Improving Systems, Practices and Outcomes

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

Return to Federal Regulations for Part B of IDEA page


[Code of Federal Regulations]
[Title 34, Volume 2, Parts 300 to 399]
[Revised as of July 1, 1999]
From the U.S. Government Printing Office via GPO Access
[CITE: 34CFR300.1]

[Page 10-11]
 
                           TITLE 34--EDUCATION
 
PART 300--ASSISTANCE TO STATES FOR THE 
EDUCATION OF CHILDREN WITH DISABILITIES
 
Subpart A--General
 
Sec. 300.1  Purposes.

   Purposes, Applicability, and Regulations That Apply to This Program


    The purposes of this part are--
    (a) 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

[[Page 11]]

unique needs and prepare them for employment and independent living;
    (b) To ensure that the rights of children with disabilities and 
their parents are protected;
    (c) To assist States, localities, educational service agencies, and 
Federal agencies to provide for the education of all children with 
disabilities; and
    (d) To assess and ensure the effectiveness of efforts to educate 
children with disabilities.

(Authority: 20 U.S.C. 1400 note)

Sec. 300.2  Applicability of this part to State, local, and private agencies.

    (a) States. This part applies to each State that receives payments 
under Part B of the Act.
    (b) Public agencies within the State. The provisions of this part--
    (1) Apply to all political subdivisions of the State that are 
involved in the education of children with disabilities, including--
    (i) The State educational agency (SEA);
    (ii) Local educational agencies (LEAs), educational service agencies 
(ESAs), and public charter schools that are not otherwise included as 
LEAs or ESAs and are not a school of an LEA or ESA;
    (iii) Other State agencies and schools (such as Departments of 
Mental Health and Welfare and State schools for children with deafness 
or children with blindness); and
    (iv) State and local juvenile and adult correctional facilities; and
    (2) Are binding on each public agency in the State that provides 
special education and related services to children with disabilities, 
regardless of whether that agency is receiving funds under Part B.
    (c) Private schools and facilities. Each public agency in the State 
is responsible for ensuring that the rights and protections under Part B 
of the Act are given to children with disabilities--
    (1) Referred to or placed in private schools and facilities by that 
public agency; or
    (2) Placed in private schools by their parents under the provisions 
of Sec. 300.403(c).

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

Sec. 300.3  Regulations that apply.

    The following regulations apply to this program:
    (a) 34 CFR part 76 (State-Administered Programs) except for 
Secs. 76.125-76.137 and 76.650-76.662.
    (b) 34 CFR part 77 (Definitions).
    (c) 34 CFR part 79 (Intergovernmental Review of Department of 
Education Programs and Activities).
    (d) 34 CFR part 80 (Uniform Administrative Requirements for Grants 
and Cooperative Agreements to State and Local Governments).
    (e) 34 CFR part 81 (General Education Provisions Act--Enforcement).
    (f) 34 CFR part 82 (New Restrictions on Lobbying).
    (g) 34 CFR part 85 (Government-wide Debarment and Suspension 
(Nonprocurement) and Government-wide Requirements for Drug-Free 
Workplace (Grants)).
    (h) The regulations in this part--34 CFR part 300 (Assistance for 
Education of Children with Disabilities).

(Authority: 20 U.S.C. 1221e-3(a)(1))

                      Definitions Used in This Part

Sec. 300.4  Act.

    As used in this part, Act means the Individuals with Disabilities 
Education Act (IDEA), as amended.

(Authority: 20 U.S.C. 1400(a))

Sec. 300.5  Assistive technology device.

    As used in this part, Assistive technology device means any item, 
piece of equipment, or product system, whether acquired commercially off 
the shelf, modified, or customized, that is used to increase, maintain, 
or improve the functional capabilities of a child with a disability.

(Authority: 20 U.S.C. 1401(1))

Sec. 300.6  Assistive technology service.

    As used in this part, Assistive technology service means any service 
that directly assists a child with a disability in the selection, 
acquisition, or use of an assistive technology device.
    The term includes--
    (a) The evaluation of the needs of a child with a disability, 
including a

[[Page 12]]

functional evaluation of the child in the child's customary environment;
    (b) Purchasing, leasing, or otherwise providing for the acquisition 
of assistive technology devices by children with disabilities;
    (c) Selecting, designing, fitting, customizing, adapting, applying, 
maintaining, repairing, or replacing assistive technology devices;
    (d) Coordinating and using other therapies, interventions, or 
services with assistive technology devices, such as those associated 
with existing education and rehabilitation plans and programs;
    (e) Training or technical assistance for a child with a disability 
or, if appropriate, that child's family; and
    (f) Training or technical assistance for professionals (including 
individuals providing education or rehabilitation services), employers, 
or other individuals who provide services to, employ, or are otherwise 
substantially involved in the major life functions of that child.

(Authority: 20 U.S.C. 1401(2))

Sec. 300.7  Child with a disability.

    (a) General. (1) As used in this part, the term child with a 
disability means a child evaluated in accordance with Secs. 300.530-
300.536 as having mental retardation, a hearing impairment including 
deafness, a speech or language impairment, a visual impairment including 
blindness, serious emotional disturbance (hereafter referred to as 
emotional disturbance), an orthopedic impairment, autism, traumatic 
brain injury, an other health impairment, a specific learning 
disability, deaf-blindness, or multiple disabilities, and who, by reason 
thereof, needs special education and related services.
    (2)(i) Subject to paragraph (a)(2)(ii) of this section, if it is 
determined, through an appropriate evaluation under Secs. 300.530-
300.536, that a child has one of the disabilities identified in 
paragraph (a)(1) of this section, but only needs a related service and 
not special education, the child is not a child with a disability under 
this part.
    (ii) If, consistent with Sec. 300.26(a)(2), the related service 
required by the child is considered special education rather than a 
related service under State standards, the child would be determined to 
be a child with a disability under paragraph (a)(1) of this section.
    (b) Children aged 3 through 9 experiencing developmental delays. The 
term child with a disability for children aged 3 through 9 may, at the 
discretion of the State and LEA and in accordance with Sec. 300.313, 
include a child--
    (1) Who is experiencing developmental delays, as defined by the 
State and as measured by appropriate diagnostic instruments and 
procedures, in one or more of the following areas: physical development, 
cognitive development, communication development, social or emotional 
development, or adaptive development; and
    (2) Who, by reason thereof, needs special education and related 
services.
    (c) Definitions of disability terms. The terms used in this 
definition are defined as follows:
    (1)(i) Autism means a developmental disability significantly 
affecting verbal and nonverbal communication and social interaction, 
generally evident before age 3, that adversely affects a child's 
educational performance. Other characteristics often associated with 
autism are engagement in repetitive activities and stereotyped 
movements, resistance to environmental change or change in daily 
routines, and unusual responses to sensory experiences. The term does 
not apply if a child's educational performance is adversely affected 
primarily because the child has an emotional disturbance, as defined in 
paragraph (b)(4) of this section.
    (ii) A child who manifests the characteristics of ``autism'' after 
age 3 could be diagnosed as having ``autism'' if the criteria in 
paragraph (c)(1)(i) of this section are satisfied.
    (2) Deaf-blindness means concomitant hearing and visual impairments, 
the combination of which causes such severe communication and other 
developmental and educational needs that they cannot be accommodated in 
special education programs solely for children with deafness or children 
with blindness.
    (3) Deafness means a hearing impairment that is so severe that the 
child is

[[Page 13]]

impaired in processing linguistic information through hearing, with or 
without amplification, that adversely affects a child's educational 
performance.
    (4) Emotional disturbance is defined as follows:
    (i) The term means a condition exhibiting one or more of the 
following characteristics over a long period of time and to a marked 
degree that adversely affects a child's educational performance:
    (A) An inability to learn that cannot be explained by intellectual, 
sensory, or health factors.
    (B) An inability to build or maintain satisfactory interpersonal 
relationships with peers and teachers.
    (C) Inappropriate types of behavior or feelings under normal 
circumstances.
    (D) A general pervasive mood of unhappiness or depression.
    (E) A tendency to develop physical symptoms or fears associated with 
personal or school problems.
    (ii) The term includes schizophrenia. The term does not apply to 
children who are socially maladjusted, unless it is determined that they 
have an emotional disturbance.
    (5) Hearing impairment means an impairment in hearing, whether 
permanent or fluctuating, that adversely affects a child's educational 
performance but that is not included under the definition of deafness in 
this section.
    (6) Mental retardation means significantly subaverage general 
intellectual functioning, existing concurrently with deficits in 
adaptive behavior and manifested during the developmental period, that 
adversely affects a child's educational performance.
    (7) Multiple disabilities means concomitant impairments (such as 
mental retardation-blindness, mental retardation-orthopedic impairment, 
etc.), the combination of which causes such severe educational needs 
that they cannot be accommodated in special education programs solely 
for one of the impairments. The term does not include deaf-blindness.
    (8) Orthopedic impairment means a severe orthopedic impairment that 
adversely affects a child's educational performance. The term includes 
impairments caused by congenital anomaly (e.g., clubfoot, absence of 
some member, etc.), impairments caused by disease (e.g., poliomyelitis, 
bone tuberculosis, etc.), and impairments from other causes (e.g., 
cerebral palsy, amputations, and fractures or burns that cause 
contractures).
    (9) Other health impairment means having limited strength, vitality 
or alertness, including a heightened alertness to environmental stimuli, 
that results in limited alertness with respect to the educational 
environment, that--
    (i) Is due to chronic or acute health problems such as asthma, 
attention deficit disorder or attention deficit hyperactivity disorder, 
diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, 
leukemia, nephritis, rheumatic fever, and sickle cell anemia; and
    (ii) Adversely affects a child's educational performance.
    (10) Specific learning disability is defined as follows:
    (i) General. The term means a disorder in one or more of the basic 
psychological processes involved in understanding or in using language, 
spoken or written, that may manifest itself in an imperfect ability to 
listen, think, speak, read, write, spell, or to do mathematical 
calculations, including conditions such as perceptual disabilities, 
brain injury, minimal brain dysfunction, dyslexia, and developmental 
aphasia.
    (ii) Disorders not included. The term does not include learning 
problems that are primarily the result of visual, hearing, or motor 
disabilities, of mental retardation, of emotional disturbance, or of 
environmental, cultural, or economic disadvantage.
    (11) Speech or language impairment means a communication disorder, 
such as stuttering, impaired articulation, a language impairment, or a 
voice impairment, that adversely affects a child's educational 
performance.
    (12) Traumatic brain injury means an acquired injury to the brain 
caused by an external physical force, resulting in total or partial 
functional disability or psychosocial impairment, or both, that 
adversely affects a child's educational performance. The term applies to 
open or closed head injuries resulting in impairments in one or more 
areas, such

[[Page 14]]

as cognition; language; memory; attention; reasoning; abstract thinking; 
judgment; problem-solving; sensory, perceptual, and motor abilities; 
psychosocial behavior; physical functions; information processing; and 
speech. The term does not apply to brain injuries that are congenital or 
degenerative, or to brain injuries induced by birth trauma.
    (13) Visual impairment including blindness means an impairment in 
vision that, even with correction, adversely affects a child's 
educational performance. The term includes both partial sight and 
blindness.

(Authority: 20 U.S.C. 1401(3)(A) and (B); 1401(26))

Sec. 300.8  Consent.

    As used in this part, the term consent has the meaning given that 
term in Sec. 300.500(b)(1).

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

Sec. 300.9  Day; business day; school day.

    As used in this part, the term--
    (a) Day means calendar day unless otherwise indicated as business 
day or school day;
    (b) Business day means Monday through Friday, except for Federal and 
State holidays (unless holidays are specifically included in the 
designation of business day, as in Sec. 300.403(d)(1)(ii)); and
    (c)(1) School day means any day, including a partial day, that 
children are in attendance at school for instructional purposes.
    (2) The term school day has the same meaning for all children in 
school, including children with and without disabilities.

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


Sec. 300.10  Educational service agency.

    As used in this part, the term educational service agency--
    (a) Means a regional public multiservice agency--
    (1) Authorized by State law to develop, manage, and provide services 
or programs to LEAs; and
    (2) Recognized as an administrative agency for purposes of the 
provision of special education and related services provided within 
public elementary and secondary schools of the State;
    (b) Includes any other public institution or agency having 
administrative control and direction over a public elementary or 
secondary school; and
    (c) Includes entities that meet the definition of intermediate 
educational unit in section 602(23) of IDEA as in effect prior to June 
4, 1997.

(Authority: 20 U.S.C. 1401(4))

Sec. 300.11  Equipment.

    As used in this part, the term equipment means--
    (a) Machinery, utilities, and built-in equipment and any necessary 
enclosures or structures to house the machinery, utilities, or 
equipment; and
    (b) All other items necessary for the functioning of a particular 
facility as a facility for the provision of educational services, 
including items such as instructional equipment and necessary furniture; 
printed, published and audio-visual instructional materials; 
telecommunications, sensory, and other technological aids and devices; 
and books, periodicals, documents, and other related materials.

(Authority: 20 U.S.C. 1401(6))

Sec. 300.12  Evaluation.

    As used in this part, the term evaluation has the meaning given that 
term in Sec. 300.500(b)(2).

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


Sec. 300.13  Free appropriate public education.

    As used in this part, the term free appropriate public education or 
FAPE means special education and related services that--
    (a) Are provided at public expense, under public supervision and 
direction, and without charge;
    (b) Meet the standards of the SEA, including the requirements of 
this part;
    (c) Include preschool, elementary school, or secondary school 
education in the State; and
    (d) Are provided in conformity with an individualized education 
program

[[Page 15]]

(IEP) that meets the requirements of Secs. 300.340-300.350.

(Authority: 20 U.S.C. 1401(8))


Sec. 300.14  Include.

    As used in this part, the term include means that the items named 
are not all of the possible items that are covered, whether like or 
unlike the ones named.

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

Sec. 300.15  Individualized education program.

    As used in this part, the term individualized education program or 
IEP has the meaning given the term in Sec. 300.340(a).

(Authority: 20 U.S.C. 1401(11))

Sec. 300.16  Individualized education program team.

    As used in this part, the term individualized education program team 
or IEP team means a group of individuals described in Sec. 300.344 that 
is responsible for developing, reviewing, or revising an IEP for a child 
with a disability.

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

Sec. 300.17  Individualized family service plan.

    As used in this part, the term individualized family service plan or 
IFSP has the meaning given the term in 34 CFR 303.340(b).

(Authority: 20 U.S.C. 1401(12))

Sec. 300.18  Local educational agency.

    (a) As used in this part, the term local educational agency means a 
public board of education or other public authority legally constituted 
within a State for either administrative control or direction of, or to 
perform a service function for, public elementary or secondary schools 
in a city, county, township, school district, or other political 
subdivision of a State, or for a combination of school districts or 
counties as are recognized in a State as an administrative agency for 
its public elementary or secondary schools.
    (b) The term includes--
    (1) An educational service agency, as defined in Sec. 300.10;
    (2) Any other public institution or agency having administrative 
control and direction of a public elementary or secondary school, 
including a public charter school that is established as an LEA under 
State law; and
    (3) An elementary or secondary school funded by the Bureau of Indian 
Affairs, and not subject to the jurisdiction of any SEA other than the 
Bureau of Indian Affairs, but only to the extent that the inclusion 
makes the school eligible for programs for which specific eligibility is 
not provided to the school in another provision of law and the school 
does not have a student population that is smaller than the student 
population of the LEA receiving assistance under this Act with the 
smallest student population.

(Authority: 20 U.S.C. 1401(15))

Sec. 300.19  Native language.

    (a) As used in this part, the term native language, if used with 
reference to an individual of limited English proficiency, means the 
following:
    (1) The language normally used by that individual, or, in the case 
of a child, the language normally used by the parents of the child, 
except as provided in paragraph (a)(2) of this section.
    (2) In all direct contact with a child (including evaluation of the 
child), the language normally used by the child in the home or learning 
environment.
    (b) For an individual with deafness or blindness, or for an 
individual with no written language, the mode of communication is that 
normally used by the individual (such as sign language, braille, or oral 
communication).

(Authority: 20 U.S.C. 1401(16))

Sec. 300.20  Parent.

    (a) General. As used in this part, the term parent means--
    (1) A natural or adoptive parent of a child;
    (2) A guardian but not the State if the child is a ward of the 
State;
    (3) A person acting in the place of a parent (such as a grandparent 
or stepparent with whom the child lives, or a person who is legally 
responsible for the child's welfare); or
    (4) A surrogate parent who has been appointed in accordance with 
Sec. 300.515.

[[Page 16]]

    (b) Foster parent. Unless State law prohibits a foster parent from 
acting as a parent, a State may allow a foster parent to act as a parent 
under Part B of the Act if--
    (1) The natural parents' authority to make educational decisions on 
the child's behalf has been extinguished under State law; and
    (2) The foster parent--
    (i) Has an ongoing, long-term parental relationship with the child;
    (ii) Is willing to make the educational decisions required of 
parents under the Act; and
    (iii) Has no interest that would conflict with the interests of the 
child.

(Authority: 20 U.S.C. 1401(19))

Sec. 300.21  Personally identifiable

    As used in this part, the term personally identifiable has the 
meaning given that term in Sec. 300.500(b)(3).

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

Sec. 300.22  Public agency.

    As used in this part, the term public agency includes the SEA, LEAs, 
ESAs, public charter schools that are not otherwise included as LEAs or 
ESAs and are not a school of an LEA or ESA, and any other political 
subdivisions of the State that are responsible for providing education 
to children with disabilities.

(Authority: 20 U.S.C. 1412(a)(1)(A), (a)(11))

Sec. 300.23  Qualified personnel.

    As used in this part, the term qualified personnel means personnel 
who have met SEA-approved or SEA-recognized certification, licensing, 
registration, or other comparable requirements that apply to the area in 
which the individuals are providing special education or related 
services.

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

Sec. 300.24  Related services.

    (a) General. As used in this part, the term related services means 
transportation and such developmental, corrective, and other supportive 
services as are required to assist a child with a disability to benefit 
from special education, and includes speech-language pathology and 
audiology services, psychological services, physical and occupational 
therapy, recreation, including therapeutic recreation, early 
identification and assessment of disabilities in children, counseling 
services, including rehabilitation counseling, orientation and mobility 
services, and medical services for diagnostic or evaluation purposes. 
The term also includes school health services, social work services in 
schools, and parent counseling and training.
    (b) Individual terms defined. The terms used in this definition are 
defined as follows:
    (1) Audiology includes--
    (i) Identification of children with hearing loss;
    (ii) Determination of the range, nature, and degree of hearing loss, 
including referral for medical or other professional attention for the 
habilitation of hearing;
    (iii) Provision of habilitative activities, such as language 
habilitation, auditory training, speech reading (lip-reading), hearing 
evaluation, and speech conservation;
    (iv) Creation and administration of programs for prevention of 
hearing loss;
    (v) Counseling and guidance of children, parents, and teachers 
regarding hearing loss; and
    (vi) Determination of children's needs for group and individual 
amplification, selecting and fitting an appropriate aid, and evaluating 
the effectiveness of amplification.
    (2) Counseling services means services provided by qualified social 
workers, psychologists, guidance counselors, or other qualified 
personnel.
    (3) Early identification and assessment of disabilities in children 
means the implementation of a formal plan for identifying a disability 
as early as possible in a child's life.
    (4) Medical services means services provided by a licensed physician 
to determine a child's medically related disability that results in the 
child's need for special education and related services.
    (5) Occupational therapy--
    (i) Means services provided by a qualified occupational therapist; 
and
    (ii) Includes--

[[Page 17]]

    (A) Improving, developing or restoring functions impaired or lost 
through illness, injury, or deprivation;
    (B) Improving ability to perform tasks for independent functioning 
if functions are impaired or lost; and
    (C) Preventing, through early intervention, initial or further 
impairment or loss of function.
    (6) Orientation and mobility services--
    (i) Means services provided to blind or visually impaired students 
by qualified personnel to enable those students to attain systematic 
orientation to and safe movement within their environments in school, 
home, and community; and
    (ii) Includes teaching students the following, as appropriate:
    (A) Spatial and environmental concepts and use of information 
received by the senses (such as sound, temperature and vibrations) to 
establish, maintain, or regain orientation and line of travel (e.g., 
using sound at a traffic light to cross the street);
    (B) To use the long cane to supplement visual travel skills or as a 
tool for safely negotiating the environment for students with no 
available travel vision;
    (C) To understand and use remaining vision and distance low vision 
aids; and
    (D) Other concepts, techniques, and tools.
    (7) Parent counseling and training means--
    (i) Assisting parents in understanding the special needs of their 
child;
    (ii) Providing parents with information about child development; and
    (iii) Helping parents to acquire the necessary skills that will 
allow them to support the implementation of their child's IEP or IFSP.
    (8) Physical therapy means services provided by a qualified physical 
therapist.
    (9) Psychological services includes--
    (i) Administering psychological and educational tests, and other 
assessment procedures;
    (ii) Interpreting assessment results;
    (iii) Obtaining, integrating, and interpreting information about 
child behavior and conditions relating to learning;
    (iv) Consulting with other staff members in planning school programs 
to meet the special needs of children as indicated by psychological 
tests, interviews, and behavioral evaluations;
    (v) Planning and managing a program of psychological services, 
including psychological counseling for children and parents; and
    (vi) Assisting in developing positive behavioral intervention 
strategies.
    (10) Recreation includes--
    (i) Assessment of leisure function;
    (ii) Therapeutic recreation services;
    (iii) Recreation programs in schools and community agencies; and
    (iv) Leisure education.
    (11) Rehabilitation counseling services means services provided by 
qualified personnel in individual or group sessions that focus 
specifically on career development, employment preparation, achieving 
independence, and integration in the workplace and community of a 
student with a disability. The term also includes vocational 
rehabilitation services provided to a student with disabilities by 
vocational rehabilitation programs funded under the Rehabilitation Act 
of 1973, as amended.
    (12) School health services means services provided by a qualified 
school nurse or other qualified person.
    (13) Social work services in schools includes--
    (i) Preparing a social or developmental history on a child with a 
disability;
    (ii) Group and individual counseling with the child and family;
    (iii) Working in partnership with parents and others on those 
problems in a child's living situation (home, school, and community) 
that affect the child's adjustment in school;
    (iv) Mobilizing school and community resources to enable the child 
to learn as effectively as possible in his or her educational program; 
and
    (v) Assisting in developing positive behavioral intervention 
strategies.
    (14) Speech-language pathology services includes--
    (i) Identification of children with speech or language impairments;
    (ii) Diagnosis and appraisal of specific speech or language 
impairments;
    (iii) Referral for medical or other professional attention necessary 
for

[[Page 18]]

the habilitation of speech or language impairments;
    (iv) Provision of speech and language services for the habilitation 
or prevention of communicative impairments; and
    (v) Counseling and guidance of parents, children, and teachers 
regarding speech and language impairments.
    (15) Transportation includes--
    (i) Travel to and from school and between schools;
    (ii) Travel in and around school buildings; and
    (iii) Specialized equipment (such as special or adapted buses, 
lifts, and ramps), if required to provide special transportation for a 
child with a disability.

(Authority: 20 U.S.C. 1401(22))

Sec. 300.25  Secondary school.

    As used in this part, the term secondary school means a nonprofit 
institutional day or residential school that provides secondary 
education, as determined under State law, except that it does not 
include any education beyond grade 12.

(Authority: 20 U.S.C. 1401(23))

Sec. 300.26  Special education.

    (a) General. (1) As used in this part, the term special education 
means specially designed instruction, at no cost to the parents, to meet 
the unique needs of a child with a disability, including--
    (i) Instruction conducted in the classroom, in the home, in 
hospitals and institutions, and in other settings; and
    (ii) Instruction in physical education.
    (2) The term includes each of the following, if it meets the 
requirements of paragraph (a)(1) of this section:
    (i) Speech-language pathology services, or any other related 
service, if the service is considered special education rather than a 
related service under State standards;
    (ii) Travel training; and
    (iii) Vocational education.
    (b) Individual terms defined. The terms in this definition are 
defined as follows:
    (1) At no cost means that all specially-designed instruction is 
provided without charge, but does not preclude incidental fees that are 
normally charged to nondisabled students or their parents as a part of 
the regular education program.
    (2) Physical education--
    (i) Means the development of--
    (A) Physical and motor fitness;
    (B) Fundamental motor skills and patterns; and
    (C) Skills in aquatics, dance, and individual and group games and 
sports (including intramural and lifetime sports); and
    (ii) Includes special physical education, adapted physical 
education, movement education, and motor development.
    (3) Specially-designed instruction means adapting, as appropriate to 
the needs of an eligible child under this part, the content, 
methodology, or delivery of instruction--
    (i) To address the unique needs of the child that result from the 
child's disability; and
    (ii) To ensure access of the child to the general curriculum, so 
that he or she can meet the educational standards within the 
jurisdiction of the public agency that apply to all children.
    (4) Travel training means providing instruction, as appropriate, to 
children with significant cognitive disabilities, and any other children 
with disabilities who require this instruction, to enable them to--
    (i) Develop an awareness of the environment in which they live; and
    (ii) Learn the skills necessary to move effectively and safely from 
place to place within that environment (e.g., in school, in the home, at 
work, and in the community).
    (5) Vocational education means organized educational programs that 
are directly related to the preparation of individuals for paid or 
unpaid employment, or for additional preparation for a career requiring 
other than a baccalaureate or advanced degree.

(Authority: 20 U.S.C. 1401(25))

Sec. 300.27  State.

    As used in this part, the term State means each of the 50 States, 
the District of Columbia, the Commonwealth

[[Page 19]]

of Puerto Rico, and each of the outlying areas.

(Authority: 20 U.S.C. 1401(27))

Sec. 300.28  Supplementary aids and services.

    As used in this part, the term supplementary aids and services 
means, aids, services, and other supports that are provided in regular 
education classes or other education-related settings to enable children 
with disabilities to be educated with nondisabled children to the 
maximum extent appropriate in accordance with Secs. 300.550-300.556.

Authority: 20 U.S.C. 1401(29))

Sec. 300.29  Transition services.

    (a) As used in this part, transition services means 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.
    (b) Transition services for students with disabilities may be 
special education, if provided as specially designed instruction, or 
related services, if required to assist a student with a disability to 
benefit from special education.

(Authority: 20 U.S.C. 1401(30))

Sec. 300.30  Definitions in EDGAR.

    The following terms used in this part are defined in 34 CFR 77.1:

Application
Award
Contract
Department
EDGAR
Elementary school
Fiscal year
Grant
Nonprofit
Project
Secretary
Subgrant
State educational agency

(Authority: 20 U.S.C. 1221e-3(a)(1))

                 Subpart B--State and Local Eligibility
 
Sec. 300.110  Condition of assistance.

                       State Eligibility--General

    (a) A State is eligible for assistance under Part B of the Act for a 
fiscal year if the State demonstrates to the satisfaction of the 
Secretary that the State has in effect policies and procedures to ensure 
that it meets the conditions in Secs. 300.121-300.156.
    (b) To meet the requirement of paragraph (a) of this section, the 
State must have on file with the Secretary--
    (1) The information specified in Secs. 300.121-300.156 that the 
State uses to implement the requirements of this part; and
    (2) Copies of all applicable State statutes, regulations, and other 
State documents that show the basis of that information.

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

Sec. 300.111  Exception for prior State policies and 
procedures on file with the Secretary.

    If a State has on file with the Secretary policies and procedures 
approved by the Secretary that demonstrate that the State meets any 
requirement of Sec. 300.110, including any policies and procedures filed 
under Part B of the Act as in effect before June 4, 1997, the Secretary 
considers the State to have met the requirement for purposes of 
receiving a grant under Part B of the Act.

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

[[Page 20]]


Sec. 300.112  Amendments to State policies and procedures.

    (a) Modifications made by a State. (1) Subject to paragraph (b) of 
this section, policies and procedures submitted by a State in accordance 
with this subpart remain in effect until the State submits to the 
Secretary the modifications that the State decides are necessary.
    (2) The provisions of this subpart apply to a modification to a 
State's policies and procedures in the same manner and to the same 
extent that they apply to the State's original policies and procedures.
    (b) Modifications required by the Secretary. The Secretary may 
require a State to modify its policies and procedures, but only to the 
extent necessary to ensure the State's compliance with this part, if--
    (1) After June 4, 1997, the provisions of the Act or the regulations 
in this part are amended;
    (2) There is a new interpretation of this Act or regulations by a 
Federal court or a State's highest court; or
    (3) There is an official finding of noncompliance with Federal law 
or regulations.

(Authority: 20 U.S.C. 1412(c)(2) and (3))

Secs. 300.114-300.120  [Reserved]

                 State Eligibility--Specific Conditions


Sec. 300.121  Free appropriate public education (FAPE).

    (a) General. Each State must have on file with the Secretary 
information that shows that, subject to Sec. 300.122, the State has in 
effect a policy that ensures that all children with disabilities aged 3 
through 21 residing in the State have the right to FAPE, including 
children with disabilities who have been suspended or expelled from 
school.
    (b) Required information. The information described in paragraph (a) 
of this section must--
    (1) Include a copy of each State statute, court order, State 
Attorney General opinion, and other State documents that show the source 
of the State's policy relating to FAPE; and
    (2) Show that the policy--
    (i)(A) Applies to all public agencies in the State; and
    (B) Is consistent with the requirements of Secs. 300.300-300.313; 
and
    (ii) Applies to all children with disabilities, including children 
who have been suspended or expelled from school.
    (c) FAPE for children beginning at age 3. (1) Each State shall 
ensure that--
    (i) The obligation to make FAPE available to each eligible child 
residing in the State begins no later than the child's third birthday; 
and
    (ii) An IEP or an IFSP is in effect for the child by that date, in 
accordance with Sec. 300.342(c).
    (2) If a child's third birthday occurs during the summer, the 
child's IEP team shall determine the date when services under the IEP or 
IFSP will begin.
    (d) FAPE for children suspended or expelled from school. (1) A 
public agency need not provide services during periods of removal under 
Sec. 300.520(a)(1) to a child with a disability who has been removed 
from his or her current placement for 10 school days or less in that

[[Page 21]]

school year, if services are not provided to a child without 
disabilities who has been similarly removed.
    (2) In the case of a child with a disability who has been removed 
from his or her current placement for more than 10 school days in that 
school year, the public agency, for the remainder of the removals, 
must--
    (i) Provide services to the extent necessary to enable the child to 
appropriately progress in the general curriculum and appropriately 
advance toward achieving the goals set out in the child's IEP, if the 
removal is--
    (A) Under the school personnel's authority to remove for not more 
than 10 consecutive school days as long as that removal does not 
constitute a change of placement under Sec. 300.519(b) 
(Sec. 300.520((a)(1)); or
    (B) For behavior that is not a manifestation of the child's 
disability, consistent with Sec. 300.524; and
    (ii) Provide services consistent with Sec. 300.522, regarding 
determination of the appropriate interim alternative educational 
setting, if the removal is--
    (A) For drug or weapons offenses under Sec. 300.520(a)(2); or
    (B) Based on a hearing officer determination that maintaining the 
current placement of the child is substantially likely to result in 
injury to the child or to others if he or she remains in the current 
placement, consistent with Sec. 300.521.
    (3)(i) School personnel, in consultation with the child's special 
education teacher, determine the extent to which services are necessary 
to enable the child to appropriately progress in the general curriculum 
and appropriately advance toward achieving the goals set out in the 
child's IEP if the child is removed under the authority of school 
personnel to remove for not more than 10 consecutive school days as long 
as that removal does not constitute a change of placement under 
Sec. 300.519 (Sec. 300.520(a)(1)).
    (ii) The child's IEP team determines the extent to which services 
are necessary to enable the child to appropriately progress in the 
general curriculum and appropriately advance toward achieving the goals 
set out in the child's IEP if the child is removed because of behavior 
that has been determined not to be a manifestation of the child's 
disability, consistent with Sec. 300.524.
    (e) Children advancing from grade to grade. (1) Each State shall 
ensure that FAPE is available to any individual child with a disability 
who needs special education and related services, even though the child 
is advancing from grade to grade.
    (2) The determination that a child described in paragraph (a)(1) of 
this section is eligible under this part, must be made on an individual 
basis by the group responsible within the child's LEA for making those 
determinations.

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



Sec. 300.122  Exception to FAPE for certain ages.

    (a) General. The obligation to make FAPE available to all children 
with disabilities does not apply with respect to the following:
    (1) Children aged 3, 4, 5, 18, 19, 20, or 21 in a State to the 
extent that its application to those children would be inconsistent with 
State law or practice, or the order of any court, respecting the 
provision of public education to children in one or more of those age 
groups.
    (2)(i) Students aged 18 through 21 to the extent that State law does 
not require that special education and related services under Part B of 
the Act be provided to students with disabilities who, in the last 
educational placement prior to their incarceration in an adult 
correctional facility--
    (A) Were not actually identified as being a child with a disability 
under Sec. 300.7; and
    (B) Did not have an IEP under Part B of the Act.
    (ii) The exception in paragraph (a)(2)(i) of this section does not 
apply to students with disabilities, aged 18 through 21, who--
    (A) Had been identified as a child with disability and had received 
services in accordance with an IEP, but who left school prior to their 
incarceration; or
    (B) Did not have an IEP in their last educational setting, but who 
had actually been identified as a ``child with a disability'' under 
Sec. 300.7.

[[Page 22]]

    (3)(i) Students with disabilities who have graduated from high 
school with a regular high school diploma.
    (ii) The exception in paragraph (a)(3)(i) of this section does not 
apply to students who have graduated but have not been awarded a regular 
high school diploma.
    (iii) Graduation from high school with a regular diploma constitutes 
a change in placement, requiring written prior notice in accordance with 
Sec. 300.503.
    (b) Documents relating to exceptions. The State must have on file 
with the Secretary--
    (1)(i) Information that describes in detail the extent to which the 
exception in paragraph (a)(1) of this section applies to the State; and
    (ii) A copy of each State law, court order, and other documents that 
provide a basis for the exception; and
    (2) With respect to paragraph (a)(2) of this section, a copy of the 
State law that excludes from services under Part B of the Act certain 
students who are incarcerated in an adult correctional facility.

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



Sec. 300.123  Full educational opportunity goal (FEOG).

    The State must have on file with the Secretary detailed policies and 
procedures through which the State has established a goal of providing 
full educational opportunity to all children with disabilities aged 
birth through 21.

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

Sec. 300.124  FEOG--timetable.

    The State must have on file with the Secretary a detailed timetable 
for accomplishing the goal of providing full educational opportunity for 
all children with disabilities.

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

Sec. 300.125  Child find.

    (a) General requirement. (1) The State must have in effect policies 
and procedures to ensure that--
    (i) All children with disabilities residing in the State, including 
children with disabilities attending private schools, regardless of the 
severity of their disability, and who are in need of special education 
and related services, are identified, located, and evaluated; and
    (ii) A practical method is developed and implemented to determine 
which children are currently receiving needed special education and 
related services.
    (2) The requirements of paragraph (a)(1) of this section apply to--
    (i) Highly mobile children with disabilities (such as migrant and 
homeless children); and
    (ii) Children who are suspected of being a child with a disability 
under Sec. 300.7 and in need of special education, even though they are 
advancing from grade to grade.
    (b) Documents relating to child find. The State must have on file 
with the Secretary the policies and procedures described in paragraph 
(a) of this section, including--
    (1) The name of the State agency (if other than the SEA) responsible 
for coordinating the planning and implementation of the policies and 
procedures under paragraph (a) of this section;
    (2) The name of each agency that participates in the planning and 
implementation of the child find activities and a description of the 
nature and extent of its participation;
    (3) A description of how the policies and procedures under paragraph 
(a) of this section will be monitored to ensure that the SEA obtains--
    (i) The number of children with disabilities within each disability 
category that have been identified, located, and evaluated; and
    (ii) Information adequate to evaluate the effectiveness of those 
policies and procedures; and
    (4) A description of the method the State uses to determine which 
children are currently receiving special education and related services.
    (c) Child find for children from birth through age 2 when the SEA 
and lead agency for the Part C program are different. (1) In States 
where the SEA and the State's lead agency for the Part C program are 
different and the Part C lead agency will be participating in the child 
find activities described in paragraph (a) of this section, a 
description of the nature and extent of the Part C

[[Page 23]]

lead agency's participation must be included under paragraph (b)(2) of 
this section.
    (2) With the SEA's agreement, the Part C lead agency's participation 
may include the actual implementation of child find activities for 
infants and toddlers with disabilities.
    (3) The use of an interagency agreement or other mechanism for 
providing for the Part C lead agency's participation does not alter or 
diminish the responsibility of the SEA to ensure compliance with the 
requirements of this section.
    (d) Construction. Nothing in the Act requires that children be 
classified by their disability so long as each child who has a 
disability listed in Sec. 300.7 and who, by reason of that disability, 
needs special education and related services is regarded as a child with 
a disability under Part B of the Act.
    (e) Confidentiality of child find data. The collection and use of 
data to meet the requirements of this section are subject to the 
confidentiality requirements of Secs. 300.560-300.577.

(Authority: 20 U.S.C. 1412 (a)(3)(A) and (B))



Sec. 300.126  Procedures for evaluation and determination of eligibility.

    The State must have on file with the Secretary policies and 
procedures that ensure that the requirements of Secs. 300.530-300.536 
are met.

(Authority: 20 U.S.C. 1412(a)(6)(B), (7))


Sec. 300.127  Confidentiality of personally identifiable information.

    (a) The State must have on file in detail the policies and 
procedures that the State has undertaken to ensure protection of the 
confidentiality of any personally identifiable information, collected, 
used, or maintained under Part B of the Act.
    (b) The Secretary uses the criteria in Secs. 300.560-300.576 to 
evaluate the policies and procedures of the State under paragraph (a) of 
this section.

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

Sec. 300.128  Individualized education programs.

    (a) General. The State must have on file with the Secretary 
information that shows that an IEP, or an IFSP that meets the 
requirements of section 636(d) of the Act, is developed, reviewed, and 
revised for each child with a disability in accordance with 
Secs. 300.340-300.350.
    (b) Required information. The information described in paragraph (a) 
of this section must include--
    (1) A copy of each State statute, policy, and standard that 
regulates the manner in which IEPs are developed, implemented, reviewed, 
and revised; and
    (2) The procedures that the SEA follows in monitoring and evaluating 
those IEPs or IFSPs.

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


Sec. 300.129  Procedural safeguards.

    (a) The State must have on file with the Secretary procedural 
safeguards that ensure that the requirements of Secs. 300.500-300.529 
are met.
    (b) Children with disabilities and their parents must be afforded 
the procedural safeguards identified in paragraph (a) of this section.

(Authority: 20 U.S.C. 1412(a)(6)(A))



Sec. 300.130  Least restrictive environment.

    (a) General. The State must have on file with the Secretary 
procedures that ensure that the requirements of Secs. 300.550-300.556 
are met, including the provision in Sec. 300.551 requiring a continuum 
of alternative placements to meet the unique needs of each child with a 
disability.
    (b) Additional requirement. (1) If the State uses a funding 
mechanism by which the State distributes State funds on the basis of the 
type of setting where a child is served, the funding mechanism may not 
result in placements that violate the requirements of paragraph (a) of 
this section.
    (2) If the State does not have policies and procedures to ensure 
compliance with paragraph (b)(1) of this section, the State must provide 
the Secretary an assurance that the State will revise the funding 
mechanism as soon as feasible to ensure that the mechanism does not 
result in placements that violate that paragraph.

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

[[Page 24]]



Sec. 300.132  Transition of children from Part C to preschool programs.

    The State must have on file with the Secretary policies and 
procedures to ensure that--
    (a) Children participating in early-intervention programs assisted 
under Part C of the Act, and who will participate in preschool programs 
assisted under Part B of the Act, experience a smooth and effective 
transition to those preschool programs in a manner consistent with 
section 637(a)(8) of the Act;
    (b) By the third birthday of a child described in paragraph (a) of 
this section, an IEP or, if consistent with Sec. 300.342(c) and section 
636(d) of the Act, an IFSP, has been developed and is being implemented 
for the child consistent with Sec. 300.121(c); and
    (c) Each LEA will participate in transition planning conferences 
arranged by the designated lead agency under section 637(a)(8) of the 
Act.

(Authority: 20 U.S.C. 1412(a)(9))



Sec. 300.133  Children in private schools.

    The State must have on file with the Secretary policies and 
procedures that ensure that the requirements of Secs. 300.400-300.403 
and Secs. 300.450-300.462 are met.

(Authority: 20 U.S.C. 1413(a)(4))


Sec. 300.135  Comprehensive system of personnel development.

    (a) General. The State must have in effect, consistent with the 
purposes of this part and with section 635(a)(8) of the Act, a 
comprehensive system of personnel development that--
    (1) Is designed to ensure an adequate supply of qualified special 
education, regular education, and related services personnel; and
    (2) Meets the requirements for a State improvement plan relating to 
personnel development in section 653(b)(2)(B) and (c)(3)(D) of the Act.
    (b) Information. The State must have on file with the Secretary 
information that shows that the requirements of paragraph (a) of this 
section are met.

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


Sec. 300.136  Personnel standards.

    (a) Definitions. As used in this part--
    (1) Appropriate professional requirements in the State means entry 
level requirements that--
    (i) Are based on the highest requirements in the State applicable to 
the profession or discipline in which a person is providing special 
education or related services; and
    (ii) Establish suitable qualifications for personnel providing 
special education and related services under Part B of the Act to 
children with disabilities who are served by State, local, and private 
agencies (see Sec. 300.2);
    (2) Highest requirements in the State applicable to a specific 
profession or discipline means the highest entry-level academic degree 
needed for any State-approved or -recognized certification, licensing, 
registration, or other comparable requirements that apply to that 
profession or discipline;
    (3) Profession or discipline means a specific occupational category 
that--
    (i) Provides special education and related services to children with 
disabilities under Part B of the Act;
    (ii) Has been established or designated by the State;
    (iii) Has a required scope of responsibility and degree of 
supervision; and
    (iv) Is not limited to traditional occupational categories; and
    (4) State-approved or -recognized certification, licensing, 
registration, or other comparable requirements means the requirements 
that a State legislature either has enacted or has authorized a State 
agency to promulgate through rules to establish the entry-level 
standards for employment in a specific profession or discipline in that 
State.
    (b) Policies and procedures. (1)(i) The State must have on file with 
the Secretary policies and procedures relating to the establishment and 
maintenance of standards to ensure that personnel necessary to carry out 
the purposes of this part are appropriately and adequately prepared and 
trained.

[[Page 25]]

    (ii) The policies and procedures required in paragraph (b)(1)(i) of 
this section must provide for the establishment and maintenance of 
standards that are consistent with any State-approved or -recognized 
certification, licensing, registration, or other comparable requirements 
that apply to the profession or discipline in which a person is 
providing special education or related services.
    (2) Each State may--
    (i) Determine the specific occupational categories required to 
provide special education and related services within the State; and
    (ii) Revise or expand those categories as needed.
    (3) Nothing in this part requires a State to establish a specified 
training standard (e.g., a masters degree) for personnel who provide 
special education and related services under Part B of the Act.
    (4) A State with only one entry-level academic degree for employment 
of personnel in a specific profession or discipline may modify that 
standard as necessary to ensure the provision of FAPE to all children 
with disabilities in the State without violating the requirements of 
this section.
    (c) Steps for retraining or hiring personnel. To the extent that a 
State's standards for a profession or discipline, including standards 
for temporary or emergency certification, are not based on the highest 
requirements in the State applicable to a specific profession or 
discipline, the State must provide the steps the State is taking and the 
procedures for notifying public agencies and personnel of those steps 
and the timelines it has established for the retraining or hiring of 
personnel to meet appropriate professional requirements in the State.
    (d) Status of personnel standards in the State. (1) In meeting the 
requirements in paragraphs (b) and (c) of this section, a determination 
must be made about the status of personnel standards in the State. That 
determination must be based on current information that accurately 
describes, for each profession or discipline in which personnel are 
providing special education or related services, whether the applicable 
standards are consistent with the highest requirements in the State for 
that profession or discipline.
    (2) The information required in paragraph (d)(1) of this section 
must be on file in the SEA and available to the public.
    (e) Applicability of State statutes and agency rules. In identifying 
the highest requirements in the State for purposes of this section, the 
requirements of all State statutes and the rules of all State agencies 
applicable to serving children with disabilities must be considered.
    (f) Use of paraprofessionals and assistants. A State may allow 
paraprofessionals and assistants who are appropriately trained and 
supervised, in accordance with State law, regulations, or written 
policy, in meeting the requirements of this part to be used to assist in 
the provision of special education and related services to children with 
disabilities under Part B of the Act.
    (g) Policy to address shortage of personnel. (1) In implementing 
this section, a State may adopt a policy that includes a requirement 
that LEAs in the State make an ongoing good faith effort to recruit and 
hire appropriately and adequately trained personnel to provide special 
education and related services to children with disabilities, including, 
in a geographic area of the State where there is a shortage of personnel 
that meet these qualifications, the most qualified individuals available 
who are making satisfactory progress toward completing applicable course 
work necessary to meet the standards described in paragraph (b)(2) of 
this section, consistent with State law and the steps described in 
paragraph (c) of this section, within three years.
    (2) If a State has reached its established date under paragraph (c) 
of this section, the State may still exercise the option under paragraph 
(g)(1) of this section for training or hiring all personnel in a 
specific profession or discipline to meet appropriate professional 
requirements in the State.
    (3)(i) Each State must have a mechanism for serving children with 
disabilities if instructional needs exceed available personnel who meet 
appropriate professional requirements in the

[[Page 26]]

State for a specific profession or discipline.
    (ii) A State that continues to experience shortages of qualified 
personnel must address those shortages in its comprehensive system of 
personnel development under Sec. 300.135.

(Authority: 20 U.S.C. 1412(a)(15))



Sec. 300.137  Performance goals and indicators.

    The State must have on file with the Secretary information to 
demonstrate that the State--
    (a) Has established goals for the performance of children with 
disabilities in the State that--
    (1) Will promote the purposes of this part, as stated in Sec. 300.1; 
and
    (2) Are consistent, to the maximum extent appropriate, with other 
goals and standards for all children established by the State;
    (b) Has established performance indicators that the State will use 
to assess progress toward achieving those goals that, at a minimum, 
address the performance of children with disabilities on assessments, 
drop-out rates, and graduation rates;
    (c) Every two years, will report to the Secretary and the public on 
the progress of the State, and of children with disabilities in the 
State, toward meeting the goals established under paragraph (a) of this 
section; and
    (d) Based on its assessment of that progress, will revise its State 
improvement plan under subpart 1 of Part D of the Act as may be needed 
to improve its performance, if the State receives assistance under that 
subpart.

(Authority: 20 U.S.C. 1412(a)(16))



Sec. 300.138  Participation in assessments.

    The State must have on file with the Secretary information to 
demonstrate that--
    (a) Children with disabilities are included in general State and 
district-wide assessment programs, with appropriate accommodations and 
modifications in administration, if necessary;
    (b) As appropriate, the State or LEA--
    (1) Develops guidelines for the participation of children with 
disabilities in alternate assessments for those children who cannot 
participate in State and district-wide assessment programs;
    (2) Develops alternate assessments in accordance with paragraph 
(b)(1) of this section; and
    (3) Beginning not later than, July 1, 2000, conducts the alternate 
assessments described in paragraph (b)(2) of this section.

(Authority: 20 U.S.C. 1412(a)(17)(A))



Sec. 300.139  Reports relating to assessments.

    (a) General. In implementing the requirements of Sec. 300.138, the 
SEA shall make available to the public, and report to the public with 
the same frequency and in the same detail as it reports on the 
assessment of nondisabled children, the following information:
    (1) The number of children with disabilities participating--
    (i) In regular assessments; and
    (ii) In alternate assessments.
    (2) The performance results of the children described in paragraph 
(a)(1) of this section if doing so would be statistically sound and 
would not result in the disclosure of performance results identifiable 
to individual children--
    (i) On regular assessments (beginning not later than July 1, 1998); 
and
    (ii) On alternate assessments (not later than July 1, 2000).
    (b) Combined reports. Reports to the public under paragraph (a) of 
this section must include--
    (1) Aggregated data that include the performance of children with 
disabilities together with all other children; and
    (2) Disaggregated data on the performance of children with 
disabilities.
    (c) Timeline for disaggregation of data. Data relating to the 
performance of children described under paragraph (a)(2) of this section 
must be disaggregated--
    (1) For assessments conducted after July 1, 1998; and
    (2) For assessments conducted before July 1, 1998, if the State is 
required to disaggregate the data prior to July 1, 1998.

(Authority: 20 U.S.C. 612(a)(17)(B))

[[Page 27]]


Sec. 300.141  SEA responsibility for general supervision.

    (a) The State must have on file with the Secretary information that 
shows that the requirements of Sec. 300.600 are met.
    (b) The information described under paragraph (a) of this section 
must include a copy of each State statute, State regulation, signed 
agreement between respective agency officials, and any other documents 
that show compliance with that paragraph.

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

Sec. 300.142  Methods of ensuring services.

    (a) Establishing responsibility for services. The Chief Executive 
Officer or designee of that officer shall ensure that an interagency 
agreement or other mechanism for interagency coordination is in effect 
between each noneducational public agency described in paragraph (b) of 
this section and the SEA, in order to ensure that all services described 
in paragraph (b)(1) of this section that are needed to ensure FAPE are 
provided, including the provision of these services during the pendency 
of any dispute under paragraph (a)(3) of this section. The agreement or 
mechanism must include the following:
    (1) Agency financial responsibility. An identification of, or a 
method for defining, the financial responsibility of each agency for 
providing services described in paragraph (b)(1) of this section to 
ensure FAPE to children with disabilities. The financial responsibility 
of each noneducational public agency described in paragraph (b) of this 
section, including the State Medicaid agency and other public insurers 
of children with disabilities, must precede the financial responsibility 
of the LEA (or the State agency responsible for developing the child's 
IEP).
    (2) Conditions and terms of reimbursement. The conditions, terms, 
and procedures under which an LEA must be reimbursed by other agencies.
    (3) Interagency disputes. Procedures for resolving interagency 
disputes (including procedures under which LEAs may initiate 
proceedings) under the agreement or other mechanism to secure 
reimbursement from other agencies or otherwise implement the provisions 
of the agreement or mechanism.
    (4) Coordination of services procedures. Policies and procedures for 
agencies to determine and identify the interagency coordination 
responsibilities of each agency to promote the coordination and timely 
and appropriate delivery of services described in paragraph (b)(1) of 
this section.
    (b) Obligation of noneducational public agencies. (1) General. (i) 
If any public agency other than an educational agency is otherwise 
obligated under Federal or State law, or assigned responsibility under 
State policy or pursuant to paragraph (a) of this section, to provide or 
pay for any services that are also considered special education or 
related services (such as, but not limited to, services described in 
Sec. 300.5 relating to assistive technology devices, Sec. 300.6 relating 
to assistive technology services, Sec. 300.24 relating to related 
services, Sec. 300.28 relating to supplementary aids and services, and 
Sec. 300.29 relating to transition services) that are necessary for 
ensuring FAPE to children with disabilities within the State, the public 
agency shall fulfill that obligation or responsibility, either directly 
or through contract or other arrangement.
    (ii) A noneducational public agency described in paragraph (b)(1)(i) 
of this section may not disqualify an eligible service for Medicaid 
reimbursement because that service is provided in a school context.
    (2) Reimbursement for services by noneducational public agency. If a 
public agency other than an educational agency fails to provide or pay 
for the special education and related services described in paragraph 
(b)(1) of this section, the LEA (or State agency responsible for 
developing the child's IEP) shall provide or pay for these services to 
the child in a timely manner. The LEA or State agency may then claim 
reimbursement for the services from the noneducational public agency 
that failed to provide or pay for these services and that agency shall 
reimburse the LEA or State agency in accordance with the terms of the 
interagency

[[Page 28]]

agreement or other mechanism described in paragraph (a)(1) of this 
section, and the agreement described in paragraph (a)(2) of this 
section.
    (c) Special rule. The requirements of paragraph (a) of this section 
may be met through--
    (1) State statute or regulation;
    (2) Signed agreements between respective agency officials that 
clearly identify the responsibilities of each agency relating to the 
provision of services; or
    (3) Other appropriate written methods as determined by the Chief 
Executive Officer of the State or designee of that officer.
    (d) Information. The State must have on file with the Secretary 
information to demonstrate that the requirements of paragraphs (a) 
through (c) of this section are met.
    (e) Children with disabilities who are covered by public insurance. 
(1) A public agency may use the Medicaid or other public insurance 
benefits programs in which a child participates to provide or pay for 
services required under this part, as permitted under the public 
insurance program, except as provided in paragraph (e)(2) of this 
section.
    (2) With regard to services required to provide FAPE to an eligible 
child under this part, the public agency--
    (i) May not require parents to sign up for or enroll in public 
insurance programs in order for their child to receive FAPE under Part B 
of the Act;
    (ii) May not require parents to incur an out-of-pocket expense such 
as the payment of a deductible or co-pay amount incurred in filing a 
claim for services provided pursuant to this part, but pursuant to 
paragraph (g)(2) of this section, may pay the cost that the parent 
otherwise would be required to pay; and
    (iii) May not use a child's benefits under a public insurance 
program if that use would--
    (A) Decrease available lifetime coverage or any other insured 
benefit;
    (B) Result in the family paying for services that would otherwise be 
covered by the public insurance program and that are required for the 
child outside of the time the child is in school;
    (C) Increase premiums or lead to the discontinuation of insurance; 
or
    (D) Risk loss of eligibility for home and community-based waivers, 
based on aggregate health-related expenditures.
    (f) Children with disabilities who are covered by private insurance. 
(1) With regard to services required to provide FAPE to an eligible 
child under this part, a public agency may access a parent's private 
insurance proceeds only if the parent provides informed consent 
consistent with Sec. 300.500(b)(1).
    (2) Each time the public agency proposes to access the parent's 
private insurance proceeds, it must--
    (i) Obtain parent consent in accordance with paragraph (f)(1) of 
this section; and
    (ii) Inform the parents that their refusal to permit the public 
agency to access their private insurance does not relieve the public 
agency of its responsibility to ensure that all required services are 
provided at no cost to the parents.
    (g) Use of Part B funds. (1) If a public agency is unable to obtain 
parental consent to use the parent's private insurance, or public 
insurance when the parent would incur a cost for a specified service 
required under this part, to ensure FAPE the public agency may use its 
Part B funds to pay for the service.
    (2) To avoid financial cost to parents who otherwise would consent 
to use private insurance, or public insurance if the parent would incur 
a cost, the public agency may use its Part B funds to pay the cost the 
parents otherwise would have to pay to use the parent's insurance (e.g., 
the deductible or co-pay amounts).
    (h) Proceeds from public or private insurance. (1) Proceeds from 
public or private insurance will not be treated as program income for 
purposes of 34 CFR 80.25.
    (2) If a public agency spends reimbursements from Federal funds 
(e.g., Medicaid) for services under this part, those funds will not be 
considered ``State or local'' funds for purposes of the maintenance of 
effort provisions in Secs. 300.154 and 300.231.

[[Page 29]]

    (i) Construction. Nothing in this part should be construed to alter 
the requirements imposed on a State Medicaid agency, or any other agency 
administering a public insurance program by Federal statute, regulations 
or policy under title XIX, or title XXI of the Social Security Act, or 
any other public insurance program.

(Authority: 20 U.S.C. 1412(a)(12)(A), (B), and (C); 1401(8))


Sec. 300.143  SEA implementation of procedural safeguards.

    The State must have on file with the Secretary the procedures that 
the SEA (and any agency assigned responsibility pursuant to 
Sec. 300.600(d)) follows to inform each public agency of its 
responsibility for ensuring effective implementation of procedural 
safeguards for the children with disabilities served by that public 
agency.

(Authority: 20 U.S.C. 1412(a)(11); 1415(a))


Sec. 300.144  Hearings relating to LEA eligibility.

    The State must have on file with the Secretary procedures to ensure 
that the SEA does not make any final determination that an LEA is not 
eligible for assistance under Part B of the Act without first giving the 
LEA reasonable notice and an opportunity for a hearing under 34 CFR 
76.401(d).

(Authority: 20 U.S.C. 1412(a)(13))


Sec. 300.145  Recovery of funds for misclassified children.

    The State must have on file with the Secretary policies and 
procedures that ensure that the State seeks to recover any funds 
provided under Part B of the Act for services to a child who is 
determined to be erroneously classified as eligible to be counted under 
section 611(a) or (d) of the Act.

(Authority: 20 U.S.C. 1221e-3(a)(1))


Sec. 300.146  Suspension and expulsion rates.

    The State must have on file with the Secretary information to 
demonstrate that the following requirements are met:
    (a) General. The SEA examines data to determine if significant 
discrepancies are occurring in the rate of long-term suspensions and 
expulsions of children with disabilities--
    (1) Among LEAs in the State; or
    (2) Compared to the rates for nondisabled children within the 
agencies.
    (b) Review and revision of policies. If the discrepancies described 
in paragraph (a) of this section are occurring, the SEA reviews and, if 
appropriate, revises (or requires the affected State agency or LEA to 
revise) its policies, procedures, and practices relating to the 
development and implementation of IEPs, the use of behavioral 
interventions, and procedural safeguards, to ensure that these policies, 
procedures, and practices comply with the Act.

(Authority: 20 U.S.C. 612(a)(22))


Sec. 300.147  Additional information if SEA provides direct services.

    (a) If the SEA provides FAPE to children with disabilities, or 
provides direct services to these children, the agency--
    (1) Shall comply with any additional requirements of Secs. 300.220-
300.230(a) and 300.234-300.250 as if the agency were an LEA; and
    (2) May use amounts that are otherwise available to the agency under 
Part B of the Act to serve those children without regard to Sec. 300.184 
(relating to excess costs).
    (b) The SEA must have on file with the Secretary information to 
demonstrate that it meets the requirements of paragraph (a)(1) of this 
section.

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


Sec. 300.148  Public participation.

    (a) General; exception. (1) Subject to paragraph (a)(2) of this 
section, each State must ensure that, prior to the adoption of any 
policies and procedures needed to comply with this part, there are 
public hearings, adequate notice of the hearings, and an opportunity for 
comment available to the general public, including individuals with 
disabilities and parents of children with disabilities consistent with 
Secs. 300.280-300.284.
    (2) A State will be considered to have met paragraph (a)(1) of this 
section with regard to a policy or procedure needed to comply with this 
part if it

[[Page 30]]

can demonstrate that prior to the adoption of that policy or procedure, 
the policy or procedure was subjected to a public review and comment 
process that is required by the State for other purposes and is 
comparable to and consistent with the requirements of Secs. 300.280-
300.284.
    (b) Documentation. The State must have on file with the Secretary 
information to demonstrate that the requirements of paragraph (a) of 
this section are met.

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



Sec. 300.150  State advisory panel.

    The State must have on file with the Secretary information to 
demonstrate that the State has established and maintains an advisory 
panel for the purpose of providing policy guidance with respect to 
special education and related services for children with disabilities in 
the State in accordance with the requirements of Secs. 300.650-300.653.

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

Sec. 300.152  Prohibition against commingling.

    (a) The State must have on file with the Secretary an assurance 
satisfactory to the Secretary that the funds under Part B of the Act are 
not commingled with State funds.
    (b) The assurance in paragraph (a) of this section is satisfied by 
the use of a separate accounting system that includes an audit trail of 
the expenditure of the Part B funds. Separate bank accounts are not 
required. (See 34 CFR 76.702 (Fiscal control and fund accounting 
procedures).)

(Authority: 20 U.S.C. 1412(a)(18)(B))

Sec. 300.153  State-level nonsupplanting.

    (a) General. (1) Except as provided in Sec. 300.230, funds paid to a 
State under Part B of the Act must be used to supplement the level of 
Federal, State, and local funds (including funds that are not under the 
direct control of the SEA 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 these Federal, State, and local 
funds.
    (2) The State must have on file with the Secretary information to 
demonstrate to the satisfaction of the Secretary that the requirements 
of paragraph (a)(1) of this section are met.
    (b) Waiver. If the State provides clear and convincing evidence that 
all children with disabilities have available to them FAPE, the 
Secretary may waive, in whole or in part, the requirements of paragraph 
(a) of this section if the Secretary concurs with the evidence provided 
by the State under Sec. 300.589.

(Authority: 20 U.S.C. 1412(a)(18)(c))


Sec. 300.154  Maintenance of State financial support.

    (a) General. The State must have on file with the Secretary 
information to demonstrate, on either a total or per-capita basis, that 
the State will not reduce the amount of State financial support for 
special education and related services for children with disabilities, 
or otherwise made available because of the excess costs of educating 
those children, below the amount of that support for the preceding 
fiscal year.
    (b) Reduction of funds for failure to maintain support. The 
Secretary reduces the allocation of funds under section 611 of the Act 
for any fiscal year following the fiscal year in which the State fails 
to comply with the requirement of paragraph (a) of this section by the 
same amount by which the State fails to meet the requirement.
    (c) Waivers for exceptional or uncontrollable circumstances. The 
Secretary may waive the requirement of paragraph (a) of this section for 
a State, for one fiscal year at a time, if the Secretary determines 
that--
    (1) Granting a waiver would be equitable due to exceptional or 
uncontrollable circumstances such as a natural disaster or a precipitous 
and unforeseen decline in the financial resources of the State; or
    (2) The State meets the standard in Sec. 300.589 for a waiver of the 
requirement to supplement, and not to supplant, funds received under 
Part B of the Act.
    (d) Subsequent years. If, for any fiscal year, a State fails to meet 
the requirement of paragraph (a) of this section,

[[Page 31]]

including any year for which the State is granted a waiver under 
paragraph (c) of this section, the financial support required of the 
State in future years under paragraph (a) of this section must be the 
amount that would have been required in the absence of that failure and 
not the reduced level of the State's support.

(Authority: 20 U.S.C. 1412(a)(19))


Sec. 300.155  Policies and procedures for use of Part B funds.

    The State must have on file with the Secretary policies and 
procedures designed to ensure that funds paid to the State under Part B 
of the Act are spent in accordance with the provisions of Part B.

(Authority: 20 U.S.C. 1412(a)(18)(A))

Sec. 300.156  Annual description of use of Part B funds.

    (a) In order to receive a grant in any fiscal year a State must 
annually describe--
    (1) How amounts retained for State-level activities under 
Sec. 300.602 will be used to meet the requirements of this part;
    (2) How those amounts will be allocated among the activities 
described in Secs. 300.621 and 300.370 to meet State priorities based on 
input from LEAs; and
    (3) The percentage of those amounts, if any, that will be 
distributed to LEAs by formula.
    (b) If a State's plans for use of its funds under Secs. 300.370 and 
300.620 for the forthcoming year do not change from the prior year, the 
State may submit a letter to that effect to meet the requirement in 
paragraph (a) of this section.

(Authority: 20 U.S.C. 1411(f)(5))

               LEA and State Agency Eeligibility--General



Sec. 300.180  Condition of assistance.

    An LEA or State agency is eligible for assistance under Part B of 
the Act for a fiscal year if the agency demonstrates to the satisfaction 
of the SEA that it meets the conditions in Secs. 300.220-300.250.

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


Sec. 300.181  Exception for prior LEA or State agency policies and 
procedures on file with the SEA.

    If an LEA or a State agency described in Sec. 300.194 has on file 
with the SEA policies and procedures that demonstrate that the LEA or 
State agency meets any requirement of Sec. 300.180, including any 
policies and procedures filed under Part B of the Act as in effect 
before June 4, 1997, the SEA shall consider the LEA or State agency to 
have met the requirement for purposes of receiving assistance under Part 
B of the Act.

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


Sec. 300.182  Amendments to LEA policies and procedures.

    (a) Modification made by an LEA or a State agency. (1) Subject to 
paragraph (b) of this section, policies and procedures submitted by an 
LEA or a State agency in accordance with this subpart remain in effect 
until it submits to the SEA the modifications that the LEA or State 
agency decides are necessary.
    (2) The provisions of this subpart apply to a modification to an 
LEA's or State agency's policies and procedures in the same manner and 
to the same extent that they apply to the LEA's or State agency's 
original policies and procedures.
    (b) Modifications required by the SEA. The SEA may require an LEA or 
a State agency to modify its policies and procedures, but only to the 
extent necessary to ensure the LEA's or State agency's compliance with 
this part, if--
    (1) After June 4, 1997, the provisions of the Act or the regulations 
in this part are amended;
    (2) There is a new interpretation of the Act by Federal or State 
courts; or
    (3) There is an official finding of noncompliance with Federal or 
State law or regulations.

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



Sec. 300.184  Excess cost requirement.

    (a) General. Amounts provided to an LEA under Part B of the Act may 
be used only to pay the excess costs of providing special education and 
related services to children with disabilities.

[[Page 32]]

    (b) Definition. As used in this part, the term excess costs means 
those costs that are in excess of the average annual per-student 
expenditure in an LEA during the preceding school year for an elementary 
or secondary school student, as may be appropriate. Excess costs must be 
computed after deducting--
    (1) Amounts received--
    (i) Under Part B of the Act;
    (ii) Under Part A of title I of the Elementary and Secondary 
Education Act of 1965; or
    (iii) Under Part A of title VII of that Act; and
    (2) Any State or local funds expended for programs that would 
qualify for assistance under any of those parts.
    (c) LLimitation on use of Part B funds. (1) The excess cost 
requirement prevents an LEA from using funds provided under Part B of 
the Act to pay for all of the costs directly attributable to the 
education of a child with a disability, subject to paragraph (c)(2) of 
this section.
    (2) The excess cost requirement does not prevent an LEA from using 
Part B funds to pay for all of the costs directly attributable to the 
education of a child with a disability in any of the ages 3, 4, 5, 18, 
19, 20, or 21, if no local or State funds are available for nondisabled 
children in that age range. However, the LEA must comply with the 
nonsupplanting and other requirements of this part in providing the 
education and services for these children.

(Authority: 20 U.S.C. 1401(7), 1413(a)(2)(A))

300.185 Meeting the excess cost requirement. 

(a)
    (1) General. An LEA meets the excess cost requirement if it has
spent at least a minimum average amount for the education of 
its children with disabilities before funds under Part B 
of the Act are   used.

    (2) The amount described in paragraph (a)(1) of this section is
determined using the formula in 300.184(b). This amount 
may not include capital outlay or debt service.

    (b) Joint establishment of eligibility. If two or more LEAs jointly
 establish eligibility in accordance with 300.190, the minimum
  average amount is the average of the combined minimum average amounts
determined under 300.184 in those agencies for elementary or 
secondary school students, as the case
may be.

(Authority: 20 U.S.C. 1413(a)(2)(A))

Secs. 300.186-300.189  [Reserved]

Sec. 300.190  Joint establishment of eligibility.

    (a) General. An SEA may require an LEA to establish its eligibility 
jointly with another LEA if the SEA determines that the LEA would be 
ineligible under this section because the agency would not be able to 
establish and maintain programs of sufficient size and scope to 
effectively meet the needs of children with disabilities.
    (b) Charter school exception. An SEA may not require a charter 
school that is an LEA to jointly establish its eligibility under 
paragraph (a) of this section unless it is explicitly permitted to do so 
under the State's charter school statute.
    (c) Amount of payments. If an SEA requires the joint establishment 
of eligibility under paragraph (a) of this section, the total amount of 
funds made available to the affected LEAs must be equal to the sum of 
the payments that each LEA would have received under Secs. 300.711-
300.714 if the agencies were eligible for these payments.

(Authority: 20 U.S.C. 1413(e)(1), and (2))


Sec. 300.192  Requirements for establishing eligibility.

    (a) Requirements for LEAs in general. LEAs that establish joint 
eligibility under this section must--
    (1) Adopt policies and procedures that are consistent with the 
State's policies and procedures under Secs. 300.121-300.156; and
    (2) Be jointly responsible for implementing programs that receive 
assistance under Part B of the Act.
    (b) Requirements for educational service agencies in general. If an 
educational service agency is required by State law to carry out 
programs under Part B of the Act, the joint responsibilities given to 
LEAs under Part B of the Act--
    (1) Do not apply to the administration and disbursement of any 
payments

[[Page 33]]

received by that educational service agency; and
    (2) Must be carried out only by that educational service agency.
    (c) Additional requirement. Notwithstanding any other provision of 
Secs. 300.190-300.192, an educational service agency shall provide for 
the education of children with disabilities in the least restrictive 
environment, as required by Sec. 300.130.

(Authority: 20 U.S.C. 1413(e)(3), and (4))



Sec. 300.194  State agency eligibility.

    Any State agency that desires to receive a subgrant for any fiscal 
year under Secs. 300.711-300.714 must demonstrate to the satisfaction of 
the SEA that--
    (a) All children with disabilities who are participating in programs 
and projects funded under Part B of the Act receive FAPE, and that those 
children and their parents are provided all the rights and procedural 
safeguards described in this part; and
    (b) The agency meets the other conditions of this subpart that apply 
to LEAs.

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


Sec. 300.196  Notification of LEA or State agency in case of ineligibility.

    If the SEA determines that an LEA or State agency is not eligible 
under Part B of the Act, the SEA shall--
    (a) Notify the LEA or State agency of that determination; and
    (b) Provide the LEA or State agency with reasonable notice and an 
opportunity for a hearing.

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


Sec. 300.197  LEA and State agency compliance.

    (a) General. If the SEA, after reasonable notice and an opportunity 
for a hearing, finds that an LEA or State agency that has been 
determined to be eligible under this section is failing to comply with 
any requirement described in Secs. 300.220-300.250, the SEA shall reduce 
or may not provide any further payments to the LEA or State agency until 
the SEA is satisfied that the LEA or State agency is complying with that 
requirement.
    (b) Notice requirement. Any State agency or LEA in receipt of a 
notice described in paragraph (a) of this section shall, by means of 
public notice, take the measures necessary to bring the pendency of an 
action pursuant to this section to the attention of the public within 
the jurisdiction of the agency.
    (c) In carrying out its functions under this section, each SEA shall 
consider any decision resulting from a hearing under Secs. 300.507-
300.528 that is adverse to the LEA or State agency involved in the 
decision.

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

          LEA and State Agency Eligibility--Specific Conditions


Sec. 300.220  Consistency with State policies.

    (a) General. The LEA, in providing for the education of children 
with disabilities within its jurisdiction, must have in effect policies, 
procedures, and programs that are consistent with the State policies and 
procedures established under Secs. 300.121-300.156.
    (b) Policies on file with SEA. The LEA must have on file with the 
SEA the policies and procedures described in paragraph (a) of this 
section.

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

Secs. 300.222-300.229  [Reserved]

Sec. 300.230  Use of amounts.

    The LEA must have on file with the SEA information to demonstrate 
that amounts provided to the LEA under Part B of the Act--
    (a) Will be expended in accordance with the applicable provisions of 
this part;
    (b) Will be used only to pay the excess costs of providing special 
education and related services to children with disabilities, consistent 
with Secs. 300.184-300.185; and
    (c) Will be used to supplement State, local, and other Federal funds 
and not to supplant those funds.

(Authority: 20 U.S.C. 1413(a)(2)(A))



Sec. 300.231  Maintenance of effort.

    (a) General. Except as provided in Secs. 300.232 and 300.233, funds 
provided to an LEA under Part B of the Act may not be used to reduce the 
level of expenditures for the education of children with disabilities 
made by the LEA from local funds below the level of those expenditures 
for the preceding fiscal year.
    (b) Information. The LEA must have on file with the SEA information 
to demonstrate that the requirements of paragraph (a) of this section 
are met.
    (c) Standard. (1) Except as provided in paragraph (c)(2) of this 
section, the SEA determines that an LEA complies with paragraph (a) of 
this section for purposes of establishing the LEA's eligibility for an 
award for a fiscal year if the LEA budgets, for the education of 
children with disabilities, at least the same total or per-capita amount 
from either of the following sources as the LEA spent for that purpose 
from the same source for the most recent prior year for which 
information is available:
    (i) Local funds only.
    (ii) The combination of State and local funds.
    (2) An LEA that relies on paragraph (c)(1)(i) of this section for 
any fiscal year must ensure that the amount of local funds it budgets 
for the education of children with disabilities in that year is at least 
the same, either in total or per capita, as the amount it spent for that 
purpose in--
    (i) The most recent fiscal year for which information is available, 
if that year is, or is before, the first fiscal year beginning on or 
after July 1, 1997; or
    (ii) If later, the most recent fiscal year for which information is 
available and the standard in paragraph (c)(1)(i) of this section was 
used to establish its compliance with this section.
    (3) The SEA may not consider any expenditures made from funds 
provided by the Federal Government for which the SEA is required to 
account to the Federal Government or for which the LEA is required to 
account to the Federal Government directly or through the SEA in 
determining an LEA's compliance with the requirement in paragraph (a) of 
this section.

(Authority: 20 U.S.C. 1413(a)(2)(A))

Sec. 300.232  Exception to maintenance of effort.

    An LEA may reduce the level of expenditures by the LEA under Part B 
of the Act below the level of those expenditures for the preceding 
fiscal year if the reduction is attributable to the following:
    (a)(1) The voluntary departure, by retirement or otherwise, or 
departure for just cause, of special education or related services 
personnel, who are replaced by qualified, lower-salaried staff.
    (2) In order for an LEA to invoke the exception in paragraph (a)(1) 
of this section, the LEA must ensure that those voluntary retirements or 
resignations and replacements are in full conformity with:
    (i) Existing school board policies in the agency;
    (ii) The applicable collective bargaining agreement in effect at 
that time; and
    (iii) Applicable State statutes.
    (b) A decrease in the enrollment of children with disabilities.
    (c) The termination of the obligation of the agency, consistent with 
this part, to provide a program of special education to a particular 
child with a disability that is an exceptionally costly program, as 
determined by the SEA, because the child--

[[Page 35]]

    (1) Has left the jurisdiction of the agency;
    (2) Has reached the age at which the obligation of the agency to 
provide FAPE to the child has terminated; or
    (3) No longer needs the program of special education.
    (d) The termination of costly expenditures for long-term purchases, 
such as the acquisition of equipment or the construction of school 
facilities.

(Authority: 20 U.S.C. 1413(a)(2)(B))

Sec. 300.233  Treatment of Federal funds in certain fiscal years.

    (a)(1) Subject to paragraphs (a)(2) and (b) of this section, for any 
fiscal year for which amounts appropriated to carry out section 611 of 
the Act exceeds $4,100,000,000, an LEA may treat as local funds up to 20 
percent of the amount of funds it receives under Part B of the Act that 
exceeds the amount it received under Part B of the Act for the previous 
fiscal year.
    (2) The requirements of Secs. 300.230(c) and 300.231 do not apply 
with respect to the amount that may be treated as local funds under 
paragraph (a)(1) of this section.
    (b) If an SEA determines that an LEA is not meeting the requirements 
of this part, the SEA may prohibit the LEA from treating funds received 
under Part B of the Act as local funds under paragraph (a)(1) of this 
section for any fiscal year, but only if it is authorized to do so by 
the State constitution or a State statute.

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


Sec. 300.234  Schoolwide programs under title I of the ESEA.

    (a) General; limitation on amount of Part B funds used. An LEA may 
use funds received under Part B of the Act for any fiscal year to carry 
out a schoolwide program under section 1114 of the Elementary and 
Secondary Education Act of 1965, except that the amount used in any 
schoolwide program may not exceed--
    (1)(i) The amount received by the LEA under Part B for that fiscal 
year; divided by
    (ii) The number of children with disabilities in the jurisdiction of 
the LEA; and multiplied by
    (2) The number of children with disabilities participating in the 
schoolwide program.
    (b) Funding conditions. The funds described in paragraph (a) of this 
section are subject to the following conditions:
    (1) The funds must be considered as Federal Part B funds for 
purposes of the calculations required by Secs. 300.230(b) and (c).
    (2) The funds may be used without regard to the requirements of 
Sec. 300.230(a).
    (c) Meeting other Part B requirements. Except as provided in 
paragraph (b) of this section, all other requirements of Part B must be 
met by an LEA using Part B funds in accordance with paragraph (a) of 
this section, including ensuring that children with disabilities in 
schoolwide program schools--
    (1) Receive services in accordance with a properly developed IEP; 
and
    (2) Are afforded all of the rights and services guaranteed to 
children with disabilities under the IDEA.

(Authority: 20 U.S.C. 1413(a)(2)(D))


Secs. 300.236-300.239  [Reserved]


Sec. 300.240  Information for SEA.

    (a) The LEA shall provide the SEA with information necessary to 
enable the SEA to carry out its duties under Part B of the Act, 
including, with respect to Secs. 300.137 and 300.138, information 
relating to the performance of children with disabilities participating 
in programs carried out under Part B of the Act.
    (b) The LEA must have on file with the SEA an assurance satisfactory 
to the SEA that the LEA will comply with the requirements of paragraph 
(a) of this section.

(Authority: 20 U.S.C. 1413(a)(6))


Sec. 300.241  Treatment of charter schools and their students.

    The LEA must have on file with the SEA information to demonstrate 
that in carrying out this part with respect to charter schools that are 
public schools of the LEA, the LEA will--
    (a) Serve children with disabilities attending those schools in the 
same manner as it serves children with disabilities in its other 
schools; and
    (b) Provide funds under Part B of the Act to those schools in the 
same manner as it provides those funds to its other schools.

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


Sec. 300.242  Public information.

    The LEA must have on file with the SEA information to demonstrate to 
the satisfaction of the SEA that it will make available to parents of 
children with disabilities and to the general public all documents 
relating to the eligibility of the agency under Part B of the Act.

(Authority: 20 U.S.C. 1413(a)(7))



Sec. 300.244  Coordinated services system.

    (a) General. An LEA may not use more than 5 percent of the amount 
the agency receives under Part B of the Act for any fiscal year, in 
combination with other amounts (which must include amounts other than 
education funds), to develop and implement a coordinated services system 
designed to improve results for children and families, including 
children with disabilities and their families.
    (b) Activities. In implementing a coordinated services system under 
this section, an LEA may carry out activities that include--
    (1) Improving the effectiveness and efficiency of service delivery, 
including developing strategies that promote accountability for results;
    (2) Service coordination and case management that facilitate the 
linkage of IEPs under Part B of the Act and IFSPs under Part C of the 
Act with individualized service plans under multiple Federal and State 
programs, such as title I of the Rehabilitation Act of 1973 (vocational 
rehabilitation), title XIX of the Social Security Act (Medicaid), and 
title XVI of the Social Security Act (supplemental security income);
    (3) Developing and implementing interagency financing strategies for 
the provision of education, health, mental health, and social services, 
including transition services and related services under the Act; and
    (4) Interagency personnel development for individuals working on 
coordinated services.
    (c) Coordination with certain projects under Elementary and 
Secondary Education Act of 1965. If an LEA is carrying out a coordinated 
services project under title XI of the Elementary and Secondary 
Education Act of 1965 and a coordinated services project under Part B of 
the Act in the same schools, the agency shall use the amounts under 
Sec. 300.244 in accordance with the requirements of that title.

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

                      School-Based Improvement Plan



Sec. 300.245  School-based improvement plan.

    (a) General. Each LEA may, in accordance with paragraph (b) of this 
section, use funds made available under Part B of the Act to permit a 
public school within the jurisdiction of the LEA to design, implement, 
and evaluate a school-based improvement plan that--
    (1) Is consistent with the purposes described in section 651(b) of 
the Act; and

[[Page 37]]

    (2) Is designed to improve educational and transitional results for 
all children with disabilities and, as appropriate, for other children 
consistent with Sec. 300.235(a) and (b) in that public school.
    (b) Authority. (1) General. An SEA may grant authority to an LEA to 
permit a public school described in Sec. 300.245 (through a school-based 
standing panel established under Sec. 300.247(b)) to design, implement, 
and evaluate a school-based improvement plan described in Sec. 300.245 
for a period not to exceed 3 years.
    (2) Responsibility of LEA. If an SEA grants the authority described 
in paragraph (b)(1) of this section, an LEA that is granted this 
authority must have the sole responsibility of oversight of all 
activities relating to the design, implementation, and evaluation of any 
school-based improvement plan that a public school is permitted to 
design under this section.

(Authority: 20 U.S.C. 1413(g)(1) and (g)(2)).



Sec. 300.246  Plan requirements.

    A school-based improvement plan described in Sec. 300.245 must--
    (a) Be designed to be consistent with the purposes described in 
section 651(b) of the Act and to improve educational and transitional 
results for all children with disabilities and, as appropriate, for 
other children consistent with Sec. 300.235(a) and (b), who attend the 
school for which the plan is designed and implemented;
    (b) Be designed, evaluated, and, as appropriate, implemented by a 
school-based standing panel established in accordance with 
Sec. 300.247(b);
    (c) Include goals and measurable indicators to assess the progress 
of the public school in meeting these goals; and
    (d) Ensure that all children with disabilities receive the services 
described in their IEPs.

(Authority: 20 U.S.C. 1413(g)(3))



Sec. 300.247  Responsibilities of the LEA.

    An LEA that is granted authority under Sec. 300.245(b) to permit a 
public school to design, implement, and evaluate a school-based 
improvement plan shall--
    (a) Select each school under the jurisdiction of the agency that is 
eligible to design, implement, and evaluate the plan;
    (b) Require each school selected under paragraph (a) of this 
section, in accordance with criteria established by the LEA under 
paragraph (c) of this section, to establish a school-based standing 
panel to carry out the duties described in Sec. 300.246(b);
    (c) Establish--
    (1) Criteria that must be used by the LEA in the selection of an 
eligible school under paragraph (a) of this section;
    (2) Criteria that must be used by a public school selected under 
paragraph (a) of this section in the establishment of a school-based 
standing panel to carry out the duties described in Sec. 300.246(b) and 
that ensure that the membership of the panel reflects the diversity of 
the community in which the public school is located and includes, at a 
minimum--
    (i) Parents of children with disabilities who attend a public 
school, including parents of children with disabilities from unserved 
and underserved populations, as appropriate;
    (ii) Special education and general education teachers of public 
schools;
    (iii) Special education and general education administrators, or the 
designee of those administrators, of those public schools; and
    (iv) Related services providers who are responsible for providing 
services to the children with disabilities who attend those public 
schools; and
    (3) Criteria that must be used by the LEA with respect to the 
distribution of funds under Part B of the Act to carry out this section;
    (d) Disseminate the criteria established under paragraph (c) of this 
section to local school district personnel and local parent 
organizations within the jurisdiction of the LEA;
    (e) Require a public school that desires to design, implement, and 
evaluate a school-based improvement plan to submit an application at the 
time, in the manner and accompanied by the information, that the LEA 
shall reasonably require; and

[[Page 38]]

    (f) Establish procedures for approval by the LEA of a school-based 
improvement plan designed under Part B of the Act.

(Authority:1413(g)(4))



Sec. 300.248  Limitation.

    A school-based improvement plan described in Sec. 300.245(a) may be 
submitted to an LEA for approval only if a consensus with respect to any 
matter relating to the design, implementation, or evaluation of the 
goals of the plan is reached by the school-based standing panel that 
designed the plan.

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


Sec. 300.249  Additional requirements.

    (a) Parental involvement. In carrying out the requirements of 
Secs. 300.245-300.250, an LEA shall ensure that the parents of children 
with disabilities are involved in the design, evaluation, and, if 
appropriate, implementation of school-based improvement plans in 
accordance with this section.
    (b) Plan approval. An LEA may approve a school-based improvement 
plan of a public school within the jurisdiction of the agency for a 
period of 3 years, if--
    (1) The approval is consistent with the policies, procedures, and 
practices established by the LEA and in accordance with Secs. 300.245-
300.250; and
    (2) A majority of parents of children who are members of the school-
based standing panel, and a majority of other members of the school-
based standing panel that designed the plan, agree in writing to the 
plan.

(Authority: 20 U.S.C. 1413(g)(6))



Sec. 300.250  Extension of plan.

    If a public school within the jurisdiction of an LEA meets the 
applicable requirements and criteria described in Secs. 300.246 and 
300.247 at the expiration of the 3-year approval period described 
Sec. 300.249(b), the agency may approve a school-based improvement plan 
of the school for an additional 3-year period.

(Authority: 20 U.S.C. 1413(g)(7))

                 Secretary of the Interior--Eligibility


Sec. 300.260  Submission of information.

    The Secretary may provide the Secretary of the Interior amounts 
under Sec. 300.715(b) and (c) for a fiscal year only if the Secretary of 
the Interior submits to the Secretary information that--
    (a) Meets the requirements of section 612(a)(1), (3)--(9), (10)(B), 
(C), (11)--(12), (14)--(17), (20), (21) and (22) of the Act (including 
monitoring and evaluation activities);
    (b) Meets the requirements of section 612(b) and (e) of the Act;
    (c) Meets the requirements of section 613(a)(1), (2)(A)(i), (6), and 
(7) of the Act;
    (d) Meets the requirements of this part that implement the sections 
of the Act listed in paragraphs (a)-(c) of this section;
    (e) Includes a description of how the Secretary of the Interior will 
coordinate the provision of services under Part B of the Act with LEAs, 
tribes and tribal organizations, and other private and Federal service 
providers;
    (f) Includes an assurance that there are public hearings, adequate 
notice of the hearings, and an opportunity for comment afforded to 
members of tribes, tribal governing bodies, and affected local school 
boards before the adoption of the policies, programs, and procedures 
described in paragraph (a) of this section;
    (g) Includes an assurance that the Secretary of the Interior will 
provide the information that the Secretary may require to comply with 
section 618 of the Act, including data on the number of children with 
disabilities served and the types and amounts of services provided and 
needed;
    (h)(1) Includes an assurance that the Secretary of the Interior and 
the Secretary of Health and Human Services have entered into a 
memorandum of agreement, to be provided to the Secretary, for the 
coordination of services, resources, and personnel between their 
respective Federal, State, and local offices and with the SEAs and LEAs 
and other entities to facilitate the provision of services to Indian 
children with

[[Page 39]]

disabilities residing on or near reservations.
    (2) The agreement must provide for the apportionment of 
responsibilities and costs, including child find, evaluation, diagnosis, 
remediation or therapeutic measures, and (if appropriate) equipment and 
medical or personal supplies, as needed for a child with a disability to 
remain in a school or program; and
    (i) Includes an assurance that the Department of the Interior will 
cooperate with the Department in its exercise of monitoring and 
oversight of the requirements in this section and Secs. 300.261-300.267, 
and any agreements entered into between the Secretary of the Interior 
and other entities under Part B of the Act, and will fulfill its duties 
under Part B of the Act. Section 616(a) of the Act applies to the 
information described in this section.

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



Sec. 300.261  Public participation.

    In fulfilling the requirements of Sec. 300.260 the Secretary of the 
Interior shall provide for public participation consistent with 
Secs. 300.280-300.284.

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



Sec. 300.262  Use of Part B funds.

    (a) The Department of the Interior may use five percent of its 
payment under Sec. 300.715(b) and (c) in any fiscal year, or $500,000, 
whichever is greater, for administrative costs in carrying out the 
provisions of this part.
    (b) Payments to the Secretary of the Interior under Sec. 300.716 
must be used in accordance with that section.

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

Sec. 300.263  Plan for coordination of services.

    (a) The Secretary of the Interior shall develop and implement a plan 
for the coordination of services for all Indian children with 
disabilities residing on reservations covered under Part B of the Act.
    (b) The plan must provide for the coordination of services 
benefiting these children from whatever source, including tribes, the 
Indian Health Service, other BIA divisions, and other Federal agencies.
    (c) In developing the plan, the Secretary of the Interior shall 
consult with all interested and involved parties.
    (d) The plan must be based on the needs of the children and the 
system best suited for meeting those needs, and may involve the 
establishment of cooperative agreements between the BIA, other Federal 
agencies, and other entities.
    (e) The plan also must be distributed upon request to States, SEAs 
and LEAs, and other agencies providing services to infants, toddlers, 
and children with disabilities, to tribes, and to other interested 
parties.

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



Sec. 300.264  Definitions.

    (a) Indian. As used in this part, the term Indian means an 
individual who is a member of an Indian tribe.
    (b) Indian tribe. As used in this part, the term Indian tribe means 
any Federal or State Indian tribe, band, rancheria, pueblo, colony, or 
community, including any Alaska Native village or regional village 
corporation (as defined in or established under the Alaska Native Claims 
Settlement Act).

(Authority: 20 U.S.C. 1401(9) and (10))


Sec. 300.265  Establishment of advisory board.

    (a) To meet the requirements of section 612(a)(21) of the Act, the 
Secretary of the Interior shall establish, not later than December 4, 
1997 under the BIA, an advisory board composed of individuals involved 
in or concerned with the education and provision of services to Indian 
infants, toddlers, and children with disabilities, including Indians 
with disabilities, Indian parents of the children, teachers, service 
providers, State and local educational officials, representatives of 
tribes or tribal organizations, representatives from State Interagency 
Coordinating Councils under section 641 of the Act in States having 
reservations, and other members representing the various divisions and 
entities of the BIA. The chairperson must be selected by the Secretary 
of the Interior.
    (b) The advisory board shall--

[[Page 40]]

    (1) Assist in the coordination of services within the BIA and with 
other local, State, and Federal agencies in the provision of education 
for infants, toddlers, and children with disabilities;
    (2) Advise and assist the Secretary of the Interior in the 
performance of the Secretary's responsibilities described in section 
611(i) of the Act;
    (3) Develop and recommend policies concerning effective inter- and 
intra-agency collaboration, including modifications to regulations, and 
the elimination of barriers to inter- and intra-agency programs and 
activities;
    (4) Provide assistance and disseminate information on best 
practices, effective program coordination strategies, and 
recommendations for improved educational programming for Indian infants, 
toddlers, and children with disabilities; and
    (5) Provide assistance in the preparation of information required 
under Sec. 300.260(g).

(Authority: 20 U.S.C. 1411(i)(5))



Sec. 300.266  Annual report by advisory board.

    (a) General. The advisory board established under Sec. 300.265 shall 
prepare and submit to the Secretary of the Interior and to the Congress 
an annual report containing a description of the activities of the 
advisory board for the preceding year.
    (b) Report to the Secretary. The Secretary of the Interior shall 
make available to the Secretary the report described in paragraph (a) of 
this section.

(Authority: 20 U.S.C. 1411(i)(6)(A))


Sec. 300.267  Applicable regulations.

    The Secretary of the Interior shall comply with the requirements of 
Secs. 300.301-300.303, 300.305-300.309, 300.340-300.348, 300.351, 
300.360-300.382, 300.400-300.402, 300.500-300.586, 300.600-300.621, and 
300.660-300.662.

(Authority: 20 U.S.C. 1411(i)(2)(A))

                          Public Participation


Sec. 300.280  Public hearings before adopting State policies and procedures.

    Prior to its adoption of State policies and procedures related to 
this part, the SEA shall--
    (a) Make the policies and procedures available to the general 
public;
    (b) Hold public hearings; and
    (c) Provide an opportunity for comment by the general public on the 
policies and procedures.

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



Sec. 300.281  Notice.

    (a) The SEA shall provide adequate notice to the general public of 
the public hearings.
    (b) The notice must be in sufficient detail to inform the general 
public about--
    (1) The purpose and scope of the State policies and procedures and 
their relation to Part B of the Act;
    (2) The availability of the State policies and procedures;
    (3) The date, time, and location of each public hearing;
    (4) The procedures for submitting written comments about the 
policies and procedures; and
    (5) The timetable for submitting the policies and procedures to the 
Secretary for approval.
    (c) The notice must be published or announced--
    (1) In newspapers or other media, or both, with circulation adequate 
to notify the general public about the hearings; and
    (2) Enough in advance of the date of the hearings to afford 
interested parties throughout the State a reasonable opportunity to 
participate.

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



Sec. 300.282  Opportunity to participate; comment period.

    (a) The SEA shall conduct the public hearings at times and places 
that afford interested parties throughout the State a reasonable 
opportunity to participate.
    (b) The policies and procedures must be available for comment for a 
period of at least 30 days following the date of the notice under 
Sec. 300.281.

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


Sec. 300.283  Review of public comments before adopting policies and procedures.

    Before adopting the policies and procedures, the SEA shall--

[[Page 41]]

    (a) Review and consider all public comments; and
    (b) Make any necessary modifications in those policies and 
procedures.

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


Sec. 300.284  Publication and availability of approved policies and procedures.

    After the Secretary approves a State's policies and procedures, the 
SEA shall give notice in newspapers or other media, or both, that the 
policies and procedures are approved. The notice must name places 
throughout the State where the policies and procedures are available for 
access by any interested person.

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


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

The ECTA Center is a program of the FPG Child Development Institute of the University of North Carolina at Chapel Hill, funded through cooperative agreement number H326P170001 from the Office of Special Education Programs, U.S. Department of Education. Opinions expressed herein do not necessarily represent the Department of Education's position or policy.

Project Officer: Julia Martin Eile     © 2012-2018 ECTA Center

  • UNC Frank Porter Graham Child Development Institute