;
    (iii) Clarifying the positions of the parties;

[[Page 82]]

    (iv) Determining whether an evidentiary hearing or oral argument 
should be held; and
    (v) Setting dates for--
    (A) The exchange of written documents;
    (B) The receipt of comments from the parties on the need for oral 
argument or evidentiary hearing;
    (C) Further proceedings before the Hearing Official or Panel 
(including an evidentiary hearing or oral argument, if either is 
scheduled);
    (D) Requesting the names of witnesses each party wishes to present 
at an evidentiary hearing and estimation of time for each presentation; 
or
    (E) Completion of the review and the initial decision of the Hearing 
Official or Panel.
    (5) A prehearing or other conference held under paragraph (b)(4) of 
this section may be conducted by telephone conference call.
    (6) At a prehearing or other conference, the parties shall be 
prepared to discuss the subjects listed in paragraph (b)(4) of this 
section.
    (7) Following a prehearing or other conference the Hearing Official 
or Panel may issue a written statement describing the issues raised, the 
action taken, and the stipulations and agreements reached by the 
parties.
    (d) The Hearing Official or Panel may require parties to state their 
positions and to provide all or part of the evidence in writing.
    (e) The Hearing Official or Panel may require parties to present 
testimony through affidavits and to conduct cross-examination through 
interrogatories.
    (f) The Hearing Official or Panel may direct the parties to exchange 
relevant documents or information and lists of witnesses, and to send 
copies to the Hearing Official or Panel.
    (g) The Hearing Official or Panel may receive, rule on, exclude, or 
limit evidence at any stage of the proceedings.
    (h) The Hearing Official or Panel may rule on motions and other 
issues at any stage of the proceedings.
    (i) The Hearing Official or Panel may examine witnesses.
    (j) The Hearing Official or Panel may set reasonable time limits for 
submission of written documents.
    (k) The Hearing Official or Panel may refuse to consider documents 
or other submissions if they are not submitted in a timely manner unless 
good cause is shown.
    (l) The Hearing Official or Panel may interpret applicable statutes 
and regulations but may not waive them or rule on their validity.
    (m)(1) The parties shall present their positions through briefs and 
the submission of other documents and may request an oral argument or 
evidentiary hearing. The Hearing Official or Panel shall determine 
whether an oral argument or an evidentiary hearing is needed to clarify 
the positions of the parties.
    (2) The Hearing Official or Panel gives each party an opportunity to 
be represented by counsel.
    (n) If the Hearing Official or Panel determines that an evidentiary 
hearing would materially assist the resolution of the matter, the 
Hearing Official or Panel gives each party, in addition to the 
opportunity to be represented by counse--
    (1) An opportunity to present witnesses on the party's behalf; and
    (2) An opportunity to cross-examine witnesses either orally or with 
written questions.
    (o) The Hearing Official or Panel accepts any evidence that it finds 
is relevant and material to the proceedings and is not unduly 
repetitious.
    (p)(1) The Hearing Official or Panel--
    (i) Arranges for the preparation of a transcript of each hearing;
    (ii) Retains the original transcript as part of the record of the 
hearing; and
    (iii) Provides one copy of the transcript to each party.
    (2) Additional copies of the transcript are available on request and 
with payment of the reproduction fee.
    (q) Each party shall file with the Hearing Official or Panel all 
written motions, briefs, and other documents and shall at the same time 
provide a copy to the other parties to the proceedings.

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



Sec. 300.584  Initial decision; final decision.

    (a) The Hearing Official or Panel prepares an initial written 
decision that

[[Page 83]]

addresses each of the points in the notice sent by the Secretary to the 
SEA under Sec. 300.581.
    (b) The initial decision of a Panel is made by a majority of Panel 
members.
    (c) The Hearing Official or Panel mails by certified mail with 
return receipt requested a copy of the initial decision to each party 
(or to the party's counsel) and to the Secretary, with a notice stating 
that each party has an opportunity to submit written comments regarding 
the decision to the Secretary.
    (d) Each party may file comments and recommendations on the initial 
decision with the Hearing Official or Panel within 15 days of the date 
the party receives the Panel's decision.
    (e) The Hearing Official or Panel sends a copy of a party's initial 
comments and recommendations to the other parties by certified mail with 
return receipt requested. Each party may file responsive comments and 
recommendations with the Hearing Official or Panel within seven days of 
the date the party receives the initial comments and recommendations.
    (f) The Hearing Official or Panel forwards the parties' initial and 
responsive comments on the initial decision to the Secretary who reviews 
the initial decision and issues a final decision.
    (g) The initial decision of the Hearing Official or Panel becomes 
the final decision of the Secretary unless, within 25 days after the end 
of the time for receipt of written comments, the Secretary informs the 
Hearing Official or Panel and the parties to a hearing in writing that 
the decision is being further reviewed for possible modification.
    (h) The Secretary may reject or modify the initial decision of the 
Hearing Official or Panel if the Secretary finds that it is clearly 
erroneous.
    (i) The Secretary conducts the review based on the initial decision, 
the written record, the Hearing Official's or Panel's proceedings, and 
written comments. The Secretary may remand the matter for further 
proceedings.
    (j) The Secretary issues the final decision within 30 days after 
notifying the Hearing Official or Panel that the initial decision is 
being further reviewed.

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



Sec. 300.585  Filing requirements.

    (a) Any written submission under Secs. 300.581-300.585 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, 
the Hearing Official, or the Panel, 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. 1413(c))


Sec. 300.586  Judicial review.

    If a State is dissatisfied with the Secretary's final action with 
respect to the eligibility of the State under section 612 of the Act, 
the State may, not later than 60 days after notice of that action, file 
with the United States Court of Appeals for the circuit in which that 
State is located a petition for review of that action. A copy of the 
petition must be forthwith transmitted by the clerk of the court to the 
Secretary. The Secretary then files in the court the record of the 
proceedings upon which the Secretary's action was based, as provided in 
section 2112 of title 28, United States Code.

(Authority: 20 U.S.C. 1416(b))


Sec. 300.587  Enforcement.

    (a) General. The Secretary initiates an action described in 
paragraph (b) of this section if the Secretary finds--

[[Page 84]]

    (1) That there has been a failure by the State to comply 
substantially with any provision of Part B of the Act, this part, or 34 
CFR part 301; or
    (2) That there is a failure to comply with any condition of an LEA's 
or SEA's eligibility under Part B of the Act, this part or 34 CFR part 
301, including the terms of any agreement to achieve compliance with 
Part B of the Act, this part, or Part 301 within the timelines specified 
in the agreement.
    (b) Types of action. The Secretary, after notifying the SEA (and any 
LEA or State agency affected by a failure described in paragraph (a)(2) 
of this section)--
    (1) Withholds in whole or in part any further payments to the State 
under Part B of the Act;
    (2) Refers the matter to the Department of Justice for enforcement; 
or
    (3) Takes any other enforcement action authorized by law.
    (c) Nature of withholding. (1) If the Secretary determines that it 
is appropriate to withhold further payments under paragraph (b)(1) of 
this section, the Secretary may determine that the withholding will be 
limited to programs or projects, or portions thereof, affected by the 
failure, or that the SEA shall not make further payments under Part B of 
the Act to specified LEA or State agencies affected by the failure.
    (2) Until the Secretary is satisfied that there is no longer any 
failure to comply with the provisions of Part B of the Act, this part, 
or 34 CFR part 301, as specified in paragraph (a) of this section, 
payments to the State under Part B of the Act are withheld in whole or 
in part, or payments by the SEA under Part B of the Act are limited to 
local educational agencies and State agencies whose actions did not 
cause or were not involved in the failure, as the case may be.
    (3) Any SEA, LEA, or other State agency that has received notice 
under paragraph (a) of this section shall, by means of a public notice, 
take such measures as may be necessary to bring the pendency of an 
action pursuant to this subsection to the attention of the public within 
the jurisdiction of that agency.
    (4) Before withholding under paragraph (b)(1) of this section, the 
Secretary provides notice and a hearing pursuant to the procedures in 
Secs. 300.581-300.586.
    (d) Referral for appropriate enforcement. (1) Before the Secretary 
makes a referral under paragraph (b)(2) of this section for enforcement, 
or takes any other enforcement action authorized by law under paragraph 
(b)(3), the Secretary provides the State--
    (i) With reasonable notice; and
    (ii) With an opportunity for a hearing.
    (2) The hearing described in paragraph (d)(1)(ii) of this section 
consists of an opportunity to meet with the Assistant Secretary for the 
Office of Special Education and Rehabilitative Services to demonstrate 
why the Department should not make a referral for enforcement.
    (e) Divided State agency responsibility. For purposes of this part, 
if responsibility for ensuring that the requirements of this part are 
met with respect to children with disabilities who are convicted as 
adults under State law and incarcerated in adult prisons is assigned to 
a public agency other than the SEA pursuant to Sec. 300.600(d), and if 
the Secretary finds that the failure to comply substantially with the 
provisions of Part B of the Act or this part are related to a failure by 
the public agency, the Secretary takes one of the enforcement actions 
described in paragraph (b) of this section to ensure compliance with 
Part B of the Act and this part, except--
    (1) Any reduction or withholding of payments to the State under 
paragraph (b)(1) of this section is proportionate to the total funds 
allotted under section 611 of the Act to the State as the number of 
eligible children with disabilities in adult prisons under the 
supervision of the other public agency is proportionate to the number of 
eligible individuals with disabilities in the State under the 
supervision of the State educational agency; and
    (2) Any withholding of funds under paragraph (e)(1) of this section 
is limited to the specific agency responsible for the failure to comply 
with Part B of the Act or this part.

(Authority: 20 U.S.C. 1416)

[[Page 85]]


Sec. 300.589  Waiver of requirement regarding supplementing and not 
supplanting with Part B funds.

    (a) Except as provided under Secs. 300.232-300.235, funds paid to a 
State under Part B of the Act must be used to supplement and increase 
the level of Federal, State, and local funds (including funds that are 
not under the direct control of SEAs or LEAs) expended for special 
education and related services provided to children with disabilities 
under Part B of the Act and in no case to supplant those Federal, State, 
and local funds. A State may use funds it retains under Sec. 300.602 
without regard to the prohibition on supplanting other funds (see 
Sec. 300.372).
    (b) If a State provides clear and convincing evidence that all 
eligible children with disabilities throughout the State have FAPE 
available to them, the Secretary may waive for a period of one year in 
whole or in part the requirement under Sec. 300.153 (regarding State-
level nonsupplanting) if the Secretary concurs with the evidence 
provided by the State.
    (c) If a State wishes to request a waiver under this section, it 
must submit to the Secretary a written request that includes--
    (1) An assurance that FAPE is currently available, and will remain 
available throughout the period that a waiver would be in effect, to all 
eligible children with disabilities throughout the State, regardless of 
the public agency that is responsible for providing FAPE to them. The 
assurance must be signed by an official who has the authority to provide 
that assurance as it applies to all eligible children with disabilities 
in the State;
    (2) All evidence that the State wishes the Secretary to consider in 
determining whether all eligible children with disabilities have FAPE 
available to them, setting forth in detail--
    (i) The basis on which the State has concluded that FAPE is 
available to all eligible children in the State; and
    (ii) The procedures that the State will implement to ensure that 
FAPE remains available to all eligible children in the State, which must 
include--
    (A) The State's procedures under Sec. 300.125 for ensuring that all 
eligible children are identified, located and evaluated;
    (B) The State's procedures for monitoring public agencies to ensure 
that they comply with all requirements of this part;
    (C) The State's complaint procedures under Secs. 300.660-300.662; 
and
    (D) The State's hearing procedures under Secs. 300.507-300.511 and 
300.520-300.528;
    (3) A summary of all State and Federal monitoring reports, and State 
complaint decisions (see Secs. 300.660-300.662) and hearing decisions 
(see Secs. 300.507-300.511 and 300.520-300.528), issued within three 
years prior to the date of the State's request for a waiver under this 
section, that includes any finding that FAPE has not been available to 
one or more eligible children, and evidence that FAPE is now available 
to all children addressed in those reports or decisions; and
    (4) Evidence that the State, in determining that FAPE is currently 
available to all eligible children with disabilities in the State, has 
consulted with the State advisory panel under Sec. 300.650, the State's 
parent training and information center or centers, the State's 
protection and advocacy organization, and other organizations 
representing the interests of children with disabilities and their 
parents, and a summary of the input of these organizations.
    (d) If the Secretary determines that the request and supporting 
evidence submitted by the State makes a prima facie showing that FAPE 
is, and will remain, available to all eligible children with 
disabilities in the State, the Secretary, after notice to the public 
throughout the State, conducts a public hearing at which all interested 
persons and organizations may present evidence regarding the following 
issues:
    (1) Whether FAPE is currently available to all eligible children 
with disabilities in the State.
    (2) Whether the State will be able to ensure that FAPE remains 
available to all eligible children with disabilities in the State if the 
Secretary provides the requested waiver.

[[Page 86]]

    (e) Following the hearing, the Secretary, based on all submitted 
evidence, will provide a waiver, in whole or in part, for a period of 
one year if the Secretary finds that the State has provided clear and 
convincing evidence that FAPE is currently available to all eligible 
children with disabilities in the State, and the State will be able to 
ensure that FAPE remains available to all eligible children with 
disabilities in the State if the Secretary provides the requested 
waiver.
    (f) A State may receive a waiver of the requirement of section 
612(a)(19)(A) and Sec. 300.154(a) if it satisfies the requirements of 
paragraphs (b) through (e) of this section.
    (g) The Secretary may grant subsequent waivers for a period of one 
year each, if the Secretary determines that the State has provided clear 
and convincing evidence that all eligible children with disabilities 
throughout the State have, and will continue to have throughout the one-
year period of the waiver, FAPE available to them.

(Authority: 20 U.S.C. 1412(a)(18)(C), (19)(C)(ii) and (E))

                     Subpart F--State Administration
 
Sec. 300.600  Responsibility for all educational 
programs.

                                 General

    (a) The SEA is responsible for ensuring--
    (1) That the requirements of this part are carried out; and
    (2) That each educational program for children with disabilities 
administered within the State, including each program administered by 
any other State or local agency--
    (i) Is under the general supervision of the persons responsible for 
educational programs for children with disabilities in the SEA; and
    (ii) Meets the education standards of the SEA (including the 
requirements of this part).
    (b) The State must comply with paragraph (a) of this section through 
State statute, State regulation, signed agreement between respective 
agency officials, or other documents.
    (c) Part B of the Act does not limit the responsibility of agencies 
other than educational agencies for providing or paying some or all of 
the costs of FAPE to children with disabilities in the State.
    (d) Notwithstanding paragraph (a) of this section, the Governor (or 
another individual pursuant to State law) may assign to any public 
agency in the State the responsibility of ensuring that the requirements 
of Part B of the Act are met with respect to students with disabilities 
who are convicted as adults under State law and incarcerated in adult 
prisons.

(Authority: 20 U.S.C. 1412(a)(11))



Sec. 300.601  Relation of Part B to other Federal programs.

    Part B of the Act may not be construed to permit a State to reduce 
medical and other assistance available to children with disabilities, or 
to alter the eligibility of a child with a disability, under title V 
(Maternal and Child Health) or title XIX (Medicaid) of the Social 
Security Act, to receive services that are also part of FAPE.

(Authority: 20 U.S.C. 1412(e))



Sec. 300.602  State-level activities.

    (a) Each State may retain not more than the amount described in 
paragraph (b) of this section for administration in accordance with 
Secs. 300.620 and 300.621 and other State-level activities in accordance 
with Sec. 300.370.
    (b) For each fiscal year, the Secretary determines and reports to 
the SEA an amount that is 25 percent of the amount the State received 
under this section for fiscal year 1997, cumulatively adjusted by the 
Secretary for each succeeding fiscal year by the lesser of--
    (1) The percentage increase, if any, from the preceding fiscal year 
in the State's allocation under section 611 of the Act; or
    (2) The rate of inflation, as measured by the percentage increase, 
if any, from the preceding fiscal year in the Consumer Price Index For 
All Urban Consumers, published by the Bureau of Labor Statistics of the 
Department of Labor.

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

[[Page 87]]

                              Use of Funds



Sec. 300.620  Use of funds for State administration.

    (a) For the purpose of administering Part B of the Act, including 
section 619 of the Act (including the coordination of activities under 
Part B of the Act with, and providing technical assistance to, other 
programs that provide services to children with disabilities)--
    (1) Each State may use not more than twenty percent of the maximum 
amount it may retain under Sec. 300.602(a) for any fiscal year or 
$500,000 (adjusted by the cumulative rate of inflation since fiscal year 
1998, as measured by the percentage increase, if any, in the Consumer 
Price Index For All Urban Consumers, published by the Bureau of Labor 
Statistics of the Department of Labor), whichever is greater; and
    (2) Each outlying area may use up to five percent of the amount it 
receives under this section for any fiscal year or $35,000, whichever is 
greater.
    (b) Funds described in paragraph (a) of this section may also be 
used for the administration of Part C of the Act, if the SEA is the lead 
agency for the State under that part.

(Authority: 20 U.S.C. 1411(f)(2))



Sec. 300.621  Allowable costs.

    (a) The SEA may use funds under Sec. 300.620 for--
    (1) Administration of State activities under Part B of the Act and 
for planning at the State level, including planning, or assisting in the 
planning, of programs or projects for the education of children with 
disabilities;
    (2) Approval, supervision, monitoring, and evaluation of the 
effectiveness of local programs and projects for the education of 
children with disabilities;
    (3) Technical assistance to LEAs with respect to the requirements of 
Part B of the Act;
    (4) Leadership services for the program supervision and management 
of special education activities for children with disabilities; and
    (5) Other State leadership activities and consultative services.
    (b) The SEA shall use the remainder of its funds under Sec. 300.620 
in accordance with Sec. 300.370.

(Authority: 20 U.S.C. 1411(f)(2))



Sec. 300.622 Subgrants to LEAs for capacity-building and improvement.

    In any fiscal year in which the percentage increase in the State's 
allocation under 611 of the Act exceeds the rate of inflation (as 
measured by the percentage increase, if any, from the preceding fiscal 
year in the Consumer Price Index For All Urban Consumers, published by 
the Bureau of Labor Statistics of the Department of Labor), each State 
shall reserve, from its allocation under 611 of the Act, the amount 
described in Sec. 300.623 to make subgrants to LEAs, unless that amount 
is less than $100,000, to assist them in providing direct services and 
in making systemic change to improve results for children with 
disabilities through one or more of the following:
    (a) Direct services, including alternative programming for children 
who have been expelled from school, and services for children in 
correctional facilities, children enrolled in State-operated or State-
supported schools, and children in charter schools.
    (b) Addressing needs or carrying out improvement strategies 
identified in the State's Improvement Plan under subpart 1 of Part D of 
the Act.
    (c) Adopting promising practices, materials, and technology, based 
on knowledge derived from education research and other sources.
    (d) Establishing, expanding, or implementing interagency agreements 
and arrangements between LEAs and other agencies or organizations 
concerning the provision of services to children with disabilities and 
their families.
    (e) Increasing cooperative problem-solving between parents and 
school personnel and promoting the use of alternative dispute 
resolution.

(Authority: 20 U.S.C. 1411(f)(4)(A))



Sec. 300.623  Amount required for subgrants to LEAs.

    For each fiscal year, the amount referred to in Sec. 300.622 is--
    (a) The maximum amount the State was allowed to retain under 
Sec. 300.602(a)

[[Page 88]]

for the prior fiscal year, or, for fiscal year 1998, 25 percent of the 
State's allocation for fiscal year 1997 under section 611; multiplied by
    (b) The difference between the percentage increase in the State's 
allocation under this section and the rate of inflation, as measured by 
the percentage increase, if any, from the preceding fiscal year in the 
Consumer Price Index For All Urban Consumers, published by the Bureau of 
Labor Statistics of the Department of Labor.

(Authority: 20 U.S.C. 1411(f)(4)(B))



Sec. 300.624  State discretion in awarding subgrants.

    The State may establish priorities in awarding subgrants under 
Sec. 300.622 to LEAs competitively or on a targeted basis.

(Authority: 20 U.S.C. 1411(f)(4)(A))

                          State Advisory Panel


Sec. 300.650  Establishment of advisory panels.

    (a) Each State shall establish and maintain, in accordance with 
Secs. 300.650-300.653, a State advisory panel on the education of 
children with disabilities.
    (b) The advisory panel must be appointed by the Governor or any 
other official authorized under State law to make those appointments.
    (c) If a State has an existing advisory panel that can perform the 
functions in Sec. 300.652, the State may modify the existing panel so 
that it fulfills all of the requirements of Secs. 300.650-300.653, 
instead of establishing a new advisory panel.

(Authority: 20 U.S.C. 1412(a)(21)(A))


Sec. 300.651  Membership.

    (a) General. The membership of the State advisory panel must consist 
of members appointed by the Governor, or any other official authorized 
under State law to make these appointments, that is representative of 
the State population and that is composed of individuals involved in, or 
concerned with the education of children with disabilities, including--
    (1) Parents of children with disabilities;
    (2) Individuals with disabilities;
    (3) Teachers;
    (4) Representatives of institutions of higher education that prepare 
special education and related services personnel;
    (5) State and local education officials;
    (6) Administrators of programs for children with disabilities;
    (7) Representatives of other State agencies involved in the 
financing or delivery of related services to children with disabilities;
    (8) Representatives of private schools and public charter schools;
    (9) At least one representative of a vocational, community, or 
business organization concerned with the provision of transition 
services to children with disabilities; and
    (10) Representatives from the State juvenile and adult corrections 
agencies.
    (b) Special rule. A majority of the members of the panel must be 
individuals with disabilities or parents of children with disabilities.

(Authority: 20 U.S.C. 1412(a)(21)(B) and (C))



Sec. 300.652  Advisory panel functions.

    (a) General. The State advisory panel shall--
    (1) Advise the SEA of unmet needs within the State in the education 
of children with disabilities;
    (2) Comment publicly on any rules or regulations proposed by the 
State regarding the education of children with disabilities;
    (3) Advise the SEA in developing evaluations and reporting on data 
to the Secretary under section 618 of the Act;
    (4) Advise the SEA in developing corrective action plans to address 
findings identified in Federal monitoring reports under Part B of the 
Act; and
    (5) Advise the SEA in developing and implementing policies relating 
to the coordination of services for children with disabilities.
    (b) Advising on eligible students with disabilities in adult 
prisons. The advisory panel also shall advise on the education of 
eligible students with disabilities who have been convicted as adults 
and incarcerated in adult prisons, even if, consistent with 
Sec. 300.600(d), a State

[[Page 89]]

assigns general supervision responsibility for those students to a 
public agency other than an SEA.

(Authority: 20 U.S.C. 1412(a)(21)(D))



Sec. 300.653  Advisory panel procedures.

    (a) The advisory panel shall meet as often as necessary to conduct 
its business.
    (b) By July 1 of each year, the advisory panel shall submit an 
annual report of panel activities and suggestions to the SEA. This 
report must be made available to the public in a manner consistent with 
other public reporting requirements of Part B of the Act.
    (c) Official minutes must be kept on all panel meetings and must be 
made available to the public on request.
    (d) All advisory panel meetings and agenda items must be announced 
enough in advance of the meeting to afford interested parties a 
reasonable opportunity to attend. Meetings must be open to the public.
    (e) Interpreters and other necessary services must be provided at 
panel meetings for panel members or participants. The State may pay for 
these services from funds under Sec. 300.620.
    (f) The advisory panel shall serve without compensation but the 
State must reimburse the panel for reasonable and necessary expenses for 
attending meetings and performing duties. The State may use funds under 
Sec. 300.620 for this purpose.

(Authority: 20 U.S.C. 1412(a)(21))

                       State Complaint Procedures



Sec. 300.660  Adoption of State complaint procedures.

    (a) General. Each SEA shall adopt written procedures for--
    (1) Resolving any complaint, including a complaint filed by an 
organization or individual from another State, that meets the 
requirements of Sec. 300.662 by--
    (i) Providing for the filing of a complaint with the SEA; and
    (ii) At the SEA's discretion, providing for the filing of a 
complaint with a public agency and the right to have the SEA review the 
public agency's decision on the complaint; and
    (2) Widely disseminating to parents and other interested 
individuals, including parent training and information centers, 
protection and advocacy agencies, independent living centers, and other 
appropriate entities, the State's procedures under Secs. 300.660-
300.662.
    (b) Remedies for denial of appropriate services. In resolving a 
complaint in which it has found a failure to provide appropriate 
services, an SEA, pursuant to its general supervisory authority under 
Part B of the Act, must address:
    (1) How to remediate the denial of those services, including, as 
appropriate, the awarding of monetary reimbursement or other corrective 
action appropriate to the needs of the child; and
    (2) Appropriate future provision of services for all children with 
disabilities.

(Authority: 20 U.S.C. 1221e-3)

Sec. 300.661  Minimum State complaint procedures.

    (a) Time limit; minimum procedures. Each SEA shall include in its 
complaint procedures a time limit of 60 days after a complaint is filed 
under Sec. 300.660(a) to--
    (1) Carry out an independent on-site investigation, if the SEA 
determines that an investigation is necessary;
    (2) Give the complainant the opportunity to submit additional 
information, either orally or in writing, about the allegations in the 
complaint;
    (3) Review all relevant information and make an independent 
determination as to whether the public agency is violating a requirement 
of Part B of the Act or of this part; and
    (4) Issue a written decision to the complainant that addresses each 
allegation in the complaint and contains--
    (i) Findings of fact and conclusions; and
    (ii) The reasons for the SEA's final decision.
    (b) Time extension; final decision; implementation. The SEA's 
procedures described in paragraph (a) of this section also must--
    (1) Permit an extension of the time limit under paragraph (a) of 
this section only if exceptional circumstances exist with respect to a 
particular complaint; and

[[Page 90]]

    (2) Include procedures for effective implementation of the SEA's 
final decision, if needed, including--
    (i) Technical assistance activities;
    (ii) Negotiations; and
    (iii) Corrective actions to achieve compliance.
    (c) Complaints filed under this section, and due process hearings 
under Secs. 300.507 and 300.520-300.528. (1) If a written complaint is 
received that is also the subject of a due process hearing under 
Sec. 300.507 or Secs. 300.520-300.528, or contains multiple issues, of 
which one or more are part of that 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 a part of the due process action must be resolved 
using the time limit and procedures described in paragraphs (a) and (b) 
of this section.
    (2) If an issue is raised in a complaint filed under this section 
that has previously been decided in a due process hearing involving the 
same parties--
    (i) The hearing decision is binding; and
    (ii) The SEA must inform the complainant to that effect.
    (3) A complaint alleging a public agency's failure to implement a 
due process decision must be resolved by the SEA.

(Authority: 20 U.S.C. 1221e-3)

Sec. 300.662  Filing a complaint.

    (a) An organization or individual may file a signed written 
complaint under the procedures described in Secs. 300.660-300.661.
    (b) The complaint must include--
    (1) A statement that a public agency has violated a requirement of 
Part B of the Act or of this part; and
    (2) The facts on which the statement is based.
    (c) The complaint must allege a violation that occurred not more 
than one year prior to the date that the complaint is received in 
accordance with Sec. 300.660(a) unless a longer period is reasonable 
because the violation is continuing, or the complainant is requesting 
compensatory services for a violation that occurred not more than three 
years prior to the date the complaint is received under Sec. 300.660(a).

(Authority: 20 U.S.C. 1221e-3)


                 Subpart G--Allocation of Funds; Reports
 
Sec. 300.700  Special definition of the term ``State''.

                               Allocations


    For the purposes of Secs. 300.701, and 300.703-300.714, the term 
State means each of the 50 States, the District of Columbia, and the 
Commonwealth of Puerto Rico.

(Authority: 20 U.S.C. 1411(h)(2))

Sec. 300.701  Grants to States.

    (a) Purpose of grants. The Secretary makes grants to States and the 
outlying areas and provides funds to the Secretary of the Interior, to 
assist them to provide special education and related services to 
children with disabilities in accordance with Part B of the Act.
    (b) Maximum amounts. The maximum amount of the grant a State may 
receive under section 611 of the Act for any fiscal year is--
    (1) The number of children with disabilities in the State who are 
receiving special education and related services--
    (i) Aged 3 through 5 if the State is eligible for a grant under 
section 619 of the Act; and
    (ii) Aged 6 through 21; multiplied by--
    (2) Forty (40) percent of the average per-pupil expenditure in 
public elementary and secondary schools in the United States.

(Authority: 20 U.S.C. 1411(a))



Sec. 300.702  Definition.

    For the purposes of this section the term average per-pupil 
expenditure in public elementary and secondary schools in the United 
States means--
    (a) Without regard to the source of funds--
    (1) The aggregate current expenditures, during the second fiscal 
year preceding the fiscal year for which the

[[Page 91]]

determination is made (or, if satisfactory data for that year are not 
available, during the most recent preceding fiscal year for which 
satisfactory data are available) of all LEAs in the 50 States and the 
District of Columbia); plus
    (2) Any direct expenditures by the State for the operation of those 
agencies; divided by
    (b) The aggregate number of children in average daily attendance to 
whom those agencies provided free public education during that preceding 
year.

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

Sec. 300.703  Allocations to States.

	(a) General. After reserving funds for studies and evaluations 
under section 674(e) of the Act, and for payments to the outlying areas,
the freely associated States, and the Secretary of the Interior under 
Secs. 300.715 and 300.717-300.719, the Secretary allocates the 
remaining amount among the States in accordance with paragraph (b) of 
this section and Secs. 300.706-300.709.
	
	(b) Interim formula. Except as provided in Secs. 300.706-300.709, the
Secretary allocates the amount described in paragraph (a) of this section 
among the States in accordance with section 611(a)(3), (4), (5) and (b)(1), 
(2) and (3) of the Act, as in effect prior to June 4, 1997, except that the
determination of the number of children with disabilities receiving 
special education and related services under section 611(a)(3) of the Act 
(as then in effect) may be calculated as of December 1, or, at the State's 
discretion, the last Friday in October, of the fiscal year for which the 
funds were appropriated.

(Authority: 20 U.S.C. 1411(d))

Secs. 300.704-300.705  [Reserved]

Sec. 300.706  Permanent formula.

    (a) Establishment of base year. The Secretary allocates the amount 
described in Sec. 300.703(a) among the States in accordance with 
Secs. 300.706-300.709 for each fiscal year beginning with the first 
fiscal year for which the amount appropriated under 611(j) of the Act is 
more than $4,924,672,200.
    (b) Use of base year. (1) Definition. As used in this section, the 
term base year means the fiscal year preceding the first fiscal year in 
which this section applies.
    (2) Special rule for use of base year amount. If a State received 
any funds under section 611 of the Act for the base year on the basis of 
children aged 3 through 5, but does not make FAPE available to all 
children with disabilities aged 3 through 5 in the State in any 
subsequent fiscal year, the Secretary computes the State's base year 
amount, solely for the purpose of calculating the State's allocation in 
that subsequent year under Secs. 300.707-300.709, by subtracting the 
amount allocated to the State for the base year on the basis of those 
children.

(Authority: 20 U.S.C. 1411(e)(1) and (2))



Sec. 300.707  Increase in funds.

    If the amount available for allocations to States under Sec. 300.706 
is equal to or greater than the amount allocated to the States under 
section 611 of the Act for the preceding fiscal year, those allocations 
are calculated as follows:
    (a) Except as provided in Sec. 300.708, the Secretary--
    (1) Allocates to each State the amount it received for the base 
year;
    (2) Allocates 85 percent of any remaining funds to States on the 
basis of their relative populations of children aged 3 through 21 who 
are of the same age as children with disabilities for whom the State 
ensures the availability of FAPE under Part B of the Act; and
    (3) Allocates 15 percent of those remaining funds to States on the 
basis of their relative populations of children described in paragraph 
(a)(2) of this section who are living in poverty.
    (b) For the purpose of making grants under this section, the 
Secretary uses the most recent population data, including data on 
children living in poverty, that are available and satisfactory to the 
Secretary.

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



Sec. 300.708  Limitation.

    (a) Allocations under Sec. 300.707 are subject to the following:

[[Page 92]]

    (1) No State's allocation may be less than its allocation for the 
preceding fiscal year.
    (2) No State's allocation may be less than the greatest of--
    (i) The sum of--
    (A) The amount it received for the base year; and
    (B) One-third of one percent of the amount by which the amount 
appropriated under section 611(j) of the Act exceeds the amount 
appropriated under section 611 of the Act for the base year; or
    (ii) The sum of--
    (A) The amount it received for the preceding fiscal year; and
    (B) That amount multiplied by the percentage by which the increase 
in the funds appropriated from the preceding fiscal year exceeds 1.5 
percent; or
    (iii) The sum of--
    (A) The amount it received for the preceding fiscal year; and
    (B) That amount multiplied by 90 percent of the percentage increase 
in the amount appropriated from the preceding fiscal year.
    (b) Notwithstanding paragraph (a)(2) of this section, no State's 
allocation under Sec. 300.707 may exceed the sum of--
    (1) The amount it received for the preceding fiscal year; and
    (2) That amount multiplied by the sum of 1.5 percent and the 
percentage increase in the amount appropriated.
    (c) If the amount available for allocations to States under 
Sec. 300.703 and paragraphs (a) and (b) of this section is insufficient 
to pay those allocations in full those allocations are ratably reduced, 
subject to paragraph (a)(1) of this section.

(Authority: 20 U.S.C. 1411(e)(3)(B) and (C))



Sec. 300.709  Decrease in funds.

    If the amount available for allocations to States under Sec. 300.706 
is less than the amount allocated to the States under section 611 of the 
Act for the preceding fiscal year, those allocations are calculated as 
follows:
    (a) If the amount available for allocations is greater than the 
amount allocated to the States for the base year, each State is 
allocated the sum of--
    (1) The amount it received for the base year; and
    (2) An amount that bears the same relation to any remaining funds as 
the increase the State received for the preceding fiscal year over the 
base year bears to the total of those increases for all States.
    (b)(1) If the amount available for allocations is equal to or less 
than the amount allocated to the States for the base year, each State is 
allocated the amount it received for the base year.
    (2) If the amount available is insufficient to make the allocations 
described in paragraph (b)(1) of this section, those allocations are 
ratably reduced.

(Authority: 20 U.S.C. 1411(e)(4))



Sec. 300.710  Allocation for State in which by-pass is implemented for 
private school children with disabilities.

    In determining the allocation under Secs. 300.700-300.709 of a State 
in which the Secretary will implement a by-pass for private school 
children with disabilities under Secs. 300.451-300.487, the Secretary 
includes in the State's child count--
    (a) For the first year of a by-pass, the actual or estimated number 
of private school children with disabilities (as defined in 
Secs. 300.7(a) and 300.450) in the State, as of the preceding December 
1; and
    (b) For succeeding years of a by-pass, the number of private school 
children with disabilities who received special education and related 
services under the by-pass in the preceding year.

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


Sec. 300.711  Subgrants to LEAs.

    Each State that receives a grant under section 611 of the Act for 
any fiscal year shall distribute in accordance with Sec. 300.712 any 
funds it does not retain under Sec. 300.602 and is not required to 
distribute under Secs. 300.622 and 300.623 to LEAs in the State that 
have established their eligibility under section 613 of the Act, and to 
State agencies that received funds under section 614A(a) of the Act for 
fiscal year 1997, as then in effect, and have established their 
eligibility under section 613 of the Act, for use in accordance with 
Part B of the Act.

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

[[Page 93]]


Sec. 300.712  Allocations to LEAs.

    (a) Interim procedure. For each fiscal year for which funds are 
allocated to States under Sec. 300.703(b) each State shall allocate 
funds under Sec. 300.711 in accordance with section 611(d) of the Act, 
as in effect prior to June 4, 1997.
    (b) Permanent procedure. For each fiscal year for which funds are 
allocated to States under Secs. 300.706-300.709, each State shall 
allocate funds under Sec. 300.711 as follows:
    (1) Base payments. The State first shall award each agency described 
in Sec. 300.711 the amount that agency would have received under this 
section for the base year, as defined in Sec. 300.706(b)(1), if the 
State had distributed 75 percent of its grant for that year under 
section Sec. 300.703(b).
    (2) Base payment adjustments. For any fiscal year after the base 
year fiscal year--
    (i) If a new LEA is created, the State shall divide the base 
allocation determined under paragraph (b)(1) of this section for the 
LEAs that would have been responsible for serving children with 
disabilities now being served by the new LEA, among the new LEA and 
affected LEAs based on the relative numbers of children with 
disabilities ages 3 through 21, or ages 6 through 21 if a State has had 
its payment reduced under Sec. 300.706(b)(2), currently provided special 
education by each of the LEAs;
    (ii) If one or more LEAs are combined into a single new LEA, the 
State shall combine the base allocations of the merged LEAs; and
    (iii) If, for two or more LEAs, geographic boundaries or 
administrative responsibility for providing services to children with 
disabilities ages 3 through 21 change, the base allocations of affected 
LEAs shall be redistributed among affected LEAs based on the relative 
numbers of children with disabilities ages 3 through 21, or ages 6 
through 21 if a State has had its payment reduced under 
Sec. 300.706(b)(2), currently provided special education by each 
affected LEA.
    (3) Allocation of remaining funds. The State then shall--
    (i) Allocate 85 percent of any remaining funds to those agencies on 
the basis of the relative numbers of children enrolled in public and 
private elementary and secondary schools within each agency's 
jurisdiction; and
    (ii) Allocate 15 percent of those remaining funds to those agencies 
in accordance with their relative numbers of children living in poverty, 
as determined by the SEA.
    (iii) For the purposes of making grants under this section, States 
must apply on a uniform basis across all LEAs the best data that are 
available to them on the numbers of children enrolled in public and 
private elementary and secondary schools and the numbers of children 
living in poverty.

(Authority: 20 U.S.C. 1411(g)(2))

Sec. 300.713  Former Chapter 1 State agencies.

    (a) To the extent necessary, the State--
    (1) Shall use funds that are available under Sec. 300.602(a) to 
ensure that each State agency that received fiscal year 1994 funds under 
subpart 2 of Part D of chapter 1 of title I of the Elementary and 
Secondary Education Act of 1965 (as in effect in fiscal year 1994) 
receives, from the combination of funds under Sec. 300.602(a) and funds 
provided under Sec. 300.711, an amount no less than--
    (i) The number of children with disabilities, aged 6 through 21, to 
whom the agency was providing special education and related services on 
December 1, or, at the State's discretion, the last Friday in October, 
of the fiscal year for which the funds were appropriated, subject to the 
limitation in paragraph (b) of this section; multiplied by
    (ii) The per-child amount provided under that subpart for fiscal 
year 1994; and
    (2) May use funds under Sec. 300.602(a) to ensure that each LEA that 
received fiscal year 1994 funds under that subpart for children who had 
transferred from a State-operated or State-supported school or program 
assisted under that subpart receives, from the combination of funds 
available under Sec. 300.602(a) and funds provided under Sec. 300.711, 
an amount for each child, aged 3 through 21 to whom the agency was 
providing special education and related services on December 1, or, at 
the State's discretion, the last Friday in October, of

[[Page 94]]

the fiscal year for which the funds were appropriated, equal to the per-
child amount the agency received under that subpart for fiscal year 
1994.
    (b) The number of children counted under paragraph (a)(1)(i) of this 
section may not exceed the number of children aged 3 through 21 for whom 
the agency received fiscal year 1994 funds under subpart 2 of Part D of 
chapter 1 of title I of the Elementary and Secondary Education Act of 
1965 (as in effect in fiscal year 1994).

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

Sec. 300.714  Reallocation of LEA funds.

    If an SEA determines that an LEA is adequately providing FAPE to all 
children with disabilities residing in the area served by that agency 
with State and local funds, the SEA may reallocate any portion of the 
funds under Part B of the Act that are not needed by that local agency 
to provide FAPE to other LEAs in the State that are not adequately 
providing special education and related services to all children with 
disabilities residing in the areas they serve.

(Authority: 20 U.S.C. 1411(g)(4))


Sec. 300.715  Payments to the Secretary of the Interior for the 
education of Indian children.

    (a) Reserved amounts for Secretary of Interior. From the amount 
appropriated for any fiscal year under 611(j) of the Act, the Secretary 
reserves 1.226 percent to provide assistance to the Secretary of the 
Interior in accordance with this section and Sec. 300.716.
    (b) Provision of amounts for assistance. The Secretary provides 
amounts to the Secretary of the Interior to meet the need for assistance 
for the education of children with disabilities on reservations aged 5 
to 21, inclusive, enrolled in elementary and secondary schools for 
Indian children operated or funded by the Secretary of the Interior. The 
amount of the payment for any fiscal year is equal to 80 percent of the 
amount allotted under paragraph (a) of this section for that fiscal 
year.
    (c) Calculation of number of children. In the case of Indian 
students aged 3 to 5, inclusive, who are enrolled in programs affiliated 
with the Bureau of Indian Affairs (BIA) schools and that are required by 
the States in which these schools are located to attain or maintain 
State accreditation, and which schools have this accreditation prior to 
the date of enactment of the Individuals with Disabilities Education Act 
Amendments of 1991, the school may count those children for the purpose 
of distribution of the funds provided under this section to the 
Secretary of the Interior.
    (d) Responsibility for meeting the requirements of Part B. The 
Secretary of the Interior shall meet all of the requirements of Part B 
of the Act for the children described in paragraphs (b) and (c) of this 
section, in accordance with Sec. 300.260.

(Authority: 20 U.S.C. 1411(c); 1411(i)(1)(A) and (B))



Sec. 300.716  Payments for education and services for Indian children 
with disabilities aged 3 through 5.

    (a) General. With funds appropriated under 611(j) of the Act, the 
Secretary makes payments to the Secretary of the Interior to be 
distributed to tribes or tribal organizations (as defined under section 
4 of the Indian Self-Determination and Education Assistance Act) or 
consortia of those tribes or tribal organizations to provide for the 
coordination of assistance for special education and related services 
for children with disabilities aged 3 through 5 on reservations served 
by elementary and secondary schools for Indian children operated or 
funded by the Department of the Interior. The amount of the payments 
under paragraph (b) of this section for any fiscal year is equal to 20 
percent of the amount allotted under Sec. 300.715(a).
    (b) Distribution of funds. The Secretary of the Interior shall 
distribute the total amount of the payment under paragraph (a) of this 
section by allocating to each tribe or tribal organization an amount 
based on the number of children with disabilities ages 3 through 5 
residing on reservations as reported annually, divided by the total of 
those children served by all tribes or tribal organizations.
    (c) Submission of information. To receive a payment under this 
section, the

[[Page 95]]

tribe or tribal organization shall submit the figures to the Secretary 
of the Interior as required to determine the amounts to be allocated 
under paragraph (b) of this section. This information must be compiled 
and submitted to the Secretary.
    (d) Use of funds. (1) The funds received by a tribe or tribal 
organization must be used to assist in child find, screening, and other 
procedures for the early identification of children aged 3 through 5, 
parent training, and the provision of direct services. These activities 
may be carried out directly or through contracts or cooperative 
agreements with the BIA, LEAs, and other public or private nonprofit 
organizations. The tribe or tribal organization is encouraged to involve 
Indian parents in the development and implementation of these 
activities.
    (2) The entities shall, as appropriate, make referrals to local, 
State, or Federal entities for the provision of services or further 
diagnosis.
    (e) Biennial report. To be eligible to receive a grant pursuant to 
paragraph (a) of this section, the tribe or tribal organization shall 
provide to the Secretary of the Interior a biennial report of activities 
undertaken under this paragraph, including the number of contracts and 
cooperative agreements entered into, the number of children contacted 
and receiving services for each year, and the estimated number of 
children needing services during the two years following the one in 
which the report is made. The Secretary of the Interior shall include a 
summary of this information on a biennial basis in the report to the 
Secretary required under section 611(i) of the Act. The Secretary may 
require any additional information from the Secretary of the Interior.
    (f) Prohibitions. None of the funds allocated under this section may 
be used by the Secretary of the Interior for administrative purposes, 
including child count and the provision of technical assistance.

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



Sec. 300.717  Outlying areas and freely associated States.

    From the amount appropriated for any fiscal year under section 
611(j) of the Act, the Secretary reserves not more than one percent, 
which must be used--
    (a) To provide assistance to the outlying areas in accordance with 
their respective populations of individuals aged 3 through 21; and
    (b) For fiscal years 1998 through 2001, to carry out the competition 
described in Sec. 300.719, except that the amount reserved to carry out 
that competition may not exceed the amount reserved for fiscal year 1996 
for the competition under Part B of the Act described under the heading 
``SPECIAL EDUCATION'' in Public Law 104-134.

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


Sec. 300.718  Outlying area--definition.

    As used in this part, the term outlying area means the United States 
Virgin Islands, Guam, American Samoa, and the Commonwealth of the 
Northern Mariana Islands.

(Authority: 20 U.S.C. 1402(18))



Sec. 300.719  Limitation for freely associated States.

    (a) Competitive grants. The Secretary uses funds described in 
Sec. 300.717(b) to award grants, on a competitive basis, to Guam, 
American Samoa, the Commonwealth of the Northern Mariana Islands, and 
the freely associated States to carry out the purposes of this part.
    (b) Award basis. The Secretary awards grants under paragraph (a) of 
this section on a competitive basis, pursuant to the recommendations of 
the Pacific Region Educational Laboratory in Honolulu, Hawaii. Those 
recommendations must be made by experts in the field of special 
education and related services.
    (c) Assistance requirements. Any freely associated State that wishes 
to receive funds under Part B of the Act shall include, in its 
application for assistance--
    (1) Information demonstrating that it will meet all conditions that 
apply to States under Part B of the Act;
    (2) An assurance that, notwithstanding any other provision of Part B 
of the Act, it will use those funds only for the direct provision of 
special education and related services to children

[[Page 96]]

with disabilities and to enhance its capacity to make FAPE available to 
all children with disabilities;
    (3) The identity of the source and amount of funds, in addition to 
funds under Part B of the Act, that it will make available to ensure 
that FAPE is available to all children with disabilities within its 
jurisdiction; and
    (4) Such other information and assurances as the Secretary may 
require.
    (d) Termination of eligibility. Notwithstanding any other provision 
of law, the freely associated States may not receive any funds under 
Part B of the Act for any program year that begins after September 30, 
2001.
    (e) Administrative costs. The Secretary may provide not more than 
five percent of the amount reserved for grants under this section to pay 
the administrative costs of the Pacific Region Educational Laboratory 
under paragraph (b) of this section.
    (f) Eligibility for award. An outlying area is not eligible for a 
competitive award under Sec. 300.719 unless it receives assistance under 
Sec. 300.717(a).

(Authority: 20 U.S.C. 1411(b)(2) and (3))



Sec. 300.720  Special rule.

    The provisions of Public Law 95-134, permitting the consolidation of 
grants by the outlying areas, do not apply to funds provided to those 
areas or to the freely associated States under Part B of the Act.

(Authority: 20 U.S.C. 1411(b)(4))


Sec. 300.722  Definition.

    As used in this part, the term freely associated States means the 
Republic of the Marshall Islands, the Federated States of Micronesia, 
and the Republic of Palau.

(Authority: 20 U.S.C. 1411(b)(6))

                                 Reports



Sec. 300.750  Annual report of children served--report requirement.

    (a) The SEA shall report to the Secretary no later than February 1 
of each year the number of children with disabilities aged 3 through 21 
residing in the State who are receiving special education and related 
services.
    (b) The SEA shall submit the report on forms provided by the 
Secretary.

(Authority: 20 U.S.C. 1411(d)(2); 1418(a))



Sec. 300.751  Annual report of children served--information 
required in the report.

    (a) For any year the SEA shall include in its report a table that 
shows the number of children with disabilities receiving special 
education and related services on December 1, or at the State's 
discretion on the last Friday in October, of that school year--
    (1) Aged 3 through 5;
    (2) Aged 6 through 17; and
    (3) Aged 18 through 21.
    (b) For the purpose of this part, a child's age is the child's 
actual age on the date of the child count: December 1, or, at the 
State's discretion, the last Friday in October.
    (c) Reports must also include the number of those children with 
disabilities aged 3 through 21 for each year of age (3, 4, 5, etc.) 
within each disability category, as defined in the definition of 
``children with disabilities'' in Sec. 300.7; and
    (d) The Secretary may permit the collection of the data in paragraph 
(c) of this section through sampling.
    (e) The SEA may not report a child under paragraph (c) of this 
section under more than one disability category.
    (f) If a child with a disability has more than one disability, the 
SEA shall report that child under paragraph (c) of this section in 
accordance with the following procedure:
    (1) If a child has only two disabilities and those disabilities are 
deafness and blindness, and the child is not reported as having a 
developmental delay, that child must be reported under the category 
``deaf-blindness''.
    (2) A child who has more than one disability and is not reported as 
having deaf-blindness or as having a developmental delay must be 
reported under the category ``multiple disabilities''.

(Authority: 20 U.S.C. 1411(d)(2); 1418(a) and (b))

[[Page 97]]



Sec. 300.752  Annual report of children served--certification.

    The SEA shall include in its report a certification signed by an 
authorized official of the agency that the information provided under 
Sec. 300.751(a) is an accurate and unduplicated count of children with 
disabilities receiving special education and related services on the 
dates in question.

(Authority: 20 U.S.C. 1411(d)(2); 1417(b))



Sec. 300.753  Annual report of children served--criteria for 
counting children.

    (a) The SEA may include in its report children with disabilities who 
are enrolled in a school or program that is operated or supported by a 
public agency, and that--
    (1) Provides them with both special education and related services 
that meet State standards;
    (2) Provides them only with special education, if a related service 
is not required, that meets State standards; or
    (3) In the case of children with disabilities enrolled by their 
parents in private schools, provides them with special education or 
related services under Secs. 300.452-300.462 that meet State standards.
    (b) The SEA may not include children with disabilities in its report 
who are receiving special education funded solely by the Federal 
Government, including children served by the Department of Interior, the 
Department of Defense, or the Department of Education. However, the 
State may count children covered under Sec. 300.184(c)(2).

(Authority: 20 U.S.C. 1411(d)(2); 1417(b))



Sec. 300.754  Annual report of children served--other 
responsibilities of the SEA.

    In addition to meeting the other requirements of Secs. 300.750-
300.753, the SEA shall--
    (a) Establish procedures to be used by LEAs and other educational 
institutions in counting the number of children with disabilities 
receiving special education and related services;
    (b) Set dates by which those agencies and institutions must report 
to the SEA to ensure that the State complies with Sec. 300.750(a);
    (c) Obtain certification from each agency and institution that an 
unduplicated and accurate count has been made;
    (d) Aggregate the data from the count obtained from each agency and 
institution, and prepare the reports required under Secs. 300.750-
300.753; and
    (e) Ensure that documentation is maintained that enables the State 
and the Secretary to audit the accuracy of the count.

(Authority: 20 U.S.C. 1411(d)(2); 1417(b))



Sec. 300.755  Disproportionality.

    (a) General. Each State that receives assistance under Part B of the 
Act, and the Secretary of the Interior, shall provide for the collection 
and examination of data to determine if significant disproportionality 
based on race is occurring in the State or in the schools operated by 
the Secretary of the Interior with respect to--
    (1) The identification of children as children with disabilities, 
including the identification of children as children with disabilities 
in accordance with a particular impairment described in section 602(3) 
of the Act; and
    (2) The placement in particular educational settings of these 
children.
    (b) Review and revision of policies, practices, and procedures. In 
the case of a determination of significant disproportionality with 
respect to the identification of children as children with disabilities, 
or the placement in particular educational settings of these children, 
in accordance with paragraph (a) of this section, the State or the 
Secretary of the Interior shall provide for the review and, if 
appropriate revision of the policies, procedures, and practices used in 
the identification or placement to ensure that the policies, procedures, 
and practices comply with the requirements of Part B of the Act.

(Authority: 20 U.S.C. 1418(c))
 Sec. 300.756  Acquisition of equipment; construction or 
alteration of facilities.

    (a) General. If the Secretary determines that a program authorized 
under Part B of the Act would be improved by permitting program funds to 
be used to acquire appropriate equipment, or to

[[Page 98]]

construct new facilities or alter existing facilities, the Secretary may 
allow the use of those funds for those purposes.
    (b) Compliance with certain regulations. Any construction of new 
facilities or alteration of existing facilities under paragraph (a) of 
this section must comply with the requirements of--
    (1) Appendix A of part 36 of title 28, Code of Federal Regulations 
(commonly known as the ``Americans with Disabilities Accessibility 
Guidelines for Buildings and Facilities''); or
    (2) Appendix A of part 101-19.6 of title 41, Code of Federal 
Regulations (commonly known as the ``Uniform Federal Accessibility 
Standards'').

(Authority: 20 U.S.C. 1405)

            Appendix A to Part 300--Notice of Interpretation

   I. Involvement and Progress of Each Child With a Disability in the 
                           General Curriculum

    1. What are the major Part B IEP requirements that govern the 
involvement and progress of children with disabilities in the general 
curriculum?
    2. Must a child's IEP address his or her involvement in the general 
curriculum, regardless of the nature and severity of the child's 
disability and the setting in which the child is educated?
    3. What must public agencies do to meet the requirements at 
Secs. 300.344(a)(2) and 300.346(d) regarding the participation of a 
``regular education teacher'' in the development review, and revision of 
the IEPs, for children age 3 through 5 who are receiving special 
education and related services?
    4. Must the measurable annual goals in a child's IEP address all 
areas of the general curriculum, or only those areas in which the 
child's involvement and progress are affected by the child's disability?

                 II. Involvement of Parents and Students

    5. What is the role of the parents, including surrogate parents, in 
decisions regarding the educational program of their children?
    6. What are the Part B requirements regarding the participation of a 
student (child) with a disability in an IEP meeting?
    7. Must the public agency inform the parents of who will be at the 
IEP meeting?
    8. Do parents have the right to a copy of their child's IEP?
    9. What is a public agency's responsibility if it is not possible to 
reach consensus on what services should be included in a child's IEP?
    10. Does Part B require that public agencies inform parents 
regarding the educational progress of their children with disabilities?

III. Preparing Students With Disabilities for Employment and Other Post-
                           School Experiences

    11. What must the IEP team do to meet the requirements that the IEP 
include a statement of ``transition service needs'' beginning at age 14 
(Sec. 300.347(b)(1), and a statement of ``needed transition services'' 
beginning at age 16 (Sec. 300.347(b)(2)?
    12. Must the IEP for each student with a disability, beginning no 
later than age 16, include all ``needed transition services,'' as 
identified by the IEP team and consistent with the definition at 
Sec. 300.29, even if an agency other than the public agency will provide 
those services? What is the public agency's responsibility if another 
agency fails to provide agreed-upon transition services?
    13. Under what circumstances must a public agency invite 
representatives from other agencies to an IEP meeting at which a child's 
need for transition services will be considered?

          IV. Other Questions Regarding Implementation of Idea

    14. For a child with a disability receiving special education for 
the first time, when must an IEP be developed--before placement or after 
placement?
    15. Who is responsible for ensuring the development of IEPs for 
children with disabilities served by a public agency other than an LEA?
    16. For a child placed out of State by an educational or non-
educational State or local agency, is the placing or receiving State 
responsible for the child's IEP?
    17. If a disabled child has been receiving special education from 
one public agency and transfers to another public agency in the same 
State, must the new public agency develop an IEP before the child can be 
placed in a special education program?
    18. What timelines apply to the development and implementation of an 
initial IEP for a child with a disability?
    19. Must a public agency hold separate meetings to determine a 
child's eligibility for special education and related services, develop 
the child's IEP, and determine the child's placement, or may the agency 
meet all of these requirements in a single meeting?
    20. How frequently must a public agency conduct meetings to review, 
and if appropriate revise, the IEP for each child with a disability?
    21. May IEP meetings be audio or video-tape-recorded?

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    22. Who can serve as the representative of the public agency at an 
IEP meeting?
    23. For a child with a disability being considered for initial 
placement in special education, which teacher or teachers should attend 
the IEP meeting?
    24. What is the role of a regular education teacher in the 
development, review, and revision of the IEP for a child who is, or may 
be, participating in the regular education environment?
    25. If a child with a disability attends several regular classes, 
must all of the child's regular education teachers be members of the 
child's IEP team?
    26. How should a public agency determine which regular education 
teacher and special education teacher will members of the IEP team for a 
particular child with a disability?
    27. For a child whose primary disability is a speech impairment, may 
a public agency meet its responsibility under Sec. 300.344(a)(3) to 
ensure that the IEP team includes ``at least one special education 
teacher, or, if appropriate, at least one special education provider of 
the child'' by including a speech-language pathologist on the IEP team?
    28. Do public agencies and parents have the option of having any 
individual of their choice attend a child's IEP meeting as participants 
on their child's IEP team?
    29. Can parents or public agencies bring their attorneys to IEP 
meetings, and, if so under what circumstances? Are attorney's fees 
available for parents' attorneys if the parents are prevailing parties 
in actions or proceedings brought under Part B?
    30. Must related services personnel attend IEP meetings?
    31. Must the public agency ensure that all services specified in a 
child's IEP are provided?
    32. Is it permissible for an agency to have the IEP completed before 
the IEP meeting begins?
    33. Must a public agency include transportation in a child's IEP as 
a related service?
    34. Must a public agency provide related services that are required 
to assist a child with a disability to benefit from special education, 
whether or not those services are included in the list of related 
services in Sec. 300.24?
    35. Must the IEP specify the amount of services or may it simply 
list the services to be provided?
    36. Under what circumstances is a public agency required to permit a 
child with a disability to use a school-purchased assistive technology 
device in the child's home or in another setting?
    37. Can the IEP team also function as the group making the placement 
decision for a child with a disability?
    38. If a child's IEP includes behavioral strategies to address a 
particular behavior, can a child ever be suspended for engaging in that 
behavior?
    39. If a child's behavior in the regular classroom, even with 
appropriate interventions, would significantly impair the learning of 
others, can the group that makes the placement decision determine that 
placement in the regular classroom is inappropriate for that child?
    40. May school personnel during a school year implement more than 
one short-term removal of a child with disabilities from his or her 
classroom or school for misconduct?

Authority:
    Part B of the Individuals with Disabilities Education Act (20 U.S.C. 
1401, et seq.), unless otherwise noted.

      Individualized Education Programs (IEPS) and Other Selected 
                          ImplementatioN Issues

    Interpretation of IEP and Other selected Requirements under Part B 
of the Individuals with Disabilities Education Act (IDEA; Part B)

                              Introduction

    The IEP requirements under Part B of the IDEA emphasize the 
importance of three core concepts: (1) the involvement and progress of 
each child with a disability in the general curriculum including 
addressing the unique needs that arise out of the child's disability; 
(2) the involvement of parents and students, together with regular and 
special education personnel, in making individual decisions to support 
each student's (child's) educational success, and (3) the preparation of 
students with disabilities for employment and other post-school 
activities.
    The first three sections of this Appendix (I-III) provide guidance 
regarding the IEP requirements as they relate to the three core concepts 
described above. Section IV addresses other questions regarding the 
development and content of IEPs, including questions about the timelines 
and responsibility for developing and implementing IEPs, participation 
in IEP meetings, and IEP content. Section IV also addresses questions on 
other selected requirements under IDEA.

   I. Involvement and Progress of Each Child With a Disability in the 
                           General Curriculum

    In enacting the IDEA Amendments of 1997, the Congress found that 
research, demonstration, and practice over the past 20 years in special 
education and related disciplines have demonstrated that an effective 
educational system now and in the future must maintain high academic 
standards and clear performance goals for children with disabilities, 
consistent with the standards and expectations for all students in the 
educational system, and provide for appropriate

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and effective strategies and methods to ensure that students who are 
children with disabilities have maximum opportunities to achieve those 
standards and goals. [Section 651(a)(6)(A) of the Act.]
    Accordingly, the evaluation and IEP provisions of Part B place great 
emphasis on the involvement and progress of children with disabilities 
in the general curriculum. (The term ``general curriculum,'' as used in 
these regulations, including this Appendix, refers to the curriculum 
that is used with nondisabled children.)
    While the Act and regulations recognize that IEP teams must make 
individualized decisions about the special education and related 
services, and supplementary aids and services, provided to each child 
with a disability, they are driven by IDEA's strong preference that, to 
the maximum extent appropriate, children with disabilities be educated 
in regular classes with their nondisabled peers with appropriate 
supplementary aids and services.
    In many cases, children with disabilities will need appropriate 
supports in order to successfully progress in the general curriculum, 
participate in State and district-wide assessment programs, achieve the 
measurable goals in their IEPs, and be educated together with their 
nondisabled peers. Accordingly, the Act requires the IEP team to 
determine, and the public agency to provide, the accommodations, 
modifications, supports, and supplementary aids and services, needed by 
each child with a disability to successfully be involved in and progress 
in the general curriculum achieve the goals of the IEP, and successfully 
demonstrate his or her competencies in State and district-wide 
assessments.
    1. What are the major Part B IEP requirements that govern the 
involvement and progress of children with disabilities in the general 
curriculum?

                Present Levels of Educational Performance

    Section 300.347(a)(1) requires that the IEP for each child with a 
disability include ``* * * 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; 
or (ii) for preschool children, as appropriate, how the child's 
disability affects the child's participation in appropriate activities * 
* *'' (``Appropriate activities'' in this context refers to age-relevant 
developmental abilities or milestones that typically developing children 
of the same age would be performing or would have achieved.)
    The IEP team's determination of how each child's disability affects 
the child's involvement and progress in the general curriculum is a 
primary consideration in the development of the child's IEP. In 
assessing children with disabilities, school districts may use a variety 
of assessment techniques to determine the extent to which these children 
can be involved and progress in the general curriculum, such as 
criterion-referenced tests, standard achievement tests, diagnostic 
tests, other tests, or any combination of the above.
    The purpose of using these assessments is to determine the child's 
present levels of educational performance and areas of need arising from 
the child's disability so that approaches for ensuring the child's 
involvement and progress in the general curriculum and any needed 
adaptations or modifications to that curriculum can be identified.
    Measurable Annual Goals, including Benchmarks or Short-term 
ojectives
    Measurable annual goals, including benchmarks or short-term 
objectives, are critical to the strategic planning process used to 
develop and implement the IEP for each child with a disability. Once the 
IEP team has developed measurable annual goals for a child, the team (1) 
can develop strategies that will be most effective in realizing those 
goals and (2) must develop either measurable, intermediate steps (short-
term objectives) or major milestones (benchmarks) that will enable 
parents, students, and educators to monitor progress during the year, 
and, if appropriate, to revise the IEP consistent with the student's 
instructional needs.
    The strong emphasis in Part B on linking the educational program of 
children with disabilities to the general curriculum is reflected in 
Sec. 300.347(a)(2), which requires that the IEP include:

    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; and (ii) meeting each of the 
child's other educational needs that result from the child's disability.
    As noted above, each annual goal must include either short-term 
objectives or benchmarks. The purpose of both is to enable a child's 
teacher(s), parents, and others involved in developing and implementing 
the child's IEP, to gauge, at intermediate times during the year, how 
well the child is progressing toward achievement of the annual goal. IEP 
teams may continue to develop short-term instructional objectives, that 
generally break the skills described in the annual goal down into 
discrete components. The revised statute and regulations also provide 
that, as an alternative, IEP teams may develop benchmarks, which can be 
thought of as describing the amount of progress the child is expected to 
make within specified segments of the year. Generally, benchmarks 
establish expected performance levels that allow for regular checks of 
progress that coincide with the reporting periods for informing parents 
of their child's progress toward achieving the annual goals. An IEP team

[[Page 101]]

may use either short term objectives or benchmarks or a combination of 
the two depending on the nature of the annual goals and the needs of the 
child.

   Special Education and Related Services and Supplementary Aids and 
                                Services

    The requirements regarding services provided to address a child's 
present levels of educational performance and to make progress toward 
the identified goals reinforce the emphasis on progress in the general 
curriculum, as well as maximizing the extent to which children with 
disabilities are educated with nondisabled children. Section 
300.347(a)(3) requires that the IEP include:

    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 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 * * * 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 [extracurricular and other nonacademic 
activities] * * * [Italics added.]

    Extent to Which Child Will Participate With Nondisabled Children

    Section 300.347(a)(4) requires that each child's IEP include ``An 
explanation of the extent, if any, to which the child will not 
participate with nondisabled children in the regular class and in 
[extracurricular and other nonacademic] activities * * *'' This is 
consistent with the least restrictive environment (LRE) provisions at 
Secs. 300.550-300.553, which include requirements that:
    (1) each child with a disability be educated with nondisabled 
children to the maximum extent appropriate (Sec. 300.550(b)(1));
    (2) each child with a disability be removed from the regular 
educational environment only when the nature or severity of the child's 
disability is such that education in regular classes with the use of 
supplementary aids and services cannot be achieved satisfactorily 
(Sec. 300.550(b)(1)); and
    (3) to the maximum extent appropriate to the child's needs, each 
child with a disability participates with nondisabled children in 
nonacademic and extracurricular services and activities (Sec. 300.553).
    All services and educational placements under Part B must be 
individually determined in light of each child's unique abilities and 
needs, to reasonably promote the child's educational success. Placing 
children with disabilities in this manner should enable each disabled 
child to meet high expectations in the future.
    Although Part B requires that a child with a disability not be 
removed from the regular educational environment if the child's 
education can be achieved satisfactorily in regular classes with the use 
of supplementary aids and services, Part B's LRE principle is intended 
to ensure that a child with a disability is served in a setting where 
the child can be educated successfully. Even though IDEA does not 
mandate regular class placement for every disabled student, IDEA 
presumes that the first placement option considered for each disabled 
student by the student's placement team, which must include the parent, 
is the school the child would attend if not disabled, with appropriate 
supplementary aids and services to facilitate such placement. Thus, 
before a disabled child can be placed outside of the regular educational 
environment, the full range of supplementary aids and services that if 
provided would facilitate the student's placement in the regular 
classroom setting must be considered. Following that consideration, if a 
determination is made that particular disabled student cannot be 
educated satisfactorily in the regular educational environment, even 
with the provision of appropriate supplementary aids and services, that 
student then could be placed in a setting other than the regular 
classroom. Later, if it becomes apparent that the child's IEP can be 
carried out in a less restrictive setting, with the provision of 
appropriate supplementary aids and services, if needed, Part B would 
require that the child's placement be changed from the more restrictive 
setting to a less restrictive setting. In all cases, placement decisions 
must be individually determined on the basis of each child's abilities 
and needs, and not solely on factors such as category of disability, 
significance of disability, availability of special education and 
related services, configuration of the service delivery system, 
availability of space, or administrative convenience. Rather, each 
student's IEP forms the basis for the placement decision.
    Further, a student need not fail in the regular classroom before 
another placement can be considered. Conversely, IDEA does not require 
that a student demonstrate achievement of a specific performance level 
as a prerequisite for placement into a regular classroom.

     Participation in State or District-Wide Assessments of Student 
                               Achievement

    Consistent with Sec. 300.138(a), which sets forth a presumption that 
children with disabilities will be included in general State and 
district-wide assessment programs, and provided with appropriate 
accommodations if necessary, Sec. 300.347(a)(5) requires that the IEP 
for each student with a disability include: ``(i) a statement of any 
individual

[[Page 102]]

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 of student achievement), a statement of--(A) Why that 
assessment is not appropriate for the child; and (B) How the child will 
be assessed.''

Regular Education Teacher Participation in the Development, Review, and Revision of IEPs
Very often, regular education teachers play a central role in the education of children with disabilities (H. Rep. No. 105-95, p. 103 (1997); S. Rep. No. 105-17, p. 23 (1997)) and have important expertise regarding the general curriculum and the general education environment. Further, with the emphasis on involvement and progress in the general curriculum added by the IDEA Amendments of 1997, regular education teachers have an increasingly critical role (together with special education and related services personnel) in implementing the program of FAPE for most children with disabilities, as described in their IEPs. Accordingly, the IDEA Amendments of 1997 added a requirement that each child's IEP team must include at least one regular education teacher of the child, if the child is, or may be, participating in the regular education environment (see Sec. 300.344(a)(2)). (See also Secs. 300.346(d) on the role of a regular education teacher in the development, review and revision of IEPs.) 2. Must a child's IEP address his or her involvement in the general curriculum, regardless of the nature and severity of the child's disability and the setting in which the child is educated? Yes. The IEP for each child with a disability (including children who are educated in separate classrooms or schools) must address how the child will be involved and progress in the general curriculum. However, the Part B regulations recognize that some children have other educational needs resulting from their disability that also must be met, even though those needs are not directly linked to participation in the general curriculum. Accordingly, Sec. 300.347(a)(1)(2) requires that each child's IEP include: 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; and (ii) meeting each of the child's other educational needs that result from the child's disability. [Italics added.] Thus, the IEP team for each child with a disability must make an individualized determination regarding (1) how the child will be involved and progress in the general curriculum and what needs that result from the child's disability must be met to facilitate that participation; (2) whether the child has any other educational needs resulting from his or her disability that also must be met; and (3) what special education and other services and supports must be described in the child's IEP to address both sets of needs (consistent with Sec. 300.347(a)). For example, if the IEP team determines that in order for a child who is deaf to participate in the general curriculum he or she needs sign language and materials which reflect his or her language development, those needs (relating to the child's participation in the general curriculum) must be addressed in the child's IEP. In addition, if the team determines that the child also needs to expand his or her vocabulary in sign language that service must also be addressed in the applicable components of the child's IEP. The IEP team may also wish to consider whether there is a need for members of the child's family to receive training in sign language in order for the child to receive FAPE. 3. What must public agencies do to meet the requirements at Secs. 300.344(a)(2) and 300.346(d) regarding the participation of a ``regular education teacher'' in the development, review, and revision of IEPs, for children aged 3 through 5 who are receiving preschool special education services? If a public agency provides ``regular education'' preschool services to non-disabled children, then the requirements of Secs. 300.344(a)(2) and 300.346(d) apply as they do in the case of older children with disabilities. If a public agency makes kindergarten available to nondisabled children, then a regular education kindergarten teacher could appropriately be the regular education teacher who would be a member of the IEP team, and, as appropriate, participate in IEP meetings, for a kindergarten-aged child who is, or may be, participating in the regular education environment. If a public agency does not provide regular preschool education services to nondisabled children, the agency could designate an individual who, under State standards, is qualified to serve nondisabled children of the same age. 4. Must the measurable annual goals in a child's IEP address all areas of the general curriculum, or only those areas in which the child's involvement and progress are affected by the child's disability? Section 300.347(a)(2) requires that each child's IEP include ``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 * * *; and [[Page 103]] (ii) meeting each of the child's other educational needs that result from the child's disability. . . .'' (Italics added). Thus, a public agency is not required to include in an IEP annual goals that relate to areas of the general curriculum in which the child's disability does not affect the child's ability to be involved in and progress in the general curriculum. If a child with a disability needs only modifications or accommodations in order to progress in an area of the general curriculum, the IEP does not need to include a goal for that area; however, the IEP would need to specify those modifications or accommodations. Public agencies often require all children, including children with disabilities, to demonstrate mastery in a given area of the general curriculum before allowing them to progress to the next level or grade in that area. Thus, in order to ensure that each child with a disability can effectively demonstrate competencies in an applicable area of the general curriculum, it is important for the IEP team to consider the accommodations and modifications that the child needs to assist him or her in demonstrating progress in that area. II. Involvement of Parents and Students The Congressional Committee Reports on the IDEA Amendments of 1997 express the view that the Amendments provide an opportunity for strengthening the role of parents, and emphasize that one of the purposes of the Amendments is to expand opportunities for parents and key public agency staff (e.g., special education, related services, regular education, and early intervention service providers, and other personnel) to work in new partnerships at both the State and local levels (H. Rep. 105-95, p. 82 (1997); S. Rep. No. 105-17, p. 4 and 5 (1997)). Accordingly, the IDEA Amendments of 1997 require that parents have an opportunity to participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of FAPE to the child. (Sec. 300.501(a)(2)). Thus, parents must now be part of: (1) the group that determines what additional data are needed as part of an evaluation of their child (Sec. 300.533(a)(1)); (2) the team that determines their child's eligibility (Sec. 300.534(a)(1)); and (3) the group that makes decisions on the educational placement of their child (Sec. 300.501(c)). In addition, the concerns of parents and the information that they provide regarding their children must be considered in developing and reviewing their children's IEPs (Secs. 300.343(c)(iii) and 300.346(a)(1)(i) and (b)); and the requirements for keeping parents informed about the educational progress of their children, particularly as it relates to their progress in the general curriculum, have been strengthened (Sec. 300.347(a)(7)). The IDEA Amendments of 1997 also contain provisions that greatly strengthen the involvement of students with disabilities in decisions regarding their own futures, to facilitate movement from school to post- school activities. For example, those amendments (1) retained, essentially verbatim, the ``transition services'' requirements from the IDEA Amendments of 1990 (which provide that a statement of needed transition services must be in the IEP of each student with a disability, beginning no later than age 16); and (2) significantly expanded those provisions by adding a new annual requirement for the IEP to include ``transition planning'' activities for students beginning at age 14. (See section IV of this appendix for a description of the transition services requirements and definition.) With respect to student involvement in decisions regarding transition services, Sec. 300.344(b) provides that (1) ``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); or (ii) The needed transition services for the student under Sec. 300.347(b)(2); or (iii) Both;'' and (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.'' (Sec. 300.344(b)(2)). The IDEA Amendments of 1997 also give States the authority to elect to transfer the rights accorded to parents under Part B to each student with a disability upon reaching the age of majority under State law (if the student has not been determined incompetent under State law) (Sec. 300.517). (Part B requires that if the rights transfer to the student, the public agency must provide any notice required under Part B to both the student and the parents.) If the State elects to provide for the transfer of rights from the parents to the student at the age of majority, the IEP must, beginning at least one year before a student reaches the age of majority under State law, include a statement that the student has been informed of any rights that will transfer to him or her upon reaching the age of majority. (Sec. 300.347(c)). The IDEA Amendments of 1997 also permit, but do not require, States to establish a procedure for appointing the parent, or another appropriate individual if the parent is not available, to represent the educational interests of a student with a disability who has reached the age of majority under State law and has not been determined to be incompetent, but who is determined not to have the ability to provide informed consent with respect to his or her educational program. 5. What is the role of the parents, including surrogate parents, in decisions regarding the educational program of their children? [[Page 104]] The parents of a child with a disability are expected to be equal participants along with school personnel, in developing, reviewing, and revising the IEP for their child. This is an active role in which the parents (1) provide critical information regarding the strengths of their child and express their concerns for enhancing the education of their child; (2) participate in discussions about the child's need for special education and related services and supplementary aids and services; and (3) join with the other participants in deciding how the child will be involved and progress in the general curriculum and participate in State and district-wide assessments, and what services the agency will provide to the child and in what setting. As previously noted in the introduction to section II of this Appendix, Part B specifically provides that parents of children with disabilities-- Have an opportunity to participate in meetings with respect to the identification, evaluation, and educational placement of their child, and the provision of FAPE to the child (including IEP meetings) (Secs. 300.501(b), 300.344(a)(1), and 300.517; Be part of the groups that determine what additional data are needed as part of an evaluation of their child (Sec. 300.533(a)(1)), and determine their child's eligibility (Sec. 300.534(a)(1)) and educational placement (Sec. 300.501(c)); Have their concerns and the information that they provide regarding their child considered in developing and reviewing their child's IEPs (Secs. 300.343(c)(iii) and 300.346(a)(1)(i) and (b)); and Be regularly informed (by such means as periodic report cards), as specified in their child's IEP, at least as often as parents are informed of their nondisabled children's progress, of their child's progress toward the annual goals in the IEP and the extent to which that progress is sufficient to enable the child to achieve the goals by the end of the year (Sec. 300.347(a)(7)). A surrogate parent is a person appointed to represent the interests of a child with a disability in the educational decision-making process when no parent (as defined at Sec. 300.20) is known, the agency, after reasonable efforts, cannot locate the child's parents, or the child is a ward of the State under the laws of the State. A surrogate parent has all of the rights and responsibilities of a parent under Part B (Sec. 300.515.) 6. What are the Part B requirements regarding the participation of a student (child) with a disability in an IEP meeting? If a purpose of an IEP meeting for a student with a disability will be the consideration of the student's transition services needs or needed transition services under Sec. 300.347(b)(1) or (2), or both, the public agency must invite the student and, as part of the notification to the parents of the IEP meeting, inform the parents that the agency will invite the student to the IEP meeting. If the student does not attend, the public agency must take other steps to ensure that the student's preferences and interests are considered. (See Sec. 300.344(b)). Section Sec. 300.517 permits, but does not require, States to transfer procedural rights under Part B from the parents to students with disabilities who reach the age of majority under State law, if they have not been determined to be incompetent under State law. If those rights are to be transferred from the parents to the student, the public agency would be required to ensure that the student has the right to participate in IEP meetings set forth for parents in Sec. 300.345. However, at the discretion of the student or the public agency, the parents also could attend IEP meetings as ``* * * individuals who have knowledge or special expertise regarding the child * * *'' (see Sec. 300.344(a)(6)). In other circumstances, a child with a disability may attend ``if appropriate.'' (Sec. 300.344(a)(7)). Generally, a child with a disability should attend the IEP meeting if the parent decides that it is appropriate for the child to do so. If possible, the agency and parents should discuss the appropriateness of the child's participation before a decision is made, in order to help the parents determine whether or not the child's attendance would be (1) helpful in developing the IEP or (2) directly beneficial to the child or both. The agency should inform the parents before each IEP meeting--as part of notification under Sec. 300.345(a)(1)--that they may invite their child to participate. 7. Must the public agency inform the parents of who will be at the IEP meeting? Yes. In notifying parents about the meeting, the agency ``must indicate the purpose, time, and location of the meeting, and who will be in attendance.'' (Sec. 300.345(b), italics added.) In addition, if a purpose of the IEP meeting will be the consideration of a student's transition services needs or needed transition services under Sec. 300.347(b)(1) or (2) or both, the notice must also inform the parents that the agency is inviting the student, and identify any other agency that will be invited to send a representative. The public agency also must inform the parents of the right of the parents and the agency to invite other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate to be members of the IEP team. (Sec. 300.345(b)(1)(ii).) It also may be appropriate for the agency to ask the parents to inform the agency of any individuals the parents will be bringing to the meeting. Parents are encouraged to let the agency know whom they intend to [[Page 105]] bring. Such cooperation can facilitate arrangements for the meeting, and help ensure a productive, child-centered meeting. 8. Do parents have the right to a copy of their child's IEP? Yes. Section 300.345(f) states that the public agency shall give the parent a copy of the IEP at no cost to the parent. 9. What is a public agency's responsibility if it is not possible to reach consensus on what services should be included in a child's IEP? The IEP meeting serves as a communication vehicle between parents and school personnel, and enables them, as equal participants, to make joint, informed decisions regarding the (1) child's needs and appropriate goals; (2) extent to which the child will be involved in the general curriculum and participate in the regular education environment and State and district-wide assessments; and (3) services needed to support that involvement and participation and to achieve agreed-upon goals. Parents are considered equal partners with school personnel in making these decisions, and the IEP team must consider the parents' concerns and the information that they provide regarding their child in developing, reviewing, and revising IEPs (Secs. 300.343(c)(iii) and 300.346(a)(1) and (b)). The IEP team should work toward consensus, but the public agency has ultimate responsibility to ensure that the IEP includes the services that the child needs in order to receive FAPE. It is not appropriate to make IEP decisions based upon a majority ``vote.'' If the team cannot reach consensus, the public agency must provide the parents with prior written notice of the agency's proposals or refusals, or both, regarding the child's educational program, and the parents have the right to seek resolution of any disagreements by initiating an impartial due process hearing. Every effort should be made to resolve differences between parents and school staff through voluntary mediation or some other informal step, without resort to a due process hearing. However, mediation or other informal procedures may not be used to deny or delay a parent's right to a due process hearing, or to deny any other rights afforded under Part B. 10. Does Part B require that public agencies inform parents regarding the educational progress of their children with disabilities? Yes. The Part B statute and regulations include a number of provisions to help ensure that parents are involved in decisions regarding, and are informed about, their child's educational progress, including the child's progress in the general curriculum. First, the parents will be informed regarding their child's present levels of educational performance through the development of the IEP. Section 300.347(a)(1) requires that each IEP include: * * * 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; or (ii) for preschool children, as appropriate, how the disability affects the child's participation in appropriate activities * * * Further, Sec. 300.347(a)(7) sets forth new requirements for regularly informing parents about their child's educational progress, as regularly as parents of nondisabled children are informed of their child's progress. That section requires that the IEP include: A statement of--(i) How the child's progress toward the annual goals * * * will be measured; and (ii) how the child's parents will be regularly informed (by 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. One method that public agencies could use in meeting this requirement would be to provide periodic report cards to the parents of students with disabilities that include both (1) the grading information provided for all children in the agency at the same intervals; and (2) the specific information required by Sec. 300.347(a)(7)(ii)(A) and (B). Finally, the parents, as part of the IEP team, will participate at least once every 12 months in a review of their child's educational progress. Section 300.343(c) requires that a public agency initiate and conduct a meeting, at which 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 * * * and in the general curriculum, if appropriate; (ii) The results of any reevaluation * * *; (iii) Information about the child provided to, or by, the parents * * *; (iv) The child's anticipated needs; or (v) Other matters. III. Preparing Students With Disabilities for Employment and Other Post- School Experiences One of the primary purposes of the IDEA is to ``* * * ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living * * *'' (Sec. 300.1(a)). Section 701 of the Rehabilitation Act of 1973 describes the philosophy of independent living as including a philosophy [[Page 106]] of consumer control, peer support, self-help, self-determination, equal access, and individual and system advocacy, in order to maximize the leadership, empowerment, independence, and productivity of individuals with disabilities, and the integration and full inclusion of individuals with disabilities into the mainstream of American society. Because many students receiving services under IDEA will also receive services under the Rehabilitation Act, it is important, in planning for their future, to consider the impact of both statutes. Similarly, one of the key purposes of the IDEA Amendments of 1997 was to ``promote improved educational results for children with disabilities through early intervention, preschool, and educational experiences that prepare them for later educational challenges and employment.'' (H. Rep. No. 105-95, p. 82 (1997); S. Rep. No. 105-17, p. 4 (1997)). Thus, throughout their preschool, elementary, and secondary education, the IEPs for children with disabilities must, to the extent appropriate for each individual child, focus on providing instruction and experiences that enable the child to prepare himself or herself for later educational experiences and for post-school activities, including formal education, if appropriate, employment, and independent living. Many students with disabilities will obtain services through State vocational rehabilitation programs to ensure that their educational goals are effectively implemented in post-school activities. Services available through rehabilitation programs are consistent with the underlying purpose of IDEA. Although preparation for adult life is a key component of FAPE throughout the educational experiences of students with disabilities, Part B sets forth specific requirements related to transition planning and transition services that must be implemented no later than ages 14 and 16, respectively, and which require an intensified focus on that preparation as these students begin and prepare to complete their secondary education. 11. What must the IEP team do to meet the requirements that the IEP include ``a statement of * * * transition service needs'' beginning at age 14 (Sec. 300.347(b)(1)(i)),'' and a statement of needed transition services'' no later than age 16 (Sec. 300.347(b)(2)? Section 300.347(b)(1) requires that, beginning no later than age 14, each student's IEP include specific transition-related content, and, beginning no later than age 16, a statement of needed transition services: Beginning at age 14 and younger if appropriate, and updated annually, each student's IEP must include: ``* * * 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)'' (Sec. 300.347(b)(1)(i)). Beginning at age 16 (or younger, if determined appropriate by the IEP team), each student's IEP must include: ``* * * a statement of needed transition services for the student, including, if appropriate, a statement of the interagency responsibilities or any needed linkages.'' (Sec. 300.347(b)(2)). The Committee Reports on the IDEA Amendments of 1997 make clear that the requirement added to the statute in 1997 that beginning at age 14, and updated annually, the IEP include ``a statement of the transition service needs'' is ``* * * designed to augment, and not replace,'' the separate, preexisting requirement that the IEP include, ``* * * beginning at age 16 (or younger, if determined appropriate by the IEP team), a statement of needed transition services * * *'' (H. Rep. No. 105-95, p. 102 (1997); S. Rep. No. 105-17, p. 22 (1997)). As clarified by the Reports, ``The purpose of [the requirement in Sec. 300.347(b)(1)(i)] is to focus attention on how the child's educational program can be planned to help the child make a successful transition to his or her goals for life after secondary school.'' (H. Rep. No. 105-95, pp. 101-102 (1997); S. Rep. No. 105-17, p. 22 (1997)). The Reports further explain that ``[F]or example, for a child whose transition goal is a job, a transition service could be teaching the child how to get to the job site on public transportation.'' (H. Rep. No. 105-95, p. 102 (1997); S. Rep. No. 105-17, p. 22 (1997)). Thus, beginning at age 14, the IEP team, in determining appropriate measurable annual goals (including benchmarks or short-term objectives) and services for a student, must determine what instruction and educational experiences will assist the student to prepare for transition from secondary education to post-secondary life. The statement of transition service needs should relate directly to the student's goals beyond secondary education, and show how planned studies are linked to these goals. For example, a student interested in exploring a career in computer science may have a statement of transition services needs connected to technology course work, while another student's statement of transition services needs could describe why public bus transportation training is important for future independence in the community. Although the focus of the transition planning process may shift as the student approaches graduation, the IEP team must discuss specific areas beginning at least at the age of 14 years and review these areas annually. As noted in the Committee Reports, a disproportionate number of students with disabilities drop out of school before they complete their secondary education: ``Too many students with disabilities are failing courses and dropping out of school. Almost [[Page 107]] twice as many students with disabilities drop out as compared to students without disabilities.'' (H. Rep. No. 105-95, p. 85 (1997), S. Rep. No. 105-17, p. 5 (1997).) To help reduce the number of students with disabilities that drop out, it is important that the IEP team work with each student with a disability and the student's family to select courses of study that will be meaningful to the student's future and motivate the student to complete his or her education. This requirement is distinct from the requirement, at Sec. 300.347(b)(2), that the IEP include: * * * beginning at age 16 (or younger, if determined appropriate by the IEP team), a statement of needed transition services for the child, including, if appropriate, a statement of the interagency responsibilities or any needed linkages. The term ``transition services'' is defined at Sec. 300.29 to mean: * * * a coordinated set of activities for a student with a disability that--(1) Is designed within an outcome-oriented process, that promotes movement from school to post-school activities, including postsecondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation; (2) Is based on the individual student's needs, taking into account the student's preferences and interests; and (3) Includes--(i) Instruction; (ii) Related services; (iii) Community experiences; (iv) The development of employment and other post-school adult living objectives; and (v) If appropriate, acquisition of daily living skills and functional vocational evaluation. Thus, while Sec. 300.347(b)(1) requires that the IEP team begin by age 14 to address the student's need for instruction that will assist the student to prepare for transition, the IEP must include by age 16 a statement of needed transition services under Sec. 300.347(b)(2) that includes a ``coordinated set of activities * * *, designed within an outcome-oriented process, that promotes movement from school to post- school activities * * *.'' (Sec. 300.29) Section 300.344(b)(3) further requires that, in implementing Sec. 300.347(b)(1), public agencies (in addition to required participants for all IEP meetings), must also invite a representative of any other agency that is likely to be responsible for providing or paying for transition services. Thus, Sec. 300.347(b)(2) requires a broader focus on coordination of services across, and linkages between, agencies beyond the SEA and LEA. 12. Must the IEP for each student with a disability, beginning no later than age 16, include all ``needed transition services,'' as identified by the IEP team and consistent with the definition at Sec. 300.29, even if an agency other than the public agency will provide those services? What is the public agency's responsibility if another agency fails to provide agreed-upon transition services? Section 300.347(b)(2) requires that the IEP for each child with a disability, beginning no later than age 16, or younger if determined appropriate by the IEP team, include all ``needed transition services,'' as identified by the IEP team and consistent with the definition at Sec. 300.29, regardless of whether the public agency or some other agency will provide those services. Section 300.347(b)(2) specifically requires that the statement of needed transition services include, ``* * * if appropriate, a statement of the interagency responsibilities or any needed linkages.'' Further, the IDEA Amendments of 1997 also permit an LEA to use up to five percent of the Part B funds it receives in any fiscal year in combination with other amounts, which must include amounts other than education funds, to develop and implement a coordinated services system. These funds may be used for activities such as: (1) linking IEPs under Part B and Individualized Family Service Plans (IFSPs) under Part C, with Individualized Service Plans developed under multiple Federal and State programs, such as Title I of the Rehabilitation Act; and (2) developing and implementing interagency financing strategies for the provision of services, including transition services under Part B. The need to include, as part of a student's IEP, transition services to be provided by agencies other than the public agency is contemplated by Sec. 300.348(a), which specifies what the public agency must do if another agency participating in the development of the statement of needed transition services fails to provide a needed transition service that it had agreed to provide. If an agreed-upon service by another agency is not provided, the public agency responsible for the student's education must implement alternative strategies to meet the student's needs. This requires that the public agency provide the services, or convene an IEP meeting as soon as possible to identify alternative strategies to meet the transition services objectives, and to revise the IEP accordingly. Alternative strategies might include the identification of another funding source, referral to another agency, the public agency's identification of other district-wide or community resources that it can use to meet the student's identified needs appropriately, or a combination of these strategies. As emphasized by Sec. 300.348(b), however: Nothing in [Part B] relieves any participating agency, including a State vocational rehabilitation agency, of the responsibility to provide or pay for any transition service [[Page 108]] that the agency would otherwise provide to students with disabilities who meet the eligibility criteria of that agency. However, the fact that an agency other than the public agency does not fulfill its responsibility does not relieve the public agency of its responsibility to ensure that FAPE is available to each student with a disability. (Section 300.142(b)(2) specifically requires that if an agency other than the LEA fails to provide or pay for a special education or related service (which could include a transition service), the LEA must, without delay, provide or pay for the service, and may then claim reimbursement from the agency that failed to provide or pay for the service.) 13. Under what circumstances must a public agency invite representatives from other agencies to an IEP meeting at which a child's need for transition services will be considered? Section 300.344 requires that, ``In implementing the requirements of [Sec. 300.347(b)(1)(ii) requiring a statement of needed transition services], the public agency shall also invite a representative of any other agency that is likely to be responsible for providing or paying for transition services.'' To meet this requirement, the public agency must identify all agencies that are ``likely to be responsible for providing or paying for transition services'' for each student addressed by Sec. 300.347(b)(1), and must invite each of those agencies to the IEP meeting; and if an agency invited to send a representative to a meeting does not do so, the public agency must take other steps to obtain the participation of that agency in the planning of any transition services. If, during the course of an IEP meeting, the team identifies additional agencies that are ``likely to be responsible for providing or paying for transition services'' for the student, the public agency must determine how it will meet the requirements of Sec. 300.344. IV. Other Questions Regarding the Development and Content of IEPS 14. For a child with a disability receiving special education for the first time, when must an IEP be developed--before or after the child begins to receive special education and related services? Section 300.342(b)(1) requires that an IEP be ``in effect before special education and related services are provided to an eligible child * * *'' (Italics added.) The appropriate placement for a particular child with a disability cannot be determined until after decisions have been made about the child's needs and the services that the public agency will provide to meet those needs. These decisions must be made at the IEP meeting, and it would not be permissible first to place the child and then develop the IEP. Therefore, the IEP must be developed before placement. (Further, the child's placement must be based, among other factors, on the child's IEP.) This requirement does not preclude temporarily placing an eligible child with a disability in a program as part of the evaluation process-- before the IEP is finalized--to assist a public agency in determining the appropriate placement for the child. However, it is essential that the temporary placement not become the final placement before the IEP is finalized. In order to ensure that this does not happen, the State might consider requiring LEAs to take the following actions: a. Develop an interim IEP for the child that sets out the specific conditions and timelines for the trial placement. (See paragraph c, following.) b. Ensure that the parents agree to the interim placement before it is carried out, and that they are involved throughout the process of developing, reviewing, and revising the child's IEP. c. Set a specific timeline (e.g., 30 days) for completing the evaluation, finalizing the IEP, and determining the appropriate placement for the child. d. Conduct an IEP meeting at the end of the trial period in order to finalize the child's IEP. 15. Who is responsible for ensuring the development of IEPs for children with disabilities served by a public agency other than an LEA? The answer as to which public agency has direct responsibility for ensuring the development of IEPs for children with disabilities served by a public agency other than an LEA will vary from State to State, depending upon State law, policy, or practice. The SEA is ultimately responsible for ensuring that all Part B requirements, including the IEP requirements, are met for eligible children within the State, including those children served by a public agency other than an LEA. Thus, the SEA must ensure that every eligible child with a disability in the State has FAPE available, regardless of which State or local agency is responsible for educating the child. (The only exception to this responsibility is that the SEA is not responsible for ensuring that FAPE is made available to children with disabilities who are convicted as adults under State law and incarcerated in adult prisons, if the State has assigned that responsibility to a public agency other than the SEA. (See Sec. 300.600(d)). Although the SEA has flexibility in deciding the best means to meet this obligation (e.g., through interagency agreements), the SEA must ensure that no eligible child with a disability is denied FAPE due to jurisdictional disputes among agencies. When an LEA is responsible for the education of a child with a disability, the LEA remains responsible for developing the [[Page 109]] child's IEP, regardless of the public or private school setting into which it places the child. 16. For a child placed out of State by an educational or non- educational State or local agency, is the placing or receiving State responsible for the child's IEP? Regardless of the reason for the placement, the ``placing'' State is responsible for ensuring that the child's IEP is developed and that it is implemented. The determination of the specific agency in the placing State that is responsible for the child's IEP would be based on State law, policy, or practice. However, the SEA in the placing State is ultimately responsible for ensuring that the child has FAPE available. 17. If a disabled child has been receiving special education from one public agency and transfers to another public agency in the same State, must the new public agency develop an IEP before the child can be placed in a special education program? If a child with a disability moves from one public agency to another in the same State, the State and its public agencies have an ongoing responsibility to ensure that FAPE is made available to that child. This means that if a child moves to another public agency the new agency is responsible for ensuring that the child has available special education and related services in conformity with an IEP. The new public agency must ensure that the child has an IEP in effect before the agency can provide special education and related services. The new public agency may meet this responsibility by either adopting the IEP the former public agency developed for the child or by developing a new IEP for the child. (The new public agency is strongly encouraged to continue implementing the IEP developed by the former public agency, if appropriate, especially if the parents believe their child was progressing appropriately under that IEP.) Before the child's IEP is finalized, the new public agency may provide interim services agreed to by both the parents and the new public agency. If the parents and the new public agency are unable to agree on an interim IEP and placement, the new public agency must implement the old IEP to the extent possible until a new IEP is developed and implemented. In general, while the new public agency must conduct an IEP meeting, it would not be necessary if: (1) A copy of the child's current IEP is available; (2) the parents indicate that they are satisfied with the current IEP; and (3) the new public agency determines that the current IEP is appropriate and can be implemented as written. If the child's current IEP is not available, or if either the new public agency or the parent believes that it is not appropriate, the new public agency must develop a new IEP through appropriate procedures within a short time after the child enrolls in the new public agency (normally, within one week). 18. What timelines apply to the development and implementation of an initial IEP for a child with a disability? Section 300.343(b) requires each public agency to ensure that within a reasonable period of time following the agency's receipt of parent consent to an initial evaluation of a child, the child is evaluated and, if determined eligible, special education and related services are made available to the child in accordance with an IEP. The section further requires the agency to conduct a meeting to develop an IEP for the child within 30 days of determining that the child needs special education and related services. Section 300.342(b)(2) provides that an IEP must be implemented as soon as possible following the meeting in which the IEP is developed. 19. Must a public agency hold separate meetings to determine a child's eligibility for special education and related services, develop the child's IEP, and determine the child's placement, or may the agency meet all of these requirements in a single meeting? A public agency may, after a child is determined by ``a group of qualified professionals and the parent'' (see Sec. 300.534(a)(1)) to be a child with a disability, continue in the same meeting to develop an IEP for the child and then to determine the child's placement. However, the public agency must ensure that it meets: (1) the requirements of Sec. 300.535 regarding eligibility decisions; (2) all of the Part B requirements regarding meetings to develop IEPs (including providing appropriate notification to the parents, consistent with the requirements of Secs. 300.345, 300.503, and 300.504, and ensuring that all the required team members participate in the development of the IEP, consistent with the requirements of Sec. 300.344;) and (3) ensuring that the placement is made by the required individuals, including the parent, as required by Secs. 300.552 and 300.501(c). 20. How frequently must a public agency conduct meetings to review, and, if appropriate, revise the IEP for each child with a disability? A public agency must initiate and conduct meetings periodically, but at least once every twelve months, to review each child's IEP, in order to determine whether the annual goals for the child are being achieved, and to revise the IEP, as appropriate, to address: (a) Any lack of expected progress toward the annual goals and in the general curriculum, if appropriate; (b) the results of any reevaluation; (c) information about the child provided to, or by, the parents; (d) the child's anticipated needs; or (e) other matters (Sec. 300.343(c)). [[Page 110]] A public agency also must ensure that an IEP is in effect for each child at the beginning of each school year (Sec. 300.342(a)). It may conduct IEP meetings at any time during the year. However, if the agency conducts the IEP meeting prior to the beginning of the next school year, it must ensure that the IEP contains the necessary special education and related services and supplementary aids and services to ensure that the student's IEP can be appropriately implemented during the next school year. Otherwise, it would be necessary for the public agency to conduct another IEP meeting. Although the public agency is responsible for determining when it is necessary to conduct an IEP meeting, the parents of a child with a disability have the right to request an IEP meeting at any time. For example, if the parents believe that the child is not progressing satisfactorily or that there is a problem with the child's current IEP, it would be appropriate for the parents to request an IEP meeting. If a child's teacher feels that the child's IEP or placement is not appropriate for the child, the teacher should follow agency procedures with respect to: (1) calling or meeting with the parents or (2) requesting the agency to hold another IEP meeting to review the child's IEP. The legislative history of Public Law 94-142 makes it clear that there should be as many meetings a year as any one child may need (121 Cong. Rec. S20428-29 (Nov. 19, 1975) (remarks of Senator Stafford)). Public agencies should grant any reasonable parent request for an IEP meeting. For example, if the parents question the adequacy of services that are provided while their child is suspended for short periods of time, it would be appropriate to convene an IEP meeting. In general, if either a parent or a public agency believes that a required component of the student's IEP should be changed, the public agency must conduct an IEP meeting if it believes that a change in the IEP may be necessary to ensure the provision of FAPE. If a parent requests an IEP meeting because the parent believes that a change is needed in the provision of FAPE to the child or the educational placement of the child, and the agency refuses to convene an IEP meeting to determine whether such a change is needed, the agency must provide written notice to the parents of the refusal, including an explanation of why the agency has determined that conducting the meeting is not necessary to ensure the provision of FAPE to the student. Under Sec. 300.507(a), the parents or agency may initiate a due process hearing at any time regarding any proposal or refusal regarding the identification, evaluation, or educational placement of the child, or the provision of FAPE to the child, and the public agency must inform parents about the availability of mediation. 21. May IEP meetings be audio- or video-tape-recorded? Part B does not address the use of audio or video recording devices at IEP meetings, and no other Federal statute either authorizes or prohibits the recording of an IEP meeting by either a parent or a school official. Therefore, an SEA or public agency has the option to require, prohibit, limit, or otherwise regulate the use of recording devices at IEP meetings. If a public agency has a policy that prohibits or limits the use of recording devices at IEP meetings, that policy must provide for exceptions if they are necessary to ensure that the parent understands the IEP or the IEP process or to implement other parental rights guaranteed under Part B. An SEA or school district that adopts a rule regulating the tape recording of IEP meetings also should ensure that it is uniformly applied. Any recording of an IEP meeting that is maintained by the public agency is an ``education record,'' within the meaning of the Family Educational Rights and Privacy Act (``FERPA''; 20 U.S.C. 1232g), and would, therefore, be subject to the confidentiality requirements of the regulations under both FERPA (34 CFR part 99) and part B (Secs. 300.560- 300.575). Parents wishing to use audio or video recording devices at IEP meetings should consult State or local policies for further guidance. 22. Who can serve as the representative of the public agency at an IEP meeting? The IEP team must include a representative of the public agency who: (a) Is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities; (b) is knowledgeable about the general curriculum; and (c) is knowledgeable about the availability of resources of the public agency (Sec. 300.344(a)(4)). Each public agency may determine which specific staff member will serve as the agency representative in a particular IEP meeting, so long as the individual meets these requirements. It is important, however, that the agency representative have the authority to commit agency resources and be able to ensure that whatever services are set out in the IEP will actually be provided. A public agency may designate another public agency member of the IEP team to also serve as the agency representative, so long as that individual meets the requirements of Sec. 300.344(a)(4). 23. For a child with a disability being considered for initial provision of special education and related services, which teacher or teachers should attend the IEP meeting? A child's IEP team must include at least one of the child's regular education teachers [[Page 111]] (if the child is, or may be participating in the regular education environment) and at least one of the child's special education teachers, or, if appropriate, at least one of the child's special education providers (Sec. 300.344(a)(2) and (3)). Each IEP must include a statement of the present levels of educational performance, including a statement of how the child's disability affects the child's involvement and progress in the general curriculum (Sec. 300.347(a)(1)). At least one regular education teacher is a required member of the IEP team of a child who is, or may be, participating in the regular educational environment, regardless of the extent of that participation. The requirements of Sec. 300.344(a)(3) can be met by either: (1) a special education teacher of the child; or (2) another special education provider of the child, such as a speech pathologist, physical or occupational therapist, etc., if the related service consists of specially designed instruction and is considered special education under applicable State standards. Sometimes more than one meeting is necessary in order to finalize a child's IEP. In this process, if the special education teacher or special education provider who will be working with the child is identified, it would be useful to have that teacher or provider participate in the meeting with the parents and other members of the IEP team in finalizing the IEP. If this is not possible, the public agency must ensure that the teacher or provider has access to the child's IEP as soon as possible after it is finalized and before beginning to work with the child. Further, (consistent with Sec. 300.342(b)), the public agency must ensure that each regular education teacher, special education teacher, related services provider and other service provider of an eligible child under this part (1) has access to the child's IEP, and (2) is informed of his or her specific responsibilities related to implementing the IEP, and of the specific accommodations, modifications, and supports that must be provided to the child in accordance with the IEP. This requirement is crucial to ensuring that each child receives FAPE in accordance with his or her IEP, and that the IEP is appropriately and effectively implemented. 24. What is the role of a regular education teacher in the development, review and revision of the IEP for a child who is, or may be, participating in the regular education environment? As required by Sec. 300.344(a)(2), the IEP team for a child with a disability must include at least one regular education teacher of the child if the child is, or may be, participating in the regular education environment. Section 300.346(d) further specifies that 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--(1) the determination of appropriate positive behavioral interventions and strategies for the child; and (2) the determination of supplementary aids and services, program modifications, and supports for school personnel that will be provided for the child, consistent with 300.347(a)(3) (Sec. 300.344(d)). Thus, while a regular education teacher must be a member of the IEP team if the child is, or may be, participating in the regular education environment, the teacher need not (depending upon the child's needs and the purpose of the specific IEP team meeting) be required to participate in all decisions made as part of the meeting or to be present throughout the entire meeting or attend every meeting. For example, the regular education teacher who is a member of the IEP team must participate in discussions and decisions about how to modify the general curriculum in the regular classroom to ensure the child's involvement and progress in the general curriculum and participation in the regular education environment. Depending upon the specific circumstances, however, it may not be necessary for the regular education teacher to participate in discussions and decisions regarding, for example, the physical therapy needs of the child, if the teacher is not responsible for implementing that portion of the child's IEP. In determining the extent of the regular education teacher's participation at IEP meetings, public agencies and parents should discuss and try to reach agreement on whether the child's regular education teacher that is a member of the IEP team should be present at a particular IEP meeting and, if so, for what period of time. The extent to which it would be appropriate for the regular education teacher member of the IEP team to participate in IEP meetings must be decided on a case-by-case basis. 25. If a child with a disability attends several regular classes, must all of the child's regular education teachers be members of the child's IEP team? No. The IEP team need not include more than one regular education teacher of the child. If the participation of more than one regular education teacher would be beneficial to the child's success in school (e.g., in terms of enhancing the child's participation in the general curriculum), it would be appropriate for them to attend the meeting. 26. How should a public agency determine which regular education teacher and special education teacher will be members of the IEP team for a particular child with a disability? The regular education teacher who serves as a member of a child's IEP team should be a teacher who is, or may be, responsible for [[Page 112]] implementing a portion of the IEP, so that the teacher can participate in discussions about how best to teach the child. If the child has more than one regular education teacher responsible for carrying out a portion of the IEP, the LEA may designate which teacher or teachers will serve as IEP team member(s), taking into account the best interest of the child. In a situation in which not all of the child's regular education teachers are members of the child's IEP team, the LEA is strongly encouraged to seek input from the teachers who will not be attending. In addition, (consistent with Sec. 300.342(b)), the LEA must ensure that each regular education teacher (as well as each special education teacher, related services provider, and other service provider) of an eligible child under this part (1) has access to the child's IEP, and (2) is informed of his or her specific responsibilities related to implementing the IEP, and of the specific accommodations, modifications and supports that must be provided to the child in accordance with the IEP. In the case of a child whose behavior impedes the learning of the child or others, the LEA is encouraged to have a regular education teacher or other person knowledgeable about positive behavior strategies at the IEP meeting. This is especially important if the regular education teacher is expected to carry out portions of the IEP. Similarly, the special education teacher or provider of the child who is a member of the child's IEP team should be the person who is, or will be, responsible for implementing the IEP. If, for example, the child's disability is a speech impairment, the special education teacher on the IEP team could be the speech-language pathologist. 27. For a child whose primary disability is a speech impairment, may a public agency meet its responsibility under Sec. 300.344(a)(3) to ensure that the IEP team includes ``at least one special education teacher, or, if appropriate, at least one special education provider of the child'' by including a speech-language pathologist on the IEP team? Yes, if speech is considered special education under State standards. As with other children with disabilities, the IEP team must also include at least one of the child's regular education teachers if the child is, or may be, participating in the regular education environment. 28. Do parents and public agencies have the option of inviting any individual of their choice be participants on their child's IEP team? The IEP team may, at the discretion of the parent or the agency, include ``other individuals who have knowledge or special expertise regarding the child * * *'' (Sec. 300.344(a)(6), italics added). Under Sec. 300.344(a)(6), these individuals are members of the IEP team. This is a change from prior law, which provided, without qualification, that parents or agencies could have other individuals as members of the IEP team at the discretion of the parents or agency. Under Sec. 300.344(c), the determination as to whether an individual has knowledge or special expertise, within the meaning of Sec. 300.344(a)(6), shall be made by the parent or public agency who has invited the individual to be a member of the IEP team. Part B does not provide for including individuals such as representatives of teacher organizations as part of an IEP team, unless they are included because of knowledge or special expertise regarding the child. (Because a representative of a teacher organization would generally be concerned with the interests of the teacher rather than the interests of the child, and generally would not possess knowledge or expertise regarding the child, it generally would be inappropriate for such an official to be a member of the IEP team or to otherwise participate in an IEP meeting.) 29. Can parents or public agencies bring their attorneys to IEP meetings, and, if so under what circumstances? Are attorney's fees available for parents' attorneys if the parents are prevailing parties in actions or proceedings brought under Part B? Section 300.344(a)(6) authorizes the addition to the IEP team of other individuals at the discretion of the parent or the public agency only if those other individuals have knowledge or special expertise regarding the child. The determination of whether an attorney possesses knowledge or special expertise regarding the child would have to be made on a case-by-case basis by the parent or public agency inviting the attorney to be a member of the team. The presence of the agency's attorney could contribute to a potentially adversarial atmosphere at the meeting. The same is true with regard to the presence of an attorney accompanying the parents at the IEP meeting. Even if the attorney possessed knowledge or special expertise regarding the child (Sec. 300.344(a)(6)), an attorney's presence would have the potential for creating an adversarial atmosphere that would not necessarily be in the best interests of the child. Therefore, the attendance of attorneys at IEP meetings should be strongly discouraged. Further, as specified in Section 615(i)(3)(D)(ii) of the Act and Sec. 300.513(c)(2)(ii), Attorneys' fees may not be awarded relating to any meeting of the IEP team unless the meeting is convened as a result of an administrative proceeding or judicial action, or, at the discretion of the State, for a mediation conducted prior to the request for a due process hearing. 30. Must related services personnel attend IEP meetings? [[Page 113]] Although Part B does not expressly require that the IEP team include related services personnel as part of the IEP team (Sec. 300.344(a)), it is appropriate for those persons to be included if a particular related service is to be discussed as part of the IEP meeting. Section 300.344(a)(6) provides that the IEP team also includes ``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. * * *'' (Italics added.) Further, Sec. 300.344(a)(3) requires that the IEP team for each child with a disability include ``at least one special education teacher, or, if appropriate, at least one special education provider of the child * * *'' This requirement can be met by the participation of either (1) a special education teacher of the child, or (2) another special education provider such as a speech-language pathologist, physical or occupational therapist, etc., if the related service consists of specially designed instruction and is considered special education under the applicable State standard. If a child with a disability has an identified need for related services, it would be appropriate for the related services personnel to attend the meeting or otherwise be involved in developing the IEP. As explained in the Committee Reports on the IDEA Amendments of 1997, ``Related services personnel should be included on the team when a particular related service will be discussed at the request of the child's parents or the school.'' (H. Rep. No. 105-95, p. 103 (1997); S. Rep. No. 105-17, p. 23 (1997)). For example, if the child's evaluation indicates the need for a specific related service (e.g., physical therapy, occupational therapy, special transportation services, school social work services, school health services, or counseling), the agency should ensure that a qualified provider of that service either (1) attends the IEP meeting, or (2) provides a written recommendation concerning the nature, frequency, and amount of service to be provided to the child. This written recommendation could be a part of the evaluation report. A public agency must ensure that all individuals who are necessary to develop an IEP that will meet the child's unique needs, and ensure the provision of FAPE to the child, participate in the child's IEP meeting. 31. Must the public agency ensure that all services specified in a child's IEP are provided? Yes. The public agency must ensure that all services set forth in the child's IEP are provided, consistent with the child's needs as identified in the IEP. The agency may provide each of those services directly, through its own staff resources; indirectly, by contracting with another public or private agency; or through other arrangements. In providing the services, the agency may use whatever State, local, Federal, and private sources of support are available for those purposes (see Sec. 300.301(a)); but the services must be at no cost to the parents, and the public agency remains responsible for ensuring that the IEP services are provided in a manner that appropriately meets the student's needs as specified in the IEP. The SEA and responsible public agency may not allow the failure of another agency to provide service(s) described in the child's IEP to deny or delay the provision of FAPE to the child. (See Sec. 300.142, Methods of ensuring services.) 32. Is it permissible for an agency to have the IEP completed before the IEP meeting begins? No. Agency staff may come to an IEP meeting prepared with evaluation findings and proposed recommendations regarding IEP content, but the agency must make it clear to the parents at the outset of the meeting that the services proposed by the agency are only recommendations for review and discussion with the parents. Parents have the right to bring questions, concerns, and recommendations to an IEP meeting as part of a full discussion, of the child's needs and the services to be provided to meet those needs before the IEP is finalized. Public agencies must ensure that, if agency personnel bring drafts of some or all of the IEP content to the IEP meeting, there is a full discussion with the child's parents, before the child's IEP is finalized, regarding drafted content and the child's needs and the services to be provided to meet those needs. 33. Must a public agency include transportation in a child's IEP as a related service? As with other related services, a public agency must provide transportation as a related service if it is required to assist the disabled child to benefit from special education. (This includes transporting a preschool-aged child to the site at which the public agency provides special education and related services to the child, if that site is different from the site at which the child receives other preschool or day care services.) In determining whether to include transportation in a child's IEP, and whether the child needs to receive transportation as a related service, it would be appropriate to have at the IEP meeting a person with expertise in that area. In making this determination, the IEP team must consider how the child's disability affects the child's need for transportation, including determining whether the child's disability prevents the child from using the same transportation provided to nondisabled children, or from getting to school in the same manner as nondisabled children. The public agency must ensure that any transportation service included in a child's IEP as a related service is provided at public expense and at no cost to the parents, and [[Page 114]] that the child's IEP describes the transportation arrangement. Even if a child's IEP team determines that the child does not require transportation as a related service, Section 504 of the Rehabilitation Act of 1973, as amended, requires that the child receive the same transportation provided to nondisabled children. If a public agency transports nondisabled children, it must transport disabled children under the same terms and conditions. However, if a child's IEP team determines that the child does not need transportation as a related service, and the public agency transports only those children whose IEPs specify transportation as a related service, and does not transport nondisabled children, the public agency would not be required to provide transportation to a disabled child. It should be assumed that most children with disabilities receive the same transportation services as nondisabled children. For some children with disabilities, integrated transportation may be achieved by providing needed accommodations such as lifts and other equipment adaptations on regular school transportation vehicles. 34. Must a public agency provide related services that are required to assist a child with a disability to benefit from special education, whether or not those services are included in the list of related services in Sec. 300.24? The list of related services 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. This could, depending upon the unique needs of a child, include such services as nutritional services or service coordination. These determinations must be made on an individual basis by each child's IEP team. 35. Must the IEP specify the amount of services or may it simply list the services to be provided? The amount of services to be provided must be stated in the IEP, so that the level of the agency's commitment of resources will be clear to parents and other IEP team members (Sec. 300.347(a)(6)). The amount of time to be committed to each of the various services to be provided must be (1) appropriate to the specific service, and (2) stated in the IEP in a manner that is clear to all who are involved in both the development and implementation of the IEP. The amount of a special education or related service to be provided to a child may be stated in the IEP as a range (e.g., speech therapy to be provided three times per week for 30-45 minutes per session) only if the IEP team determines that stating the amount of services as a range is necessary to meet the unique needs of the child. For example, it would be appropriate for the IEP to specify, based upon the IEP team's determination of the student's unique needs, that particular services are needed only under specific circumstances, such as the occurrence of a seizure or of a particular behavior. A range may not be used because of personnel shortages or uncertainty regarding the availability of staff. 36. Under what circumstances is a public agency required to permit a child with a disability to use a school-purchased assistive technology device in the child's home or in another setting? Each child's IEP team must consider the child's need for assistive technology (AT) in the development of the child's IEP (Sec. 300.346(a)(2)(v)); and the nature and extent of the AT devices and services to be provided to the child must be reflected in the child's IEP (Sec. 300.346(c)). A public agency must permit a child to use school-purchased assistive technology devices at home or in other settings, if the IEP team determines that the child needs access to those devices in nonschool settings in order to receive FAPE (to complete homework, for example). Any assistive technology devices that are necessary to ensure FAPE must be provided at no cost to the parents, and the parents cannot be charged for normal use, wear and tear. However, while ownership of the devices in these circumstances would remain with the public agency, State law, rather than Part B, generally would govern whether parents are liable for loss, theft, or damage due to negligence or misuse of publicly owned equipment used at home or in other settings in accordance with a child's IEP. 37. Can the IEP team also function as the group making the placement decision for a child with a disability? Yes, a public agency may use the IEP team to make the placement decision for a child, so long as the group making the placement decision meets the requirements of Secs. 300.552 and 300.501(c), which requires that the placement decision be made by a group of persons, including the parents, and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options. 38. If a child's IEP includes behavioral strategies to address a particular behavior, can a child ever be suspended for engaging in that behavior? If a child's behavior impedes his or her learning or that of others, the IEP team, in developing the child's IEP, must consider, if appropriate, development of strategies, including positive behavioral interventions, strategies and supports to address that behavior, consistent with Sec. 300.346(a)(2)(i). This means that in most cases in which a child's behavior that impedes his or her learning or that of others is, or can be readily anticipated to be, repetitive, proper development [[Page 115]] of the child's IEP will include the development of strategies, including positive behavioral interventions, strategies and supports to address that behavior. See Sec. 300.346(c). This includes behavior that could violate a school code of conduct. A failure to, if appropriate, consider and address these behaviors in developing and implementing the child's IEP would constitute a denial of FAPE to the child. Of course, in appropriate circumstances, the IEP team, which includes the child's parents, might determine that the child's behavioral intervention plan includes specific regular or alternative disciplinary measures, such as denial of certain privileges or short suspensions, that would result from particular infractions of school rules, along with positive behavior intervention strategies and supports, as a part of a comprehensive plan to address the child's behavior. Of course, if short suspensions that are included in a child's IEP are being implemented in a manner that denies the child access to the ability to progress in the educational program, the child would be denied FAPE. Whether other disciplinary measures, including suspension, are ever appropriate for behavior that is addressed in a child's IEP will have to be determined on a case by case basis in light of the particular circumstances of that incident. However, school personnel may not use their ability to suspend a child for 10 days or less at a time on multiple occasions in a school year as a means of avoiding appropriately considering and addressing the child's behavior as a part of providing FAPE to the child. 39. If a child's behavior in the regular classroom, even with appropriate interventions, would significantly impair the learning of others, can the group that makes the placement decision determine that placement in the regular classroom is inappropriate for that child? The IEP team, in developing the IEP, is required to consider, when appropriate, strategies, including positive behavioral interventions, strategies and supports to address the behavior of a child with a disability whose behavior impedes his or her learning or that of others. If the IEP team determines that such supports, strategies or interventions are necessary to address the behavior of the child, those services must be included in the child's IEP. These provisions are designed to foster increased participation of children with disabilities in regular education environments or other less restrictive environments, not to serve as a basis for placing children with disabilities in more restrictive settings. The determination of appropriate placement for a child whose behavior is interfering with the education of others requires careful consideration of whether the child can appropriately function in the regular classroom if provided appropriate behavioral supports, strategies and interventions. If the child can appropriately function in the regular classroom with appropriate behavioral supports, strategies or interventions, placement in a more restrictive environment would be inconsistent with the least restrictive environment provisions of the IDEA. If the child's behavior in the regular classroom, even with the provision of appropriate behavioral supports, strategies or interventions, would significantly impair the learning of others, that placement would not meet his or her needs and would not be appropriate for that child. 40. May school personnel during a school year implement more than one short-term removal of a child with disabilities from his or her classroom or school for misconduct? Yes. Under Sec. 300.520(a)(1), school personnel may order removal of a child with a disability from the child's current placement for not more than 10 consecutive school days for any violation of school rules, and additional removals of not more than 10 consecutive school days in that same school year for separate incidents of misconduct, as long as these removals do not constitute a change of placement under Sec. 300.519(b). However, these removals are permitted only to the extent they are consistent with discipline that is applied to children without disabilities. Also, school personnel should be aware of constitutional due process protections that apply to suspensions of all children. Goss v. Lopez, 419 U.S. 565 (1975). Section 300.121(d) addresses the extent of the obligation to provide services after a child with a disability has been removed from his or her current placement for more than 10 school days in the same school year.


  • IDEAs that Work: Office of Special Education Programs, U.S. Department of Education

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  • UNC Frank Porter Graham Child Development Institute