[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
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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
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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
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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
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(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.
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(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--
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(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
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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
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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
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(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
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(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--
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(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))